Blog

Having the time and inclination to prepare as much as necessary–even over-prepare–really is a great equalizer when it comes to the trial lawyer’s craft. I had the good fortune to practice for a brief time with a distinguished aviation trial lawyer, Lee Horton, who gifted to me a primer he wrote years ago to help young associates learn how to try a case. In the Preface to this primer, he wrote:

“Whatever success I have had as a trial lawyer has been based on the following very simple rules.  These are: 1. Recognizing that there are a lot of people smarter than I am, but only a few that can outwork me.”

I am saving the remaining 3 rules from his primer for future posts. But when I read this first rule I found it to be a comforting revelation. I rarely hold the opinion that I am the smartest guy in any room. But when I remind myself of this first “Horton Rule,” I am empowered with the notion that there is an additional X factor that I alone control: how much time and effort I devote to being the better prepared lawyer in the (court) room.

It can be difficult to know precisely how much preparation is necessary. I find that the first time I do anything I tend to heavily over-prepare. For example, I do not frequently argue before appellate courts. However, a few years back an opponent appealed a favorable ruling I obtained on an anti-SLAPP motion. Fully briefed, it came time for oral argument of the case. I knew that I would want to over-prepare because only then would I feel ready for my first appellate court oral argument. I also knew I didn’t want my client to bear the financial brunt of this need to over-prepare, so I queried a few of my partners who had more appellate experience about how long they would typically spending preparing for such an oral argument. While I ultimately spent about three times as much as my partners suggested, I only billed the client for a third of my time.

We can learn from other disciplines about how much preparation is enough. I studied piano as an adult, and my teacher had attended the Moscow Conservatory and often shared stories from his time learning from one great master or another. He once described how hard he would work to prepare for a solo performance: when he thought he had memorized every nuance of a piece he would set his alarm to go off in the middle of the night. He would wake from a deep sleep, go immediately to the piano and play the piece. Only when he could literally play the piece, including every nuance, while still half asleep did he know he was really ready to perform.

There are multiple ways in which excessive preparation can be a weapon. I have learned from judges and mediators that the party whose counsel is better prepared is always at a distinct advantage in a pretrial mediation or settlement conference. On the other hand, there is no rule that says you have to make your opponent aware how prepared you are. I am a great believer in treating opposing counsel as a mushroom (i.e., keeping them completely in the dark) when it suits my strategy. Sometimes I want the element of surprise that comes from not revealing how prepared I am until it’s too late for them to catch up.

Is there such a thing as over-preparation to the point of diminishing returns? Undoubtedly. The key is to have enough lead time to accommodate the preparation you need without sacrificing your health, including mental health. Like most everyone, I pulled the occasional all-nighter in college and law school. But it was exhausting then, and it would be really exhausting now. Definitely not a good way to start a trial.

Ok, so I’m 46 years old and when I was young we had rotary telephones, vinyl records, rode on the backs of dinosaurs, etc. Therefore I wasn’t born knowing that we only put one space–not two–between the end of one sentence and the beginning of another. In fact, I will admit that, like most people of my . . . er . . . vintage, I was suspicious when I started to hearing or reading, I can’t remember which, that I was doing it all wrong.

It turns out that the single space rule is older than I am. According to the oracle (i.e., Wikipedia), the last known official US government document to specifically prescribe double spaces after concluding punctuation was a 1959 government style guide.

Lest you doubt or hate, the 2000 and 2008 editions of the Government Printing Office’s (GPO) Style Manual are unequivocal in their guidance regarding this convention: “A single justified word space will be used between sentences. This applies to all types of composition.” Modern Language Formatting Style (MLA) General Guidelines state: “Leave only one space after periods or other punctuation marks (unless otherwise instructed by your instructor).” There’s apparently also something called the Associated Press Style Book which is equally clear on the subject. And the Chicago Manual of Style. And Typography For Lawyers.

I’ll admit I’m struggling to overcome the sheer habit of double-spacing. I had to go back and fix several sentences in this post.

-Thanks to Dmitriy Kopelevich for setting me straight and providing the background materials.

I last wrote about a recent presentation made to my office by a retired judge, “Practical Advice and Perspectives From the Bench.”  While I found it most compelling (disturbing) to learn that many (most?) jurists in Los Angeles Superior Court, have a policy of denying even meritorious motions for summary judgment, the judge also offered several items of valuable advice.  While much of this will be familiar to lawyers who regularly appear in court, it is all useful and some of us, myself included, benefit from the occasional reminder.  So, in no particular order, here are some of his more valuable insights and suggestions:

1.  Never, ever, ever preface any argument to any judge using “With all due respect . . .”  This conveys the opposite, essentially, “You, Judge, are a moron, incapable of understanding the most basic legal concept . . .”

2.  Do not give equal time and/or space to weaker arguments.  This dilutes the stronger arguments.  Always lead with your best argument.

3.  Avoid repetition.  In the law and motion context, do not repeat arguments from your client’s motion in your reply.  And don’t orally repeat the argument again during the hearing.

4.  Don’t argue when the tentative is in your favor or you’re otherwise winning.  Sit down and shut up.  Don’t snatch defeat from the jaws of victory.

5.  Always give pin-cites (i.e., to the specific page within an opinion).  While this is how I was trained and how I practice, I would not have guessed pin-cites were so important to judges (and research attorneys).  The judge said his practice was always to look up cases lacking pin-cites and 50% of the time the case did not stand for the cited proposition.

6.  Refrain from petty complaints about opposing counsel.  The judge hears this all day long and you’re not furthering your cause, even if you’re 100% correct.

7.  When you appear on a multi-party case, take the time to orient the judge as to who the parties are, how they fit together in the controversy.  We apparently have “no idea” how confusing and disorienting it is to the judge when five different sets of lawyers appear on a case.

Again, many of these are either common sense or things most of us already know.  But, coming as they did from a retired judge, I thought it would be useful to share them.

A retired California state court judge recently came to our office and gave a continuing legal education presentation on law and motion practice–“Advice and Perspectives From The Bench.”  It was engaging, largely because of the judge’s willingness to draw back the curtain and talk more candidly about topics left out of typical CLE programs.  In particular, he offered some illuminating, if not alarming, inside information about how most of his former colleagues on the bench won’t grant a motion for summary judgment, regardless how meritorious the motion may be.  He cited “fear of reversal” as the biggest reason for this reluctance.

I often counsel clients who are unfamiliar with the contrast between state and federal courts in California that a meritorious summary judgment motion has vastly better odds of success if the case is pending in federal court than California state court.  I had not been aware, however, that some state court judges actually have a policy of denying such motions regardless of merit.  In my experience, our district court judges never shy away from summary judgment if the papers establish it’s appropriate.

Why this dichotomy? Why are state court judges so worried about their reversal rate, when their district court counterparts do not seem encumbered by this fear?  Is it the security of a lifetime appointment?  Is it the concern that excessive reversals will hamper promotion to the state Court of Appeals?

Whatever the reason, a predisposition to deny motions for summary judgment, whether there are triable issues or not, does us all a disservice.  In 1993, the California Court of Appeals, in Juge v. County of Sacramento, 12 Cal.App.4th 59, wrote that:

The summary judgment procedure provides the court and parties with a vehicle to weed the judicial system of an unmeritorious case which otherwise would consume scarce judicial resources and burden the parties with the economic and emotional costs of protracted litigation because the lack of merit is not apparent from the face of the complaint or answer. The procedure permits the court to penetrate the pleadings and ascertain, by means of affidavits, the absence of triable issues of material fact. It is in the public interest, including the court’s interest in the efficient and economical administration of justice and the parties’ interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter.*

I do not take issue with the heavy burden placed on a party that seeks to deprive its opponent of a jury trial.  But our courts are buried.  Litigation is expensive–expenses which are necessarily passed through to the public through an increased cost of goods and services.  This isn’t about tort reform.  The legislature has already spoken and developed a mechanism which is theoretically fair to both sides and which, if employed, should lighten the (over) load of courts and drastically reduce the cost to both sides.

Most of us who practice “in the trenches” know that there are a lot of lawsuits which lack merit.  Judges who won’t seriously consider granting a motion for summary judgment on a case that warrants it are certainly doing a disservice to both the plaintiff and her lawyer.  Why prolong the pain and expense?

It’s no secret that, statistically, only a fraction of lawsuits will be tried to verdict.  The vast majority result in a settlement.  But it often takes a looming costly or risky event on the horizon to get earnest settlement discussions going.  Meanwhile, the meter is running and the lives of people and companies are thrown into chaos.  Trial is the most risky and costly event of all.  But a pending motion for summary judgment, before a judge that will grant a meritorious summary judgment motion, can also be a looming risky event which brings parties to the table.  As it increasingly becomes common knowledge that judges are actually “afraid” to grant summary judgment, such motions become an expensive waste of everybody’s time and the “coefficient of risk” remains so minimal that the parties may not seriously discuss settlement until the case nears trial.

What’s the answer? I don’t have a handy one in my back pocket.  Write to your congressperson? I won’t discourage my own clients from filing a meritorious motion for summary judgment, but I will continue to be honest that the odds of winning such a motion, at least in California state court, aren’t so good.

*12 Cal.App.4th at 70.  Emphasis added.  Many internal citations omitted.

Should our trial preparation and presentation be appreciably different when trying a bench trial or arbitration before a single arbitrator? If so, how?

As in most instances, McElhaney offers spectacular guidance on this topic.  Instead of framing the situation as simply a bench or nonjury trial, he reminds us we are still trying a jury trial, it’s just that there is only one juror.  While some of the drama may be diminished, we’re still in the business of seeking a unanimous verdict.  That said, his chapter on Judge Trials from Litigation offers the following advice:

1.  Understand your jury.  “[K]nowing to whom you are talking makes a difference in what you say and how you say it.”  Instead of a half-hour voir dire session, you may have months and months to learn about your judge, including her biases and prejudices.  Make good use of this time.

2.  Win the case before you say anything.  Write a bench brief that really sings, focusing particular attention on the first three pages.  McElhaney quotes Houston lawyer William Pannill: “The first one to explain what the case is really about has a tremendous advantage. The bench brief is an opportunity to do that.”

3.  Don’t relax your presentation just because there’s only one juror.  Use the same care in the order of presentation of witnesses, be concise and concentrate on telling a story.

4.  Preserve objections.  Just because the judge hears evidence before ruling on its admissibility, it remains imperative to preserve the record for appeal.  In fact, objecting isn’t as potentially harmful in bench trials because the judge knows you have to do it.

5.  Finally, even if parts of evidence have been stipulated to, don’t leave these out when arguing the case to the judge or arbitrator.  McElhaney points out that it is sometimes the stipulated facts that “are the best proof of what the case is all about.”

The blawg world was all abuzz recently about comments Justice Scalia made to students at a local law school in Laramie, Wyoming.  When asked about the “best piece of advice” he could give to law students, he advised them not to waste time taking “frill courses.”  More specifically, he said:

“The only time you’re going to have an opportunity to study a whole area of the law systematically is in law school . . . You should not waste that opportunity. Take bread and butter courses.  Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.”

Some excellent posts have sprung from Scalia’s remarks.  Professor Jonathan Turley, for example, pointed out that:

“My students will be better lawyers but [sic] not only learning about the practice but the philosophy of law.  It is both possible and, in my view, essential to get both in your training.  I am distinctly proud of my student’s [sic] in their ability to move seamlessly from the theoretical to the doctrinal in class.”

Simple Justice blogger Scott H. Greenfield contributed at least two valid points on both sides of the controversy.  On the one hand, using the example of a hypothetical class on “Law and Potted Plants,” he writes, “Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen).  There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas.”

On the other hand, Greenfield seems to side with Scalia that “Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who desperately want to push their personal hobbies, example of law and women abound in discussions of property law and contracts.  There are no shortage of pet opportunities.”

While I think these are some great points, the question for me is whether students are really choosing “Law And . . . ” classes at the expense of bread and butter courses.  In other words, is Scalia’s advice misplaced, not because “Law And . . . ” courses are valuable learning opportunities that should not be disparaged, but rather because students are not choosing between, say, a course in Evidence or Civil Procedure and “Law And Potted Plants?”

Unless things have changed in the 20 year interval since I was a law student, most of the “bread and butter” classes are completed half-way through the second year.  This leaves a year and a half to take courses that, hopefully, take the rudimentary skills learned in the first year, and apply them in ways that further cements that learning.  For me, it was Trial Advocacy and Appellate Advocacy.  These required me to use information and skills I previously studied in Evidence and Legal Research and Writing.  Somehow, though, I still had time to take other elective classes in Legal History and Employment Discrimination, which gave me perspective on our profession and spawned my interest in employment law.

So are students who are interested in “Law and Women” or “Law and Poverty” really taking these “Professor’s Hobby” courses (Scalia’s term, not mine) at the expense of courses that address core competencies?  I tend to think not.

The issue I struggle with, and have written about, has to do with the dearth of practical training many students receive before they are released into a legal marketplace that suffers from declining mentoring and training opportunities.  As I said here, brand new graduates who would have received practical guidance from their first law firm or government employer are increasingly left with few alternatives to opening their own law practice out of a local Starbucks just to make their student loan payments.  I’ve read that at least some schools are responding to this need with more practical, clinic-oriented course offerings.

Because nobody respects a fence-sitter, I’m going to come out against Scalia’s remarks.  I think that courses on Law and Women and Law and Poverty are a worthy way to spend expensive law school hours.  Unlike potted plants, these subjects are topical, timely and impact the majority of the world’s population.  I expect they also require students to build upon core competencies, such as research, writing, oral and written argument, in ways that ultimately produce better, more thoughtful and world-changing lawyers.

I’m not holding my breath that anyone is going to ask my best advice to law students.  If they did, however, I would highly recommend intern and externships.  Oh, and keep in touch with every person you meet in school!

Colleagues criticize me because, when pitching to handle a case, I don’t “sell myself” enough.  It’s not just that I don’t sell my own experience or skills well enough, but also that I sometimes don’t paint an overly optimistic picture of the case.  What it’s going to cost.  How we’re virtually guaranteed a great outcome.

These may be valid criticisms, but I’ve always preferred the notion of being conservative about the expected outcome of a case.  I also never want to be accused, at the end of a case, of having misrepresented what it will likely cost to get the desired result.  I’ll admit such honesty has probably cost me business.

It turns out, though, that such honesty may be the very best thing when vying for the role of the trusted advisor.  At a recent conference, I learned that, based on comments gathered from general counsel at major corporations, the perception that an outside lawyer was being honest, potentially against his/her own interests, was actually a relationship “accelerator.”

So, when do opportunities arise for outside counsel to “accelerate” their client relationship through honesty at any cost?  Here are just a few:

1.  “I might not be the best lawyer for this particular case (or deal),” and I know that means you may not hire me.

2.  “I want to make sure you have a realistic idea what this is going to cost,” even though you might decide then not to sue or to settle instead.

3. “Your chances of winning are probably not going to improve by doing this additional discovery,” even though a scorched earth approach is vastly more profitable for me.

In addition to sleeping better at night, an incidental benefit of this kind of honesty is that, while I might not be the perfect lawyer for this particular case, or you decide not to sue this time, I know you are going to trust my judgment.  That’s really what I want, to be the trusted advisor, so you’ll think of me next time, and the time after that.

Soundbite questions are a hallmark of depositions taken of Persons Most Knowledgeable (PMK aka Persons Most Qualified or PMQ) within an organization on certain topics.  Here are some examples:

“Does your company, manufacturer XYZ, have ethical considerations in the design of its products?”

“Does ABC Hospital care about the safety of its patients?”

“Was it important to your company that African-American employees not be harassed because of their race?”

Of course the answer to these door-openers is an enthusiastic Yes.  The problem is the inevitable follow-up:

“Then why didn’t you recall product 123 when you learned it was defective?”

“If you cared about preventing harassment, then why did you skip harassment training in 2011?”

These kinds of questions are intended to elicit soundbite responses that are, at best, only marginally relevant.  But they can leave a strong negative impression with the jury if they somehow get into evidence. You can object until you are blue in the face, and chances are slim that the colloquy ever gets read to a jury, but do you want to take that chance?  Even though I can’t anticipate every kind of soundbite question an opponent will ask my witness, I like to prepare her to recognize and effectively “manage” these questions.

One of the best ways to limit bad PMK or PMQ deposition testimony is to make the witness really understand the scope of his or her intended examination.  For this purpose, I do not rely on the language of the deposition notice or subpoena.  Rather, I typically object to the deposition notice, which is inevitably overly broad or problematic for other reasons.  I then indicate, in the objection, that my client “will make a witness available who is knowledgable about . . .”  This gives me some measure of control over what is going to happen in the deposition.  For example, I never make a witness available to testify on ridiculously overbroad topics like “safety.” Rather, a notice asking for a witness on the “safety” of a product will get an objection promising instead a witness who is prepared to testify about “design considerations” or “testing.”  If opposing counsel receives my objection and has a problem with it, I expect he/she will raise the issue and we will hash it out before the day of the deposition.  Failing that, I take the position that the language of my objection governs for purposes of scope.

Now, this may seem strident.  However, if push comes to shove and we need to appear before the judge, (1) I have not conceded anything and there is an opportunity to fully brief my client’s position; and (2) the burden is on the party noticing the deposition to move to compel, rather than having the burden on my client in moving for a protective order.  As Denzel Washington points out, in Training Day, “The shit’s chess, it ain’t checkers.”

Since I have had some say in the scope of the witness’ examination, I want to make sure the witness knows the boundaries of this scope.  After explaining this, I reinforce it by asking a series of mock deposition questions that fall just inside or outside the scope.  This practice helps the witness feel comfortable asserting that the question is outside the scope of her deposition.  I also teach her to listen for my objection that the question is outside the scope.

Unfortunately, while some examiners will walk away when the witness resists an invitation to give a soundbite, others are more persistent.  They will ask the same question over and over until they get a response, or slightly change the question until they get an answer they think is useful.  Preparing my witness for this kind of persistent examination requires consideration of my overall theme in the case.  For example, if my client made a single part that was incorporated into a larger product that is claimed to be defective, my theme might be that my client made the part according to a specification.  I teach the witness to restate this theme in a way that she finds comfortable, then help her to apply it in response to a variety of different questions.  Again, practice through hours of mock questioning is the only way to “train” my witness how to incorporate the theme into her responses.

The most important thing is to put my witness on notice that she is likely to be asked soundbite questions.  Since the questions can seem innocuous (“You care about safety, right?), and seasoned examiners know how to sandwich them in between more legitimate questions, it’s important for the witness to remain vigilant.

I’ve written about dealing with difficult or overly coaching counsel when trying to conduct a deposition.  Considering that the entire purpose for taking a deposition is to gather evidence, and a coaching or otherwise difficult opposing counsel can undermine this goal, this is an important issue.  Unsurprisingly, Professor McElhaney, in his excellent Litigation (aka the Bible), offers a wise strategy for dealing with these situations.  In a chapter entitled “Pit-Bull Depositions,” he discusses The Wedge.*  Because I cannot say it better, here’s a quote: “[T]he lawyer is coaching the witness because he is afraid of what the witness might say.  That means he has not adequately prepared the witness for the deposition.  It also means he is afraid you are getting close to something that might help your case or hurt his. . . . [T]here are probably better things to do than run to the judge when a lawyer coaches a witness during a deposition.  One of them is to drive a wedge between the lawyer and the witness.”  (Id. at 53.)

How to do this? Professor McElhaney suggests you change the dynamic of the deposition, so that the witness begins to see how her attorney is interrupting her and preventing her from telling her side of the story.  The witness will likely already be irritated that her lawyer did not adequately prepare her for the kinds of questions you are asking (or perhaps did not prepare her at all).  Capitalize on this dynamic by encouraging the witness to finish telling her story.  In addition to the above, I would add that a calm, prefatory response to the attorney might also be useful.  I’m thinking something along the lines of, “Counsel, you and I both know that what you’re doing is against the rules and making the deposition a miserable experience for your client.  That’s not my goal.  It’s also going to make this take much longer than necessary because I have to re-ask the question every time you do it.  Your client is entitled to tell her own version of the events, let her do it. We can hash through your technical objections later with the judge.”

This, of course, requires the examiner to maintain a calm, professional composure throughout.  Raising your voice, or even scowling will tend to reinforce the Us vs. Them dynamic and cause the witness to cling to her lawyer, regardless how poorly she was prepared for the deposition.

*McElhaney credits New York lawyer Patricia Hynes for this strategy.  That either renders this post triple hearsay or I owe Ms. Hynes a royalty.

This is my second blog.  I first blogged when my wife and I took a sabbatical to travel throughout Asia from the Fall of 2006 to the Spring of 2007.  I really enjoyed my blog, even when we were in China and I had to figure out workarounds to enable me to publish posts despite government internet censorship, or while in more remote parts of India where just getting on the net was a challenge. I tried to post everyday and it allowed me to keep in fairly immediate touch with friends and family.  I even remember rather vividly pounding out a post from an internet cafe in Nepal and glancing out the door to watch a painted elephant stroll by.

More satisfying than the ability to immediately communicate our amazing experiences, though, I found the blog to be a really great creative outlet during those months.  Like many lawyers, I always dreamed of being a novelist.  When I hadn’t found my voice by the end of college, I figured I better find a more . . . er, reliable way of making a living.  (This was obviously a different era, when becoming a lawyer still seemed like a reliable way to earn a living.)  But I’ve never let go of that longing to write, though I won’t be quitting my day job anytime soon.  Thankfully, blogging–even if only to a small audience–provides a great creative outlet.

Maybe I was destined from a young age to enjoy blogging.  When I was around 8 or 9, I used to hunt-and-peck on the typewriter to create a small newspaper, covering such gripping topics as our cat’s health.  Using carbon paper, I’d make several copies, which I then delivered on foot or by bicycle to many of our neighbors within roughly a 2 mile radius of our house.  (I also went door-to-door offering to shine shoes, so it’s not clear that I was really any more destined to write a blog than to shine shoes or sell vacuum cleaners.)

After the Spring of 2007 and the purpose for my first blog evaporated, I flirted for a couple of years with starting a new blog, but didn’t do it.  I couldn’t think of anything that interested me sufficiently to write about it several times a week (and it’s just lame to start a blog, publish a couple of posts, then let the thing wither and die).   Then, one night I had dinner with one of my wildly successful college buddies and he suggested I start a blog as a business development tool.  At that point, I knew about a few interesting law blawgs, but I didn’t follow any religiously. I also had my doubts about whether blogging is a good business development tool.  Still, I enjoy writing, and I respected my college buddy and decided to give it a try.

I struggled for months with what kind of blog to write.  Since I really focus on employment issues in my law practice, should my blog simply track employment law developments or best practices? There are tons of these already out there, and not every new or changed law is interesting enough to write (or read) about. I also wanted some flexibility.  There are some really excellent blogs with a really narrow focus, but my interests, even within the profession, tend to drift.  After trying on a few different hats, I settled on the blog you’re reading now.  It marries my appreciation for litigation that is practiced ethically and practiced well, with my interest in the business side of the profession.

Now, re-reading the last two paragraphs, I see that I need to clarify something.  While it was a suggestion from a friend (who writes an enormously popular blog) that got me to revive my then-dormant desire to start a blog, I don’t write this blog for business development purposes, or even consider blogging a particularly good client development tool (perhaps a subject for a different post).  In truth, I use business development as an excuse to maintain a blog, which is itself just an excuse to write.