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California employers should be aware of significant new state laws which take effect on January 1, 2014. These include:

Protected Categories Expanded to Include Military and Veteran Status. – Assembly Bill 556 adds “military and veteran status” to the list of categories protected from employment discrimination.

Prohibition of “Unfair Immigration-Related Practices” – Assembly Bill 263 prohibits employers from engaging in “unfair immigration-related practices,” which could include contacting or threatening to contact immigration authorities, because an employee asserts protected rights under the California Labor Code. Other immigrant protection legislation effective Jan. 1, 2014 includes SB 666 (business license revocation for threatening to report immigration status), and AB 524 (authorizes criminal extortion for threatening to report immigration status).

Domestic Worker Bill of Rights – Assembly Bill 241 creates a Domestic Worker Bill of Rights. This provides specific overtime pay for a “domestic work employee who is a personal attendant.” The bill has many specific definitions and exclusions.

Heat Illness Recovery Periods – Senate Bill 435 expands meal and rest break prohibitions to include “recovery” periods necessary to prevent heat illness. Penalty mirrors premium for failing to provide meal or rest breaks (i.e., one additional hour of pay for each workday that meal, rest, heat illness recovery period not provided). Unlike the meal and rest period rules which provide a clear guidance on timing, however, the need for a heat illness recovery period is subjective and determined by the employee. Employers with outdoor workers need to ensure their Heat Illness Prevention programs comply with Cal-OSHA regulations.

Leaves Required for Victims of Certain Crimes – Two important new laws. Senate Bill 288 provides protections for victims of certain crimes (including solicitation for murder and vehicular manslaughter while intoxicated) who take time off from work to appear in court proceedings. SB 400 extends protections for victims of domestic violence or sexual assault or victims of stalking, including time off to appear at legal proceedings and to seek medical/psychological treatment. This law adds a reasonable accommodation requirement—which can include implementation of safety measures—for victims of domestic violence, sexual assault or stalking.

Expanded Scope of Whistleblower Protections – California Labor Code Section 1102.5 already provides protections for employees who report violations of federal or state statutes. Senate Bill 496 expands this protection to include suspected violations of a local rule or regulation, and will include reporting violations to “a person with authority over the employee or another employee who has authority to investigate, discover or correct the violation.”

What would his sentences be like? Would they read like his prose, if the prose that he wrote read like this?

“It was this look on the face that (slowly) turned left to look at her from the ambulance–a face that in the very most enuretic and disturbing way both was and was not the face of the husband she loved — that galvanized Jeni Roberts awake and prompted her to gather every bit of her nerve together and make the frantic humiliating call to the man she had once thought very seriously of marrying, an associate sales manager and probationary Rotarian whose own facial asymmetry — he had suffered a serious childhood accident that subsequently caused the left half of his face to develop differently from the right side of his face; his left nostril was unusually large, and gaped, and his left eye, which appeared to be almost all iris, was surrounded by concentric rings and bags of slack flesh that constantly twitched and throbbed as irreversibly damaged nerves randomly fired — was what, Jeni decided after their relationship foundered, had helped fuel her uncontrollable suspicion that he had a secret, impenetrable part to his character that fantasized about lovemaking with other women even while his healthy, perfectly symmetrical, and seemingly uninjurable thingie was inside her.” (Brief Interviews With Hideous Men, “Adult World (I),” p.153.)

Scary? Sure, if you’re the appellate justice’s long-suffering clerk. You might wonder, then, why legal writing guru Bryan Garner took the time to interview said Literary God–David Foster Wallace–about persuasive legal writing, before the LG’s untimely death by suicide in 2008.

Well, wonder no longer. As highlighted in a recent article by Garner himself in the ABA Journal, it turns out that, although his fiction is often . . . er . . . challenging, DFW has something to say about persuasive writing, not only from the perspective of an innovative novelist, but also as both an essayist and an academic. Among the things he said:

“So when I teach nonfiction classes, I spend a disproportionate amount of my time teaching the students how to write transitions, even as simple ones as however and moreover between sentences. Because part of their belief that the reader can somehow read their mind is their failure to see that the reader needs help understanding how two sentences are connected to each other—and also transitions between paragraphs.

I’m thinking of the argumentative things that I like the best, and because of this situation the one that pops into my mind is Orwell’s “Politics and the English Language.” If you look at how that’s put together, there’s a transition in almost every single paragraph. Like: “Moreover, not only is this offense common, but it is harmful in this way.” You know where he is in the argument, but you never get the sense that he’s ticking off items on a checklist; it’s part of an organic whole. My guess would be, if I were an argumentative writer, that I would spend one draft on just the freaking argument, ticking it off like a checklist, and then the real writing part would be weaving it and making the transitions between the parts of the argument—and probably never abandoning the opening, never letting the reader forget what the stakes are here. Right? Never letting the reader think that I’ve lapsed into argument for argument’s sake, but that there’s always a larger, overriding purpose.”

I’m looking forward to the book that contains the fruits of this interview, Quack This Way: David Foster Wallace & Bryan A. Garner Talk Language and Writing. Royalties from the book will apparently support the David Foster Wallace literary archive housed at the Harry Ransom Center at the University of Texas at Austin.

Thank you, ABA Journal for generously including At Counsel Table in the 2013 Blawg 100!

I was pleased to see the familiar names of some great blogs on the list this year, including Max Kennerly’s Litigation and Trial, Popehat, FMLA Insights, Careerist, Philly Law Blog and Jonathan Turley.

But I was disappointed to see a slew of really great law blogs were left off the list. These include Associate’s Mind, What About Clients, My Shingle and the reliably irascible Simple Justice. I can only think these blogs have become simply too rich and famous for inclusion in the Blawg 100. But I highly recommend each of these sites; visit them often.

I also encourage you to register and vote HERE for your favorite blogs, which could include At Counsel Table.

Thanks, again, ABA Journal.

We could debate for hours whether compelling public speakers are born with that gift or they achieve it through diligent practice. I suspect that, like many skills, it’s probably a bit of both. Few would disagree that everyone benefits from practice. Practice with honest feedback can be particularly helpful. This is why I’m a big fan of Toastmasters.

I think it’s probably also true that many speakers can sometimes make major improvements just by making a small tweak in the style, content, or both, of their presentation. Here I’m thinking about some advice I came across in Brian Johnson and Marsha Hunter’s recent book, The Articulate Attorney (2nd Ed. 2013). They discuss the difficulties we encounter in maintaining audience attention. This problem is crucial if your goal in speaking is anything other than pure entertainment because it is unlikely your audience–a jury, for example–will process and retain anything you say if they’re not paying attention. Johnson and Hunter write:

“Listeners pay close attention to the beginnings of presentations. Minds often wander in the middle, and retention drops. When the listener gets a signal that the end is near–‘In conclusion . . .’–attention increases once again. Primacy is the first thing listeners hear; recency is the last.” (Id. at 85.)

I have elsewhere heard a variation on this observation, with the attendant advice that one should structure a presentation so that the really important information comes at the beginning and the end. I suppose that’s better than nothing. But the logical implication is that the information that comes between the beginning and the end is less important, or not important at all. I don’t know about you, but I try to leave information that is less important or unimportant out altogether. And we can’t very well just have a beginning and an end with no middle, can we?

Johnson and Hunter offer a superior alternative. They urge speakers to “chunk,” or divide larger bits of information into smaller chunks, which is easier for the human brain to receive, process and retain. Additionally, rather than a speech which consists of one strong beginning, a middle and one strong ending, they urge speakers to create several rather discrete chunks, each with its own beginning, middle and ending. They write:

“Since beginnings and endings are good, create more of them. Rather than conceive your presentation as having one beginning and one ending, clearly delineate each topic area. Begin new topics with a headline (begin/primacy) and explicitly mark the conclusion of the topic with a wrap-up (end/recency). When your major ideas are demarcated in this fashion, your presentation will have many beginnings and endings. Each time a new topic is headlined and closed out, the daydreaming (or emailing) listener’s attention is refreshed.” (Id. at 87.)

So go on, be a “chunker.”

Do you fight over discovery? Admit it. It’s ok, we’re all friends here, no?

Apparently lawyers still wage discovery battles. I won’t pretend that I’m immune. I still mix it up with the best of them. But I came across an article in the November, 2013 issue of Practical Law which attempts to make a compelling case why we might serve our clients better by adopting a spirit of cooperation.

In their article, “Learning to Cooperate,” Jonathan Redgrave and Peter Hennigan talk about The Cooperation Proclamation originally published by The Sedona Conference in 2008. They say:

“At the time of its release, The Cooperation Proclamation provided attorneys with a practical, if aspirational, framework to understand cooperation. Today, there is really no longer any question of whether or not counsel should cooperate in discovery. Cooperation is required by the current and proposed rules, expected by the courts and consistent with attorneys’ ethical obligations. Perhaps most important, cooperation is also what the clients want.” (Id. at 27.)

Well hold on now. Isn’t litigation an adversarial process? What about zealous advocacy? We’re talking about opposing parties and opposing counsel here, right?

Merriam-Webster defines “cooperation”–which, in case you wondered, is pronounced (?)k?-?ä-p?-?r?-sh?n–as “1 : the action of cooperating: common effort; 2 : association of persons for common benefit.”

“Common effort?” “Common benefit?” What!?! Your guy sued my guy, right? You’re demanding some ridiculous sum of money and, because my client won’t just pay you, you’ve prepared and filed a civil complaint, dragging my client into court, isn’t that right? Why on God’s green earth would my client want to make any common effort to do anything for your client’s benefit?

Before we get our dandruff up,† let’s stop for a second and find out what “cooperation” is supposed to mean in this context. Are we supposed to just give in? Roll over? Do our opponent’s job for them? The authors claim the answer is no.  Citing the Proclamation, Redgrave and Hennigan say:

“The Sedona Conference explicitly states that cooperation:

•  Is not capitulation.

• Is not an abdication of appropriate and vigorous advocacy.

• Does not require volunteering legal theories to opposing counsel or suggesting paths along which discovery might take place.” (Id., citing The Case for Cooperation, 10 Sedona Conf. J., 339, 340, 359 (2009).)

What’s left? Here, the authors offer some “ABCs of Cooperation.” A few of these make a lot of sense:

• “Be flexible. Like any negotiation, counsel may have to compromise or use alternative means to get the discovery or relief that the client needs.

• Consider what discovery is truly needed, and not just desired.

• Document the agreements reached with opposing counsel, as well as any areas of dispute, and try to obtain resolution without the court’s intervention where possible.” (Id. at 29.)

I can go along with these. But I think it needs to be said that the rationale underlying this spirit of cooperation should properly be that it ultimately benefits our clients. If done properly, cooperation in litigation and discovery saves our clients money. It makes their lives easier. As the authors point out:

“The best argument in favor of cooperation is that clients want it. Clients are beginning to realize that a scorched-earth approach to discovery, and the wasteful and time-consuming discovery disputes such an approach invites, rarely (if ever) serves their interests. Moreover, clients want cooperation because they recognize that being cooperative enhances their attorneys’ credibility with the court.” (Id.)

Where I part ways with the authors is their appeal to some other, ethereal motive for cooperation. They spend a lot of time citing various courts and model rules, etc. and harp on about “duties to the tribunal, the judicial system, opposing counsel and opposing parties.” (Id.) Blah, blah, blah. Save it! What matters at the end of the day–at least for those of us in the trenches–is getting the best possible outcome for our clients. If the straightest road to that result is through cooperation, I’m all for it. But let’s not forget it’s our client–not opposing counsel or opposing parties–who keeps the lights burning.  

†The earliest known citation for this strange saying was in the April, 1853 Wisconsin Tribune, wherein someone apparently wrote: “‘Well, gosh-all Jerusalem, what of it?’ now yelled the downeaster, getting his dandruff up.”

I previously wrote about the circumstances in which it makes sense strategically, financially or otherwise to involve local counsel. Here I want to draw on my experiences as an attorney who has frequently both hired and been hired as local counsel to offer some suggestions on ways you can be an outstanding local counsel.

One observation at the outset. Some lawyers or firms view the role of being local counsel to another “lead” lawyer or firm as less than desirable. They see it as somehow akin to being a second class citizen in the context of a lawsuit (or, I suppose, deal). While lawyers who have this attitude will usually swallow their pride and do the work, assuming they perceive the engagement as fiscally attractive, they never really put their hearts into it. I’ve had good fortune over the years with the firms I’ve hired as local counsel. And I hope my client firms have felt I brought value to our cases.

But I have sensed this kind of friction on occasion, particularly where my partners and I, as lead counsel, insist we do tasks that local counsel believe (perhaps accurately) that they would perform better and cheaper. This decision is usually based either on our financial arrangement with the client (a flat fee, for example) or because we perceive the client expects that we, as lead counsel, will do the work. There’s not much to say to local counsel in these circumstances beyond, I suppose, get over it.

With that piece of throat-clearing out of the way, here are some thoughts about what local counsel can do to set themselves apart and, in doing so, make future engagements more likely.

1. Put yourself in lead counsel’s shoes. Acting as local counsel is unique and calls for a kind of flexible, outside-the-box kind of thinking. Rather than “how would I handle this (situation, development, procedural requirement, etc.)?” the relevant question becomes “what does the client (i.e., lead) firm need to know in order to make an informed decision what to do under the circumstances.” This can be challenging because it may require a lawyer to suppress or ignore her own instincts about what to do, which sometimes conflicts with what the client/lead firm ultimately decides to do.

2. Don’t take much (or anything) for granted. Experience litigating in multiple venues may give us an idea how things are “generally done.” But some jurisdictions do things radically different. For example, the state courts in my home, California, have a very specific procedural scheme, particularly with respect to expert discovery. Out-of-state practitioners struggle to follow our rules of civil procedure because they are unique. Other states adopt procedures that seem to mirror the Federal Rules. The key for local counsel is not to assume your lead counsel knows what is required, even if your state court procedure is mostly on par with the Federal Rules.

3. What do you know about the judge? This is probably obvious, but one of the reasons to hire local counsel is for information and to have local connections. The best local counsel are active in their local bar association and/or Inns of Court. Excluding improper ex parte communications or other unethical influence, it is really helpful when the judge recognizes and respects our local counsel. Educating lead counsel about the judge is another area that is really helpful. You are our eyes and ears on the ground in the local venue.

4. What do you know about opposing counsel? Ditto from above. Even if not friendly or social, do you have–or can you develop–the kind of rapport with opposing counsel that will easily facilitate extension requests or other courtesies? Does opposing counsel have a pattern? Are they lazy until the last 90 days before trial? Do they always fight hard and then settle? Are they competent in front of a jury? Do they know the judge well? Even if you don’t know the answers to these questions, you should have the resources (i.e., connections within the local bar) to ferret them out.

5. What makes your venue potentially unique? This goes back to not assuming anything. The procedural routines you’ve dealt with your entire career may be completely unique and unfamiliar to your lead counsel. Think of this on both micro and macro levels.

6. Exponentially increase lead time. I’ll confess this has been a personal challenge, but you absolutely must think far in advance and let your lead counsel know about upcoming events and deadlines.

A perfect example is California’s summary judgment procedure. I cannot speak to how summary judgment motions are scheduled in other jurisdictions, but the California Code of Civil Procedure requires dispositive motions be heard 30 days before trial. The Code also requires 75 days notice (assuming personal service) of the motion (with additional notice if served by mail, overnight, etc.). While this seems easy to calculate, the rub comes with the clogged dockets of our virtually bankrupt state court system, which can make it all but impossible to ultimately schedule a hearing date within the necessary window if a party does not begin the scheduling process very early. There is authority which suggests the court’s docket, etc. cannot deny a party the right to bring a dispositive motion, but the practical impact of delay will include expensive additional, sometimes nail-biting  procedures, like ex parte applications to have motions specially set the hearing and/or to reduce notice.

7. Communicate, communicate, communicate with lead counsel. And then make sure you communicate some more. Seriously.

8. Don’t friggin’ poach the client. The idea behind taking this work is not as an angle toward poaching the client away from lead counsel. If you see it otherwise, you’re not doing anyone, including yourself, any favors.

9. Do what you can to make lead counsel shine in the eyes of the client. When you’re hired by a general counsel, legal staff member or claims adjuster, it should be an important goal to make that person look good in the eyes of those to whom they answer, whether it is a board of directors, a more senior legal staff member or a claims superintendent. When you get a local counsel gig, make it a goal to make your lead counsel shine in the eyes of their client.

Because I am at the stage in my career where I am aggressively building my own practice, I take opportunities to act as local counsel for what they are–great opportunities to work for new clients and with different lawyers. There’s no reason you shouldn’t do the same.

One of my favorite books about negotiation is Getting To Yes by Roger Fisher and William Ury. As the book jacket suggests, it really is “for everyone who has ever worried about what to do in a disagreement or dispute.”

Since I suspect that the majority–if not the vast majority–of negotiations are between parties of unequal bargaining power, I thought it might be interesting to dip into the book and see what Fisher and Ury recommend one do when he/she/it is negotiating against a more powerful opponent. One of the tools the authors advocate in this situation is for a negotiating party to formulate a Best Alternative To A Negotiated Agreement (BATNA). Just by knowing their BATNA a party becomes empowered in any negotiation.

The easiest way to get a feel for what the authors are talking about is by using their example:

“Consider a wealthy tourist who wants to buy a small brass pot for a modest price from a vendor at the Bombay railroad station. The vendor may be poor, but he is likely to know the market. If he does not sell the pot to this tourist, he can sell it to another. From his experience he can estimate when and for how much he could sell it to someone else. The tourist may be wealthy and ‘powerful,’ but in this negotiation he will be weak indeed unless he knows approximately how much it would cost and how difficult it would be to find a comparable pot elsewhere. He is almost certain either to miss his chance to buy such a pot or to pay too high a price. The tourist’s wealth in no way strengthens his negotiating power. If apparent, it weakens his ability to buy the pot at a low price. In order to convert that wealth into negotiating power, the tourist would have to apply it to learn about the price at which he could buy an equally or more attractive brass pot somewhere else.” (Id. at 107.)

Since I’ve visited the Bombay railroad station–it’s actually called the Victoria Terminus–this was an easy bargaining situation to picture. The authors just left out the part about the cows wandering along the platform. In any event, as they point out, “the relative negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching agreement.” (Id. at 106.) If you can have a very attractive BATNA, your chips have greater value.

How do you strengthen your BATNA? The authors suggest this “requires three distinct operations: (1) inventing a list of actions you might conceivably take if no agreement is reached; (2) improving some of the more promising ideas and converting them into practical options; and (3) selecting, tentatively, the one option that seems best.” (Id. at 108.)

If we transition this discussion into a familiar setting, the pre-suit mediation of a hypothetical employment dispute, it may become easier to see how the whole BATNA thing might play an important role. Consider, for example, a single plaintiff who has a claim against her employer for gender discrimination. The parties engage in a mediation to see if the case can be resolved before she actually files a lawsuit. The individual employee might be anxious going into the mediation, since her employer is a large corporation with sophisticated lawyers at its disposal (at least they look sophisticated) and both she and her lawyer know it will cost a lot and be an uphill battle to pursue the case if the corporation is not inclined to settle. This sounds like an unequal bargaining position, doesn’t it? If they go in “cold” as it were, hinging their hopes on the corporation’s generosity, they’re likely to get steamrolled into agreeing to a settlement far below full value.

What can they do to enhance their BATNA and take away some of the corporate defendant’s power? Let’s apply the 3 step approach from Getting To Yes. First, the plaintiff and her lawyer “invent a list of actions” they might take if the dispute doesn’t resolve at mediation.  Here are some I invented for them:

• Go ahead and file a lawsuit and serve aggressive discovery. (True, it’s not very original.)
• Explore pursuing a class action instead of a single plaintiff case.
• Aggressively investigate whether there are quality witnesses who will support plaintiff’s case.
• Propose a second mediation session after the plaintiff has completed some (hopefully damaging) discovery.
• Associate additional reputable counsel to help level the playing field.
• Explore forum shopping options. Perhaps the corporation expects a lawsuit would be subject to mandatory arbitration, but the facts or current state of the law weakens the assumption that arbitration will be a suitable forum?

Step 2: “improving some of the more promising ideas and converting them into practical options.” I like the idea of a class action as a practical alternative option to a single plaintiff case. This is bound to put pressure on the corporation, as a class action carries both greater risk and greater expense. How to “improve” this idea? Do some investigation. Talk to plaintiff’s female colleagues. Even if their cases would not be particularly strong if pursued individually, they might have a chance in a class action situation.

Step 3: selecting which option seems best. Let’s assume there is some chance the plaintiff and her lawyer could organize and successfully pursue a class action (but would still prefer to settle her single plaintiff case at mediation), the question becomes whether to share your option with the opponent during the bargaining process. The authors say this:

“The desirability of disclosing your BATNA to the other side depends upon your assessment of the other side’s thinking. If your BATNA is extremely attractive–if you have another customer waiting in the next room–it is in your interest to let the other side know. . . However if your best alternative to a negotiated agreement is worse for you than they think, disclosing it will weaken rather than strengthen your hand.” (Id. at 109.)

Here you will need to make an honest assessment. Is the notion of converting the plaintiff’s case into a class action really just pie-in-the-sky? The corporation’s lawyers are naturally going to wonder, if the plaintiff reveals her class action alternative, why her lawyer isn’t pursuing that in the first place if there’s really a viable class. The corporation, knowing class certification can be a challenge which, if lost, tends to shake out meritless individual claims, might not be particularly cowed by the prospective of a weak class action.

On balance, I would probably not reveal this BATNA to the opposition, even if the plaintiff and her lawyer believe a class action is a viable alternative. What’s important is the actual balance of power, not just the corporation’s perception of the balance of power. Going into the mediation with the knowledge that she has a decent BATNA should give the plaintiff and her lawyer the resolve not to cave too easily.

Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ’em.

Well, you should.

I’m referring here to rhetorical device of organizing and presenting topics, words or phrases in groups of threes. Sadly, I neither discovered nor perfected the Rule of Three. But I intend to learn it, practice it and perfect it. (See, I did it right there.)

The Rule of Three enjoys a long history. Writing in the November, 2013 issue of Toastmaster, Washington, D.C.-based speaking consultant Denise Graveline reminds us that the Rule of Three “grew out of the ancient oral storytelling tradition. That tradition is the way we shared information before writing it. Over time, storytellers found that they and their listeners could most easily remember stories structured in three parts, which is why so many fairy tales have triads in them (think three little pigs or three blind mice).” (Id. at 16-17.)

Andrew Dlugan has written extensively on using the Rule of Three in his popular blog Six Minutes. He discusses and gives examples of two special “triad” variants: hendiatris and tricolon. “A hendiatris,” Dlugan writes, “is a figure of speech where three successive words are used to express a central idea.” Examples? Consider these:

• “Veni, vidi, vici.” – Julius Caesar (trans: “I came, I saw, I conquered.”
• “Liberté, Égalité, Fraternité.” – French motto
• “Wine, women, and song.” – Anonymous

“A tricolon,” Dlugan tells us, “is a series of three parallel elements (words or phrases). In a strict tricolor, the elements have the same length but this condition is often put aside.” In addition to Caesar’s “Veni, vidi, vici,” Dlugan quotes advice Franklin D. Roosevelt gave to speakers: “Be sincere, be brief, be seated.”

I’m not sure I ever gave the Rule of Three any serious thought before, though I recall my father, teaching me photography as a kid, talked about using patterns of three when composing a photograph. According to Dlugan, we can see examples of the Rule of Three at play throughout history: in religion (Father, Son, and the Holy Spirit), movies (Sex, Lies & Videotape, The Good The Bad And The Ugly), politics (Executive branch, Legislative branch and Judicial branch of government; Declaration of Independence: “Life, liberty, and the pursuit of happiness”); sales or advertising (in real estate: Location, Location, Location). Of course we learn about triads in music theory, as well.

Even though I never gave much conscious thought to the Rule of Three, I think that, like most rhetorical conventions, it penetrated into my thinking and composition through the magical osmosis of reading good writing. Dr. Seuss, for example.

Whatever the source, I unconsciously used the Rule of Three when I created my dreaded “elevator speech.” As much as I think the 30 second elevator speech has no place in a normal conversation between people who have an IQ over, say, 50, you would be surprised how effective it is to have a well-crafted self-advertisement handy when you are at a business or networking event and everyone in the room is asked to introduce themselves and describe what they do. I find myself in these situations about once a week. My elevator speech, I’m not at all embarrassed (well , actually . . . I am a little embarrassed) to recite:

I’m Alex Craigie. I’m a Partner in the Los Angeles office of Dykema. My practice currently focuses on helping Southern California employers [1] prevent, [2] manage and [3] resolve employment disputes as efficiently and cost-effectively as possible.

An example of a hendiatris at work. I might vary parts of this to suit the audience. For example, if I’m working a room that doesn’t have a clue who or what a “Dykema” is, I might throw in that it is a “premiere Mid-West full-service law firm. ” No matter what, though, I always include my core description which centers around three verbs which describe what I do: I prevent, I manage and I resolve.

So think about invoking the Rule of Three.

I have long found much to admire about Keith Lee’s writing in his well-regarded Associate’s Mind blog. His voice is intelligent, but accessible. His tone is informed, but not condescending. His consistent message about the state of our profession is tough, but not without optimism.

I was pleased to find all of these qualities and more in his recently published first book, The Marble And The Sculptor.

What I particularly appreciate about Lee’s thoughts, as expressed in his words, is how they are often infused with precious pearls of Eastern wisdom. It is refreshing, at a time when the business of law threatens to eclipse what was once regarded as a noble profession, to encounter a fellow lawyer who strives to penetrate deeper into what it means to undertake a legal education, to prepare for and pass the bar examination and, finally, to carve out one’s own place within our profession. The decision to commit to this profession is a serious one, and Lee invariably addresses these issues with unflinching candor.

As an undergraduate student of Western philosophy, I occasionally flirted in a superficial way with Eastern thinking on issues of metaphysics, epistemology and religion. But I never let my guard down or did the work necessary to really grasp the Eastern mind. Again, when my wife and I traveled throughout Asia during our sabbatical, I was confronted and tried to learn about the Eastern religions, the teachings of the Buddha, the Hindu belief system and others, including radical Jainism. But regardless of my immersion, those teachings remained essentially foreign to my Western-bred mind.

Lee forces me to revisit the Eastern mind, but to apply that way of thinking to my own chosen profession as a lawyer attempting to practice here, in America. As the rapidly growing blawgosphere demonstrates, pretty much anybody can write about law. The difference in reading Lee is not only that he has something to say, but what he says carries a much larger, often universal import. His how-to manual for newly-minted lawyers would not require much revision to serve as a how-to manual for success in any career, or even in life. I believe it is his Eastern mindset that gives Lee’s words their added wisdom, their depth.

Much of Lee’s advice for succeeding both as a law student and a lawyer comes down to one quality: discipline. It’s not an accident that Lee came to law school, as he puts it, “a bit later in life” at twenty-seven. After college, he spent a year as a runner/project assistant/gopher at a large law firm. Yet, even after this experience cemented his certainty that he wanted to be a lawyer, he did not enter law school right away, but instead moved to Canada to train as an ichi deshi to a shihan (master) for nearly a year. He briefly describes this experience as

” . . . crazy and awesome and painful and beautiful — one of the best and most difficult experiences in my life. It’s the sort of thing that’s hard to encapsulate in words. Sleeping in a storage closet under the stairs in the basement of the dojo on a thin mat. Subsisting primarily on rice, vegetables and PB&Js (okay, and beer on occasion). Training five to eight hours a day, five to six days a week. Bleeding toes and cracked ribs. Scrubbing toilets and washing mats. Friendships gained and lost. Intense spiritual moments of training and camaraderie, intense times of loneliness and introspection. No TV, no movies, no cellphone.” (Id. at 97-98.)

Not exactly Club Med. But perfect training for the mental discipline needed to become a successful professional. Describing the training during this period, Lee writes:

“After the lecture there would be an hour or so breakdown on one technique, perhaps one movement. A pivot or a shift of hips or moving into position against your partner. A single movement could be repeated hundreds of times. Occasionally I would be told the movement was correct. Mostly I would be told that the movement was wrong.

It was aggravating. It was boring. It was difficult. Deliberate, long, tiresome, and trying. After the tenth repetition of a movement I would grow bored. At the thirtieth, my mind started to wander. At the sixtieth I was barely concentrating. At the hundredth, my mind had become still and there was only the movement.” (Id. at 98.)

This focus on discipline as the key to growth as a lawyer is echoed throughout The Marble And The Sculptor. From one’s selection of law school electives, to developing key relationships, to balancing the competing demands of family and law school and, later, law practice, he returns again and again to the notion of discipline. Lee writes:

“Every lawyer, every person you meet, was once young, naive, and ignorant as you are. It is now your personal responsibility–no one else’s–to mature and develop into a competent lawyer who is fit to be trustworthy of a client’s problems.” (Id. at 21.)

Another vein that travels throughout the book is the notion of humility, which I believe also finds its genesis in his Eastern studies. There is a tendency, after you’ve devoted years of your life and a small fortune to finish law school, excelled on law review or moot court or whatever, to take yourself pretty seriously as a brand new lawyer. Lee gently reminds readers that, as new lawyers, you don’t know shit.

But his purpose isn’t to cut baby lawyers down. Rather, Lee is interested in teaching the kind of humility that is found in Eastern thought and easily seen in the martial arts, in the interest of helping you on your path to becoming a professional. He writes:

“After obtaining my black belt, did I consider myself a master? When I received my JD and passed the Bar, did I consider myself an expert lawyer? Of course not. They’re ridiculous propositions.

Traditionally, a black belt has only meant one thing: you were now considered a serious student. Everything before was playtime. Training wheels. Getting a black belt only signifies that you have mastered the basics and are ready to begin dedicated study. The same is true with a JD. Having a JD doesn’t indicate mastery of the law. It’s merely a signifier that you are probably ready to step onto the playing field. What follows is up to you.” (Id. at 102-03 (emphasis in original).)

Readers of Lee’s blog, as well as his new book, quickly learn that his choice of title for the blog, Associate’s Mind, was no accident, but reflects this essentially Eastern attitude of humility toward our profession. He writes:

“So, during my final year of law school, I started a legal blog titled Associate’s Mind, a play on words of a concept in Zen known as shoshin, or ‘beginner’s mind.’ A ‘beginner’s mind’ refers to having an attitude of openness, eagerness, and lack of preconceptions when studying a subject, even when studying at an advanced level, just as a beginner in that subject would.

I wanted to adopt this mindset in my practice of law. The idea that an associate should be flexible and open to new ideas and processes, while being mindful of the guidance of those who have tread the road before them. ” (Id. at xii.)

I encourage you to read Lee’s new book, and to subscribe and follow Associate’s Mind. You will find there pearls of the kind of wisdom our profession desperately needs at this difficult time.