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Let me start by saying that I know that not everyone who graduates from law school aspires to be a partner in a big law firm. Or a small law firm. Or any law firm. I’m not suggesting it should be everyone’s or anyone’s goal. Many who make it a goal, and achieve it, come to believe it is overrated. I strongly feel from what I hear and read that partnership has become far less important to many than it was when I graduated (1993), and I doubt it was as important to lawyers of my generation compared with earlier generations. I recognize, then, that this post may not be equally interesting to everyone.

Now that I’ve cleared my throat and caused most readers to change the channel, what I want to say is that, if you do aspire to partnership there are far worse words to live by than J. Daniel Hull’s self-described “World Famous Bad-Ass, Annoying and Infuriatingly Correct 12 Rules of Customer Service.”

I can guess what you’re thinking. Hull’s damn Rules are meant to inform the ways attorneys provide service to their clients, not how associates should treat partners. If we adhere strictly to labels, that is true. But I want to argue that being a junior lawyer who works for, takes direction (and compensation) from and attempts to please senior lawyers is very similar to the experience of any lawyer who works for, takes direction (and compensation) from and attempts to please their customers, i.e., clients. Even if one never aspires to be a partner, then, being a good associate can still be terrific training for how to be a good customer service-oriented lawyer. And, Hull’s rules are a damn good start.

Let’s look at them.

1.Represent only clients you like.

I previously said in another post that, at first blush, this rule seems to suggest we all have the luxury to cherry pick clients. Clearly, most of us don’t have this luxury. Similarly, associates rarely have complete control over who assigns them work. On the other hand, just as lawyers can work over the long-term to shape their practices away from clients they don’t like, talented associates can try to shape their position within a firm. While it might never be possible to completely avoid working for a complete asshole, it should be possible to position yourself to work more often with senior lawyers you respect and like. If there’s more than one complete asshole, then you probably don’t want to be a partner at that firm.

2.The client is the main event.

If you get to work and interact directly with a client, that client is the main event. If not, then the partner who assigned you the work is the main event. If you wouldn’t think of filing or giving a client a document that contains typos or is otherwise sloppy (you wouldn’t, would you?), don’t think you’re going to gain traction with any partner who receives a crappy, typo-ridden document. “Gaining traction” is fancy law firm speak for “having a future.” If nothing else, have your assistant proof read everything before you give it to anybody.

3.Make sure everyone in your firm knows the client is the main event.

4.Deliver legal work that changes the way clients think about lawyers.

Here I suggest you to strive to deliver work that changes the way many partners think about many associates. I witnessed first hand during my career the erosion of how many partners regard associates. I trace it to the point in time when a handful of very lucrative Silicon Valley law firms decided to give the historically high paying New York law firms a run for their money in terms of associate compensation. This seemed to coincide roughly with the point at which late Gen X and early Gen Y law students started graduating. The buzzwords I heard a lot around that time (and I wasn’t yet a partner) was some variation of “undeserved sense of entitlement.”

The good news for associates is that many partners are now so underwhelmed with the commitment of more recent law school graduates that it’s actually not that hard to stand out. In my crude, empirically unsound and untested estimation, a Gen Y associate who puts in the same effort as earlier generations of associates could be a rock star at some law firms. On the other hand, I recognize that many Gen Y lawyers have a different sense of priorities than earlier generations, which I suspect is why partnership is not the brass ring it once was.

5.Over-communicate:  bombard, copy and confirm.

Like most clients, most partners like to be kept informed. If you find yourself working with someone who has limited tolerance for minutiae (and they’re out there) be sensitive to that and adjust accordingly.

6.When you work, you are marketing.

This is true whenever you do anything professionally, whether it’s for a client or a partner.

7.Know the client.

Know the partner. Take an interest in her practice and her clients. Think: how can I make her job/life/career easier. Take ownership of cases, deals or assignments and try to think how you can contribute more to the big picture. Don’t be afraid to make suggestions, but be careful not to do things unilaterally that might run contrary to the lead lawyer’s strategy. When in doubt, ask.

8.Think like the client–help control costs.

Think like the partner who is attempting to think like the client. Part of this is understanding and appreciating where you fit in. Ideally, you bring value to the client since it theoretically costs less for you to spend your time doing a task. This should also have a three-fold benefit to the partner and the law firm. On the one hand, it should free up the partner to spend less time doing more routine tasks and more time thinking strategically and doing more sophisticated tasks requiring experience, training and judgment for which clients are willing to pay higher fees. It should also free up the partner to spend more time marketing and bringing in new business which helps the firm grow. Finally, if leveraged properly, associates are profitable. While partners should not shrink from the responsibility of training, and cutting associate time from the bill is often appropriate, the more the above runs like a well-oiled machine the better for everyone involved.

9.Be there for clients–24/7.

I was going to say, “That’s why the firm bought you that iPhone 5,” but that’s not really what I mean. Perhaps it’s better to say that many clients expect their most trusted advisors to be there when they’re needed, without regard to day of the week or hour of the day. Associates that make it clear they will do what they can to recognize and meet this expectation will tend to be viewed as more valuable than associates who do not. I will admit that, as an associate, I jealously guarded my time away from work. As I started developing my own clients, however, I came to realize that, in doing this, I was just putting off the inevitable, since clients really do expect their trusted advisors to be available 24/7. It’s just part of the job which, as we know, is not for everybody.

10.Be accurate, thorough and timely–but not perfect.

It’s okay to make mistakes. But own mistakes when you make them. Resist the temptation to conceal mistakes or shift blame to others. Clients see right through this and so do partners.

11.Treat each co-worker like he or she is your best client.

Being graded on citizenship doesn’t stop when you leave grade school. Whether it’s made explicit or not, one thing partners consider when making advancement decisions is how well you fit in. Whether the office has 3 or 130 people, the ability to work well with others is important. If you’re rude to other lawyers, disrespectful or downright mean to staff, it can hinder your advancement. Many firms, including my own, pride themselves on having “very few sharp elbows.” Regardless how talented you may be, if you have “sharp elbows,” or an outsized sense of your own importance, or you’re just a jerk, it can make it hard for you to gain traction.

12.Have fun.

If you’re not having fun as an associate, it’s unlikely the practice of law is going to become fun if/when you become a partner, and your responsibilities extend far beyond doing great work and billing lots of hours, to include marketing and management responsibilities. If you’re not having any fun, maybe it’s time to think about doing something else.

So, if partnership is what you’re after, try applying Dan Hull’s “annoying and infuriatingly correct” Rules  to the service you provide.

I’ve previously written about how young lawyers enjoy an undeserved reputation for honesty. It’s a gift. Don’t squander it.

Similarly, when jurors encounter a trial lawyer for the first time, the lawyer’s mere presence in the courtroom says many things before the lawyer opens her mouth. This observation comes from the trusted Professor McElhaney. In a chapter from Litigation (ABA 1995) entitled “The Most Important Witness,” he suggests that a trial lawyer’s presence in the courtroom implicitly says to the jury:

• “I have studied the facts and understand what this dispute is all about. You can trust me to steer you straight.
• I have carefully screened the witnesses. I will only call those who will tell you the truth.
• I know the law that governs this case. Justice is on our side.
• If I introduce evidence, it is because it is important.
• If I leave something out, it is because it is not important.
• And If I attack a witness, it is because he is not telling the truth.” (Id. at 9.)

Of course, just as with a young lawyer’s unearned reputation for honesty, each of the above assumptions can be quickly proven wrong. Witness choice is a perfect example. While you sometimes have no choice but to present a dodgy witness, this should not be undertaken lightly. As Professor McElhaney points out:

“[T]he very act of putting the witness on the stand implies that you are vouching for his credibility. . . . Whom do the jurors blame for a bad witness? Listen closely to the comments clerks and bailiffs hear every day. ‘I wonder where she got that guy?’ ‘Where did he dig him up?’ ‘Can’t he find someone better than that?'” (Id. at 11.)

Another opportunity to prove the jury wrong in their initial positive impression arises from how you organize your evidence presentation, including direct examination of your witnesses. How you conduct the examination, what you leave in and what you leave out can affirm or undermine the assumption that “If I introduce evidence, it is because it is important.” As McElhaney says it:

“A confused, rambling examination suggests a disorganized understanding of the facts. Not only does it fail to tell the story effectively, a poor direct examination is the living picture of a guide who cannot be trusted to lead a jury through the thicket of facts in the case.

Dwelling at length on small points is a little different. At first it suggests that the seemingly insignificant detail will become important later on.

Why? Just putting it in the case says it is worth the jury’s while.

So the first time the fact that took so long to explain turns out to be meaningless, the jury feels cheated. When it happens again, they wonder whether the lawyer is trying to kick sand in their faces or is just inept.” (Id.)

The jurors are your friends, your students and your wards. Don’t kick sand in their faces.

I found a fantastic interview of trial legend Edward Bennett Williams from the Winter, 1986 issue of Litigation which I intend to read and re-read like the Bible.

Among the myriad of topics he discusses was the kind of “team” he works with at trial, which led to a discussion of trying “big document” cases. Many lawyers, even seasoned trial lawyers, tend to make the assumption that the bigger the issues to be decided by the jury, the more witnesses and paper–documents–are needed to prove a party’s case or defense. If an outsider was to simply look at the kind of discovery conducted in any big case, he or she would easily assume that, if the documents were worth seeking in costly discovery, they must have been germane and, ultimately, indispensable to winning.

Williams takes issue with this kind of thinking. He suggests that, in all but the most complex cases, lawyers tend to “multiply documents” unnecessarily. In the end, being unnecessarily document intensive does not further their clients’ interests or bring them closer to victory. Responding to interviewer Priscilla Anne Schwab, Williams says:

“Mr. Williams: I was brought up in a school of practice in which one person tried a case and tried it in toto. Even with some help, in the courtroom there was only one voice. And I like that.

Ms. Schwab: What about a complex case, say, an antitrust action with thousands of pages of documents, hundreds of witnesses. How can you handle that in a courtroom singlehandedly? With total control?

Mr. Williams: My impression of that so-called ‘big document’ case is that 95 percent of the documents are worthless. Just piles of paper to impress the jury. One of the great tragedies of litigation today is these paper wars. The whole profession gains nothing but disrepute when one of these big firms puts 21 lawyers on a case, and they start multiplying documents, paper times paper.

Now obviously in a few cases, the issues are so complex that there are, maybe, thousands of documents. But my experience has been that law firms multiply paper unnecessarily. They make litigation more prolific than necessary. They don’t have an instinct for the jugular. They don’t isolate the major issues of the case and simplify them into comprehensibility. And they engage in massive overkill in discovery.

Ms. Schwab: But there always seems to be a need for more discovery. You say yourself you must uncover every fact, however remotely relevant.

Mr. Williams: True, but discovery today is not used primarily to uncover facts. It’s used to delay, to obfuscate, and, too often, to replace real investigation.” Litigation, Vol. 12, No. 2, Winter 1986, p.30.

As an armchair expert on the topic of laziness, I wonder if the tendency to use excessive discovery rather than going “for the jugular,” as Williams puts it, stems from the fact that isolating “the major issues of the case and simplify[ing] them into comprehensibility” takes really hard work and focused thought. I suspect this is part of it. I suspect the other part is related to the fact that there is big money in putting armies of lawyers on cases and multiplying paper. Cynical me!

Whatever the cause, the end result brings clients no closer to victory. So, even if you feel the need to burn everything to the ground in discovery, remember when it comes time to try the case to isolate the major issues and “simplify them into comprehensibility.”

Most writers who take their prose seriously have a few favorite rhetorical devices. When these are used well, they contribute to what is loosely referred to as style. When used poorly, they . . . well, I try not to think about that.

If you’ve read much of my blog, you probably recognize that I tend to heavily favor two such devices, alliteration and repetition. (It’s actually only one device, since alliteration is a form of repetition.)

Blatant, obvious, excessive repetition–at least in written form (rather than a speech)–is really only appropriate for a children’s book. Since I’ve been reading lots of children’s books over the past few years (two per night is the current average, though my daughter only let’s me choose one of the titles), I’ve come to really appreciate a writer who is not only a master of the children’s story, but a brilliant practitioner of repetition: Dr. Seuss (aka Theodor Seuss Geisel).

One of my favorite examples of Seussian repetition, probably among his most subtle examples, appears in And to Think That I Saw it on Mulberry Street. The good doctor there writes:

“Unless there’s something I can fix up,
There’ll be an awful traffic mix-up!

It takes Police to do the trick,
To guide them through where traffic’s thick–
It takes Police to do the trick.”

Another fine example shows up in that perennial favorite graduation gift, Oh the Places You’ll Go!:

“But on you will go
though the weather be foul,
On you will go
though your enemies prowl.
On you will go
though the Hakken-Kraks howl.
Onward up many
a frightening creek,
though your arms may get sore
and your sneakers may leak.”

Perhaps the most famous, obsessive, blatant and brilliant example of Seussian repetition is found in Green Eggs And Ham:

“I do not like them in a box.
I do not like them with a fox.
I will not eat them in a house.
I do not like them with a mouse.
I do not like them here or there.
I do not like them ANYWHERE!”

Lest you think this is all child’s play, repetition was a device of choice for a man who was unquestionably among the most compelling American rhetoricians of the last (or any) century, Dr. Martin Luther King. Even if many of us cannot recite from memory all of the details of Dr. King’s “dream,” his use of repetition has helped that speech and his message remain central in the (post) modern American consciousness. He said:

“And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”

I have a couple of further thoughts. As I said, repetition in texts intended to be read, not heard, must be handled with kid gloves. If  you incorporate Seussian repetition into a brief (or a blog post meant for adults), readers will think: (1) you’re an idiot, (2) you’re making fun of them, or (3) both. Because I value the opinions of both judges and blog readers, I take great care to be judicious with my repetition. Like any rhetorical device, its potency recedes with overuse.

Even in a speech, there is a real danger, if you get too cute with repetition, that your audience will think: (1) you’re an idiot, or (2) you’re an idiot who thinks he’s MLK.

Judiciously used, however, repetition in a writing or a speech can add impact, reinforce your message and make it memorable.

The Wall Street Journal recently mentioned a UC Irvine doctoral student who “worries,” in a forthcoming academic paper, that realistic police procedural dramas (i.e., cop shows) significantly impact potential jurors.

Specifically, he’s “concerned the show’s influence may be leaving jurors with a distorted view of how investigations are conducted and the judicial system works. The world of Law & Order,† he says, is one in which prosecutors and police give off a soft glow of righteousness, while public defenders and defense lawyers toil under a harsh light.”

The WSJ quoted from a draft of the paper:

“The police and prosecutors in this view are portrayed as the “good guys” keeping the people safe from a dangerous world of criminals, and their tactics, regardless of how draconian and unconstitutional they may be, are necessary to get the job done effectively and expeditiously. On the other hand defense lawyers, the occasional by-the-book ADA, and even the Constitution are portrayed as impediments to justice. They obfuscate and distract from the correct outcome – a guilty verdict. The show suggests that if a suspect isn’t guilty, he or she isn’t brought to trial. The cops end up with the right person.”

This struck me as quite a mouthful, particularly when I read that the author “concedes that he doesn’t have empirical evidence to support his suspicion.” Aren’t academic papers supposed to rely on empirical evidence? (Unless they appear in the Journal of Speculative Philosophy?) I’m sure the paper, when it appears in an upcoming issue of the Law and Psychology Review (where it is indeed destined), will someday be cited as authority why medical malpractice plaintiffs should routinely challenge potential jurors who grew up watching Marcus Welby.

Snarky jokes aside, and recognizing that neither the doctoral student nor I are truly “experts” on this, I solicited input from jury consultant and Juryology blogger Rich Matthews. It turns out Rich had seen the paper and didn’t think too much of it, either. He described the author’s concern as both “much ado about nothing new” and the exact opposite of how it really works. He said, “It has always been the case that people have a psychological need to believe that police and prosecutors conduct their work competently and honestly. Thus TV didn’t create that mindset but rather plays to it in the form of police and law enforcement shows since the dawn of television.”

Makes sense. But even if the TV -show-shaping-our-views hypothesis is sketchy, that doesn’t mean it wouldn’t be useful to know what kind of TV prospective jurors watch or don’t watch. I’m not suggesting this always makes good voir dire, but, as Rich points out, jury experts are interested in “what pre-sets citizens have when they come into court, and how they play into one’s specific case.” If the TV shows we watch reflect our need to believe our “doctors are caring and unfailingly accurate,” couldn’t that indeed be useful in a malpractice or medical device case? If we watch a police procedural because we have a “need to believe” our police officers, would knowing your jurors are rabid Law & Order fans be interesting in a case where the outcome may hinge on an officer’s testimony and believability?

Or not. Feeling in my bones that cold dread of Kierkegaardian ambivalence, I consulted Professor McElhaney’s views on voir dire. In a chapter called “Picking a Jury” in his Trial Notebook (Third ed. 1994), he doesn’t address whether a prospective juror’s TV proclivities are necessarily useful, but he does reaffirm that, among the uses of voir dire, you want to “figure out whom you are talking to.” (Id. at p. 123.) After all, he says:

“You would never dream of giving a Law Day speech without knowing whether the audience was a political reform organization, a group of retired workers, or a class of high school students. One of the most important things you can do in jury selection is to study the jury. Find out what the jurors like and don’t like.” (Id.)

The upshot, I guess, is that, if you’re interested at all in what jurors watch, it’s not because you’re worried their views have been shaped by those shows, but because what they watch may reflect how deeply they hold certain beliefs in the first place. I continue to have my doubts.

†Brief aside: Wasn’t Law & Order just more classic back when there was just one show and Chris Noth and Paul Sorvino were in the cast?

I was really pleased to come across this article in the ABA Journal about Drexel University Professor Karl Okamoto, who has created a moot court-type experience dedicated to helping students hone skills needed to practice transactional law. I know the focus of this blog is generally on litigation and trial skills, but I applaud Professor Okamoto for coming up with something new and inspiring to fill the huge void for students who don’t want to litigate, or maybe just want to get a taste for what deal lawyers do. I hope similar programs become more widely available.

I probably speak for a lot of litigators who feel that they did not so much choose to go the litigation route as settle for what was available. Certainly, when I dreamt of becoming a lawyer I pictured myself in a courtroom. And I spend a fair amount of time there. But I spend an equal or greater amount of time either chained to a computer drafting motions and discovery responses or taking depositions. If I had learned something about doing deals early on, who knows . . .

Almost every transaction lawyer I know enjoys his or her practice more than the average litigator I know. The only exception to this comes from the fact that transactional law, M & A, real estate deals, private placement, public offerings and the like, seems to be a cyclical practice. At least in the past two decades, it’s been feast or famine for a lot of the deal lawyers I know, particularly at BigLaw firms. That’s not to say that litigation isn’t cyclical. In fact, I’m told we’re in a down cycle in many litigation practice areas right now.

The number of students who spend their second year summer in a BigLaw summer associate program has been shrinking. I know that neither BigLaw nor these programs are everybody’s cup of tea. On the other hand, up until now such programs have been the only opportunity most law students (and many lawyers) ever get to experience how transactional law is practiced.

Here’s how Professor Okamoto’s moot transaction program, LawMeets, works:

“[S]tudents get fact patters for a deal and play the roles of buyer, seller and client. Over a period of months, they have conferences; draft, exchange and mark up documents; and then negotiate the deal. Prominent transactional lawyers judge their documents and negotiations, as well as offer feedback. Then the students get to watch the pros haggle over the same terms. ‘That’s when we think the “ahas” begin,’ Okamoto says.”

One added benefit I can immediately see to this program is how it forces students to complete a project over several months, which is much more similar to an actual law practice, where it is necessary to sustain focus on a deal (or a case, or several cases) over a longer period of time, often punctuated by short periods of frenzied activity.

The other interesting approach is asking the judges to demonstrate how they would handle the same situation. This could influence the way trial advocacy and moot court competitions are taught, though it might make it more difficult to find judges who’ll volunteer, not only to judge the competition, but also demonstrate their skills.

Kudos to Professor Okamoto!

Living through trial. The only thing most of us think about is winning. (Unless, like me, you get that 11 pm craving for carne asada burritos con guacamole, then you think about that, too.) After the verdict, win or lose, the last thing everybody wants is to go back through it and take stock of what happened, what went well or went poor and how we can do better next time.

But there is real wisdom, once the dust truly settles, in going back over everything to ponder, “What did we learn from this?” For institutional clients of every size, trials are a huge investment of time, money and resources. It makes a lot of sense for them, ideally in conjunction with their counsel, to do a trial postmortem. This not only helps prevent future “situations” requiring litigation but, if cases do arise in the future, it enhances the chances of success. Astute lawyers recognize the value and opportunities of this process and collaborate with their clients to do a comprehensive postmortem, possibly for free! Even if the client shows no interest, much can still be gained if only the members of the trial team come together for a postmortem session.

A generous article on this topic, “Trial ‘After Action Reviews,'” appeared in the August, 2013 issue of For the Defense. The authors, Milwaukee lawyers Ric Gass and Michael B. Brennan, point out that “Army generals as far back as Caesar in his ‘Commentaries on the Gallic War’ have learned strategic and tactical lessons through after action reports.” (Id. at 29) The article is sweeping in its scope. Among the valuable points made by the authors was the following:

“Crucial to the success of an after action review is, to use the military jargon, ‘leaving your rank at the door.’ If you are the lead counsel, you need to be willing to listen and to learn from the observations of others on your team. You were probably too busy while doing that crucial cross-examination to take in everything else in the courtroom, such as reactions of jurors, or of the judge or opposing counsel. But your co-counsel, your paralegal, or your jury consultant did watch for those reactions, and you need to hear what they saw.” (Id.)

The authors suggest some topics for review during the postmortem, including:

• Jury Research: “Did the jury research accurately predict the attitudes and reactions of the jurors and the ultimate result on liability and damages?” (Id.)
• Opening: “What worked well for us? What worked well for opposing counsel?” (Id.)
• Direct Examinations: “Did a certain witness’s testimony connect with the jury, and if so, why?” (Id.)
• Cross-Examinations: “Was the tone of the questions too harsh or too lenient? . . . How many of the admissions made on cross-examination made it into the closing argument?” (Id. at 30.)
• Expert Witnesses: “Would we use this expert again, and more importantly, why?” (Id.)
• Closings: “What worked well for each party, and why?” (Id.)

Finally, the authors point out that:

“Being a trial lawyer is a lifelong learning experience. . . . If you have had any kind of trial, but especially a major trial, you need to appreciate it for all the experience it brings and to wring every last piece of learning that you can from the experience. . . . [Y]ou need to figure out how to carry that understanding and the techniques that went right to your next trial.” (Id.)

I know first-hand how much clients appreciate it if, after the trial, you offer to travel to their offices and help your in-house counterpart prepare and present a postmortem, with the specific goal of avoiding similar situations in the future. They really, really appreciate it when you don’t charge them for the experience. If your trial counsel won’t do this for you, ask them why not. Then remember to call me.

I’ve written before about the wisdom, in the context of a jury trial, of obtaining pretrial orders by the judge excluding or significantly limiting certain items of evidence you anticipate will be offered by your opponent. The typical vehicle for obtaining this relief in American courts is by filing a motion in limine. This term is derived from Latin, and means “at the threshold.”

Why do courts entertain such motions? If one party attempts to introduce objectionable evidence, whether by an examination question or offering an exhibit, in front of the jury, it may be impossible to “unring the bell,” or make the event 100% harmless, for two reasons.

First, if the question or exhibit is damaging enough that the jury gets the gist of its import before the judge  sustains your objection, the practical effect is little different than if the evidence had come in without objection. (Worse, in some ways, if you recognize that the objection itself may “wake up” jurors and alert them that what they’re about to hear–or not hear–is important.)

The second, more subtle reason, which I’ve previously described, is the assumption on the part of jurors whenever they hear you object, particularly if it is sustained, that you are trying to hide something from them–probably the truth. As I’ve said, this can garner juror resentment.

Motions in limine are great fun to write if you are an associate. I say this only partly in jest because they actually can be both interesting and game-changing, if done well. Plus they help young lawyers learn to use and argue the rules of evidence in a way you never learn them in law school or when studying for the bar.

Now, if we take this kind of pretrial strategic thinking to a higher level, there are even more subtle considerations to consider and decisions to decide. One involves comparing a motion in limine with a different kind of document called a trial brief. A trial brief is often a concise memorandum of points and authorities that delineate an important narrow issue and identify and apply authorities to persuade (under the guise of education) the court to adopt your favored position. It is also common for parties to file a single trial brief, which provides the court with a roadmap of all of the issues, the expected evidence, and how they should be decided. I’m referring in this post to the kind of brief that addresses only a discrete issue or cluster of issues.

In general, motions in limine focus on evidentiary issues and trial briefs on issues of law, such as how the jury should ultimately be instructed. But the difference isn’t always clear. For example, if you expect a massive argument over a specific jury instruction, it might be appropriate to separately file a trial brief to persuade the judge that only your instruction is appropriate. But this debate can also give rise to evidentiary issues. If certain areas of inquiry would be irrelevant or inappropriate if the judge ultimately sides with the position in your trial brief, it may be wise to also file a motion in limine to urge the court to limit potential unwanted or damaging evidence.

Finally, the timing of trial briefs is another consideration. They can be filed before trial, along with any motions in limine, or you can prepare and hold–do not file–a “pocket” brief  until the issue is “ripe” for adjudication. When, in the context of an argument, the judge asks, “Counsel, do you have any authority on that?” “As a matter of fact,” you say, “we do!”

Three additional points about motions in limine. First, lawyers have greatly overused them; some judges consider such motions to be an irritant. Be wary of this and save them for issues that really merit advance consideration by the judge. Then brief these issues well–don’t just assume because you raise an issue and cite an evidence code section that you’ll prevail. It’s vastly better to select a very few key evidence issues and brief each thoroughly, than to file a motion on every anticipated shard of evidence. If the issue doesn’t merit serious briefing, it probably doesn’t merit a motion.

Second, it is an absolute waste of everybody’s time to file “obvious” motions, which simply repeat well-established evidence rules. For example, most trial judges and lawyers know about the prohibition of evidence of insurance coverage. Why waste paper and time making a motion on such an obvious point.

Third, most jurisdictions require parties to “meet and confer” before filing motions in limine to see if the issue can be resolved among the lawyers. Even if you are in a jurisdiction that does not have such a rule, there is no reason not to meet and confer and try to resolve the issue before you spend your client’s money needlessly.

Both motions in limine and trial briefs can significantly impact the outcome of a trial. By resolving evidentiary issues that the jury never needs to know about, or educating the judge about how she should rule on important legal issues, these documents can effectively shape how a case is tried. Don’t be afraid to use these tools, but use them wisely and strategically.

The Wall Street Journal ran an article yesterday discussing the ongoing debate whether the traditional course of study for a law degree, which is a prerequisite in most states for admission to practice, should be reduced from three years to just two. Even President Obama, who is both the product of a traditional three-year Juris Doctor program and a former legal educator, weighed in somewhat in favor of a change. The biggest factor spurring this debate seems to be the skyrocketing costs of law school.

I approach this question with the following background. I graduated from a high second-tier law school in 1993. I paid my own way through law school, amassing about $80,000 in loans. I had accepted an offer at an insurance defense firm where I had been clerking for 2 years; my starting salary was $52,000. It took me about 11 (painful) years to pay off my student loans. I give this background to make clear that I don’t come at this issue from the perspective of the academic elite, nor did I finish school without a job.

My experience working for various small firms, mid-sized litigation firms, and now at an AmLaw 150 firm tells me that reducing the amount of training, whether it is Socratic classroom lectures or on-the-job clinical training, will not serve anyone’s interests. Beyond reducing the cost/debt of law school, it will not benefit newly-minted lawyers, who would spring from the costly but generally encouraging womb of  law school with even less to offer than at present. It will not benefit most law firms that (unlike my own) do not or cannot afford to invest in providing their lawyers with systematic, ongoing training on how to write, argue, advocate at trial or negotiate. Most importantly, it will not benefit clients who find themselves saddled with a new lawyer that was not sufficiently trained before being ejected from the nest.

The rising cost of law school, and resulting debt for students who may or may not be able to secure a job that exploits their training and compensates them accordingly is a real problem. It’s a terrible problem. But I do not believe that the solution lies in grinding future lawyers harder during their first two years, then turning them loose to commit malpractice at the expense of unsuspecting clients any sooner.

I have written here and here that law schools should increase the amount of real-world experience students receive before they graduate. If this can be done in a way that reduces the expense of the third year of school, then it would be a win-win. Even after I secured my first paying job as a law clerk, I still did some pro bono work in a law clerk capacity, both because it made me feel good and I gained experience I could include on my resume. Providing there is adequate supervision, many third year students could earn credits performing similar activities, which should both reduce their education tab and boost access to justice for the underserved.

BigLaw firms like my own have increasingly become involved in pro bono initiatives in which they “partner” with client legal staffs to tackle larger pro bono opportunities. This is clearly a win-win for the law firm, which gets to show off its lawyers’ skills, and for the beneficiaries of the pro bono projects, who enjoy enthusiastic, top drawer legal talent. Perhaps such “partnering” could be expanded to include third year law students, creating a win-win-win, as students get to interface with law firm leaders while showing off their enthusiasm and talent. Just a thought.

I applaud educators and others in the profession for trying to improve the situation for folks who want to practice law, a goal which should be pursued with boundless verve. On the other hand, snipping off that third year with no better substitute would be a regrettable choice.

Anyone who has taken or even attended a deposition is at least somewhat familiar with the litany of admonitions that are customary before the substantive examination begins. These include explaining to the deponent, and generally asking her to confirm her understanding, how a deposition works, i.e., don’t answer unless you understand the question, use words not gestures when responding, etc.

I attended a deposition last week of two of my client’s experts for an upcoming trial. The questioning attorney, obviously reading from an outline or script that he either drafted or was provided to him, attempted to get both experts to buy into the following:

“Q. If  you answer a question without telling me you didn’t understand it, I’m going to take the position — if you try to later say you didn’t understand the question — that you did and you were trying to get out from under the answer.  Do you understand that?”

In each instance, although I objected, my deponent ultimately agreed with the statement. I expect if my opponent attempts to use the testimony at trial the judge will probably sustain my objections. But he might not. Which leads me to think I should have better prepared both deponents (both of whom, by the way, are seasoned expert witnesses, very familiar with the deposition process). I will certainly prepare future witnesses for this kind of question, particularly by this particular attorney (whom I do generally respect for his frequent creative, outside-the-box thinking and approach to his cases).

What’s the problem?

The question asks the witness, in a complete vacuum, to buy into a set of circumstances and motivations that have no basis. Folks who have spent time in the world of depositions know that this isn’t a perfect science. Questions are only rarely (if ever) perfect. However, even seasoned experts get swept into the unconscious desire to “help out” the examiner, sometimes answering questions that weren’t asked, were very poorly asked, or supplying missing terms that help a problem question make sense. It’s not fair to ask that witness, who later explains a “bad” answer by suggesting she did not fully understand the question when it was originally answered, to agree in advance that any such effort is really “trying to get out from under the answer.” No.

Hearing a witness try to “back pedal” out of a bad deposition response by suggesting she didn’t understand the question when it was first asked is generally going to be viewed with suspicion by the jury. This is particularly true if it happens more than once. So, it is not a huge issue how the deponent answers the question above. However, the admonitions generally occur at the start of the deposition. If an examiner asks questions like that at the outset and the deponent answers without realizing words are being stuffed into her mouth, there is a good chance that questions and testimony are coming later in the deposition that will create a dangerous record.

So be on the lookout!