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Certainly the biggest challenge for me, as an outside or, if you prefer, “outhouse,” lawyer representing private clients is keeping up my client development efforts, even when I’m absolutely slammed in the actual practice of law.  I know I’m not alone and this challenge is hard for just about everybody on the outside.

I sometimes envy people with client-development or sales-type jobs that allow (or force) them to focus exclusively on selling.  Unlike a pharmaceutical representative or residential realtor, lawyers have to constantly balance the substantive side of the job (conducting discovery, writing and arguing motions, preparing for trial) with the sales side (writing, speaking, meeting, etc.).  When push comes to shove, at least for me, the sales side usually takes a back seat to the demands of the practice.  This isn’t surprising: clients hire trial lawyers to litigate cases, not to spend their time finding new clients and more cases.  Also, lawyers aren’t typically sued for malpractice for neglecting their marketing responsibilities and focusing instead on winning the case.  On the other hand, without a pipeline of new work, we find ourselves languishing, dead in the water, when a busy case resolves.

In a perfect world, I would use others to appropriately leverage both sides of my job.  I would have associates and paralegals available to leverage for performing practice-related tasks they are equally, if not better, suited to do.  But then I would also have someone, even a part-time employee who could help make sure I keep up with my marketing and networking responsibilities, scheduling meetings, arranging for articles and speaking opportunities.

Alas, it’s not a perfect world, yet.  Until then, I’ve got to keep struggling not to neglect my marketing efforts when, as in the past few weeks, I’ve been extremely busy with a particular case.  I recently spoke with my business development coach about this challenge.  His suggestion, loosely paraphrased, was that I shift my orientation away from being a legal “practitioner” to being a legal “business developer.”  I should understand as my primary job, not to win cases or achieve favorable settlements, but rather to generate more business.  I’m not sure I understand or completely agree with this view.  But thinking about the issue has helped me develop some  simple strategies designed to help me maintain the law practice/business development balance, even when things get hectic.  Here they are:

1.  Schedule, schedule, schedule.  Like many litigators, I live my life out of a calendar.  I’ve found that, provided I get a coffee, lunch or dinner date on my calendar, I have little trouble scheduling around this appointment.  The takeaway:  get something on the calendar, even if it has to be rescheduled later.

2.  Combine case-related travel with visits to existing or prospective clients.  The most successful practitioners I’ve known make it a habit to visit existing and prospective clients face-to-face whenever they are “in town” for another reason.

3.  Calendar follow-up steps.  For every 5 appointments I schedule for coffee or lunch, at least 3 cancel or reschedule.  I have a bad habit when someone cancels at the last-minute of failing to follow through immediately to get a new date on calendar.  The result is a long, long delay and starting from scratch on the rescheduling.  I’m trying now to follow-up right away when someone cancels to get a new appoint on our calendars, even if that, too, eventually must be rescheduled.  Ideally, no meeting will be left behind.

4.  Do business development before anything else.  This is one my biz dev coach really likes.  He suggests I spend between 5 and 30 minutes each morning on client development before doing anything case-related.  I’ve tried to adopt this, but it’s challenging given the unpredictability of a litigation practice.

Hopefully, these 4 strategies will help me stay out of my shell and not find myself dead in the water whenever a particularly time-consuming case resolves.

Bloomberg TV interviewed Vel Hogan, the foreperson of the jury in the recent Apple v. Microsoft patent trial, which returned a $1 billion verdict in Apple’s favor.  Undoubtedly future jury consultants will anchor entire PhD theses on this trial.  I don’t pretend to have the education and experience to do any kind of in-depth analysis.  But a few interesting points can be quickly gleaned from the interview.

Takeaway Number 1: Vel is smart.  But not just intelligent or wise.  He possesses the kind of intelligence, training and knowledge necessary to grasp much, if not all, of the technically sophisticated evidence presented during a patent trial.  According to my crack internet research, Hogan is VP of Engineering for Multicast Laboratories.  He holds patents and has been a member of the Silicon Valley tech community for over 30 years.  I would think most patent lawyers would be heartened to know jurors of Vel’s intellect are out there, available to be impaneled (particularly if your trial is conducted in a venue rife with tech engineers).  He said in the interview that the jurors were “inundated” with evidence.  Someone less intelligent or uninterested in technology could easily have been overwhelmed by the evidence and, rather than considering and re-considering the evidence–a great deal of which was highly technical — reached a verdict instead based the cut of John Quinn’s suits or because they like Apple’s TV commercials.

On the other hand, for the reason I am about to discuss (in Takeaway Number 2), many trial lawyers might be fearful of a juror of Vel’s intellect in this kind of case.  Purely from the interview, it does not appear Vel had any bias going into the trial or deliberations.  He owns no Apple products; his wife has a Samsung phone, but it’s not a smart phone.  If he had any bias that he concealed during voir dire, but that he brought into the jury room, it could have been a problem.  Why?

Takeaway Number 2: Vel served as a torch-bearing guide to most of the other jurors.  I speculate that it took the other jurors no time at all to select Val as their foreperson.   They knew from voir dire that he was a techie.  They probably paid attention to his expressions and slightest comments throughout the trial.  If/when he took notes, they either wrote notes themselves or wondered what they had missed that was so important.  He said in the interview that they started deliberations with a question and answer session, trying to clear up confusion some of the jurors had about certain issues.  Vel was thus their teacher, and their trusted guide in a way that none of the lawyers or witnesses could have been.  I suspect this was particularly true because I read about (and Vel Hogan alluded to)  Judge Koh’s frustrations with the lawyers for both sides throughout the trial.  The judge’s scoldings likely eroded the jurors’ confidence in the lawyers to guide them through the trial.  Thus, as a knowledgeable, likeable, apparently objective teacher and guide, Vel Hogan’s ability to influence the outcome of the trial was enormous.

Takeaway Number 3: Vel took the legal questions home with him and continued to deliberate.  He alluded during the interview to an “Aha” moment he had one night during the deliberations.  Before that, at the outset of the deliberations, he thought the verdict would likely be in Samsung’s favor.  But there was a single point that he struggled with (whether the No. 460 patent was invalidated by prior art).  He said that, after he internally resolved that struggle and decided he could defend the patent if it had been his own, much of the remainder of the deliberations went smoothly.  I speculate (with extra emphasis on that word) that the deliberations thereafter went smoothly because Vel, as the torch-bearing guide and teacher, had made his decision.  All that remained was for Vel to explain his own reasoning to the others.

Takeaway Number 4;  The jurors worked in a systematic fashion to reach their conclusions.  Several comments during the interview suggested that the deliberations were indeed deliberate.  They addressed the “simplest things first.”  If they hit a bump in the road, it would not derail their progress.  Rather, they suspended judgment on that point and moved on, with the plan to re-address the bump in the road informed by the outcome of their other deliberations.  In this way, they navigated their way (with their torch-bearing guide) through a veritable morass of evidence and instructions.

The interview is worth watching.  If I’ve mis-paraphrased Vel’s comments, please let me know.  I struggled with embedding the code, so the best I can offer is a link: https://bloom.bg/OkRkhk.

 

I have a friend who is a BSD in the venture capital world.  I reached out to him a while back because I had read that one of the companies his firm was funding was about to undergo a significant expansion.  I asked my friend if he wouldn’t mind introducing me to the company’s general counsel, so I could get my foot in the door in helping the company establish a solid platform for management of employment issues which were bound to arise, given their imminent hiring.

To my surprise, my friend rebuffed me.  “To tell you the truth,” he said, “it’s really not something that’s on their radar at this point.”  I let it pass–there might have been a variety of reasons he didn’t want to make the introduction.  But, suppose he was telling me the truth, that he thought the general counsel of this emerging tech start-up really didn’t need to be thinking about who to use to prevent and, if necessary, deal with employee “issues.”

If he was telling the truth, I think he was mistaken.  This is particularly true given that the company was domiciled in California, unquestionably the most hostile legal environment in the world for employers.

Granted, I don’t think selecting employment counsel is on par with raising funds or gaining market share. If the company fails, there won’t be employees to make claims or file lawsuits.   On the other hand, meeting and potentially retaining a legal expert to review the company’s policies, draft or revise a handbook and perhaps conduct some training is neither time-consuming nor rocket science.  It is certainly not expensive.  Particularly if the ounce of prevention establishes, at the company’s early stages, a solid foundation which prevents even one otherwise avoidable employment lawsuit.

I have seen up close organizations that started and grew without a solid, systematic adherence to employment laws.  In each instance, I’ve become involved only after the company has been sued and we are trying to frame a defense.  At that point, the company’s management invariably recognizes its shortcomings and vows to do better going forward.  Unfortunately, this only happens after the company is forced to spend tens of thousands (or more) in settlement and defense costs.

It is not unusual for small employers to look to their “business” counsel for guidance on complying with employment issues.  This is the lawyer that drafted their articles of incorporation or negotiated a lease.  However, it is more common for this to occur only after there has been a claim or suit.  Before that time, my friend is right, it’s literally “not on their radar.”

I’m partial to the idea of working with a lawyer that concentrates his or her practice on employment defense, rather than a business generalist.  There are lawyers who do nothing but employment advice and counseling, which is who I–a litigator–will look to if I’m confronted with a particularly unusual question.  The problem for the commercial lawyer in advising on employment issues is the rapidly changing nature of employment laws.  An additional problem arises when the claim goes further, and ripens into an administrative complaint with the Equal Employment Opportunity Commission (EEOC), California’s Department of Fair Employment and Housing (DFEH) or similar agency, or if there is a civil lawsuit filed.  While the company’s business lawyer might be a wizard at negotiating a complex lease, he or she might struggle when conducting a deposition, drafting a solid motion for summary judgment or representing the company in front of a jury.

I have all the respect in the world for entrepreneurs.  And I expect there are a thousand and one issues and headaches to successfully navigate without having another lawyer stick his or her nose into how the company runs its business.  But the last survey I saw said that the average verdict or award in employment lawsuits where the employer lost was over $400,000 (and this was a few years ago).  I’d argue that it’s never too early to put retaining an employment lawyer “on the radar.”

 

Not everyone is cut out to play the boss.  While I suspect there are a few sadists who actually enjoy the act of firing an employee, most people hate delivering bad news and learning you’re now jobless usually ranks near the top of the bad news heap.

From the point of view of a lawyer who represents employers in lawsuits, however, I view the process of termination to be extremely important.  It can be tempting, when one is forced to deliver the news, to sugarcoat.  Most sugar-coating doesn’t really make anyone feel better.  For example, “you’ll always be part of the family,” or “you’ll thank me someday for this chance at a fresh start,” might have worked for George Clooney in “Up In The Air,” but it’s a pretty stupid thing to say in the real world.

One brand of sugar-coating that can be really dangerous concerns mischaracterizing a termination for poor work performance as something other than what it is.  In particular, suggesting a sub-par employee is being “laid off” creates substantial risk.  If the “redundant” employee is replaced anytime in the near future, it sets the stage for him or her to argue, in a subsequent discrimination lawsuit, that the lack of work was merely a pretext.  That the actual goal was to eliminate the employee on the basis of some protected characteristic (i.e., race, gender, disability, religion).  This kind of evidence plays well at trial: like all of us, jurors love to hear about conspiracies and cover-ups.

One way for employers to make the act of termination less of a surprise–and therefore less painful for everyone involved–is to make termination the final step in a progressive discipline policy.  Implementing such a policy starts with  a frank discussion with the underperforming employee that is documented by a dated, written record of the discussion.  This type of discussion does not even need to be characterized as discipline, but rather a coaching tool.

If verbal discussions (documented) do not improve performance, the next step should be a written notice that describes the problem, proposes a solution and is provided to the employee concurrently with the verbal discussion.  The employee should be asked to sign this document, and perhaps there will be a space dedicated for any response the employee might have.  lf the problem persists, the possibility of one or more additional written notices/warnings can be provided, but the message communicated should be that, after a defined number of written notices/warnings, termination will result.

A progressive, documented discipline policy serves two really important purposes.  For me–your lawyer–it is important evidence if a wrongful termination or other lawsuit results from the employment relationship or termination.  Perhaps more importantly, though, it gives the employee every chance to succeed.

I recently defended a fairly contentious deposition.  To my surprise, my witness complained to me during a private meeting halfway through the deposition, “I wish you’d really give it to him.  If I was a lawyer, I’d never let him (opposing counsel) get away with that.”

I was frankly surprised.  While I wasn’t obstreperous, I hadn’t been a shrinking violet, either.  The examining counsel had asked mostly crappy questions and my witness had been really well prepared (in my not-so-humble opinion) over the better part of two full days.  I thought the deposition was going swimmingly.

I sensed that the problem, from my witness’ perspective, was that she was wounded by the way the examiner was treating her and bitter that certain facts she viewed as private (family status, country of origin, etc.) were being dragged out of her in what appeared to be a harsh, public way.  She’d never been deposed before, and wasn’t used to how lawyers routinely twist and torture the meaning of a witness’ testimony.  I realized it wasn’t that she felt that I wasn’t doing a technically capable job, but more that she expected any lawyer on her side to exact a pound of flesh from the examiner.  After all, what else was I there for?  She wanted John Wayne with a briefcase.

I told her, “I actually think you’d find it harder to concentrate, understand the questions and answer if I had really mixed it up with him.”  This is based on experience.  In the past, when I’ve encountered a real asshole examining my witness, or when I’ve been flabbergasted by a particularly egregious line of questions, or just had too much caffeine, I’ve turned into a real jerk.  (Turns out I can portray a pretty good jerk–who knew?)  I’ve always reflected afterward that, while I might have dished out some really cutting barbs, had I been a good advocate?

I certainly hadn’t improved the record.  (In fact, I’ve worried after particularly hot tirades about the possibility my Mamet-esque monologue might find its way into an exhibit read by the judge.)  Worse, though, I’d always felt afterwards that the additional tension caused by our dust-up exacted a psychological toll on the witness.  Sure, there are people used to concentrating and communicating in abusive environments.  But I’m sure the abusive environment rarely made them concentrate or communicate better than they would if those around them treated each other with respect.

At the end of the day, as I explained to my witness, what matters most is the transcript–the written record.  (Unless the deposition is videotaped.)  Whether I verbally punish the examining lawyer, or even make it more difficult for him to do his/her job, it’s unlikely to improve my client’s chances of prevailing, particularly if I engage counsel in a vitriolic exchange which makes it hard for anyone to think.  The best revenge, I told my witness, is to win the case!

Because my finger is ever tapped to the thumping pulse of civil procedure in our fine state, it only took me slightly over a month to realize there’s a new and improved way to lose your right to a trial by jury.  Still, I’m guessing that this will be news to some, hence the post.

Senate Bill 1021 was apparently signed and has already been made effective in at least some California counties (at least San Francisco and Los Angeles).  This amends Code of Civil Procedure Section 631 to provide that, where the deadline to post jury fees had been 25 days before trial, a party now risks waiving the right to jury trial unless he/she/it posts $150 in nonrefundable fees no later than the initial case management conference (CMC).  If there is no CMC held in a case, the deadline becomes 365 days after the complaint is filed.  For parties entering a suit after these deadlines have passed, the old 25 day before trial rule applies.  Thankfully, Section 631 retains the provision providing a court discretion to grant a jury trial to a party that arguably waived that right though failure to pay.

I can’t pretend to be surprised that the state is looking for new sources of revenue.  Forcing parties to post fees sooner and making the fees nonrefundable is one way.  It’s getting more and more expensive to sue or be sued (assuming you want a jury).  I’m reminded, though, why transactional lawyers are glad to hand off lawsuits to litigators–our practice is so filled with dread-inducing deadlines.

I’ve been embroiled in a multi-week deposition bonanza in a religious discrimination case.  Yesterday, though, I experienced a first.  We were deposing the plaintiff.  Her lawyer is very seasoned.  While my co-counsel was conducting the examination, I was astonished to see what looked like plaintiff’s counsel passing subtly passing his client a small, square post-it note with writing on it.  I watched a little longer and, lo and behold, the plaintiff, while trying to respond to a question, looked down and read the note!

I called him on it.  To my amazement, plaintiff’s lawyer became indignant.  “I will counsel my client in any way I see fit,” he announced.  “Really,” I said.  “Well, don’t pass notes while questions are pending.”  A half hour later I saw him do it again.  Again, I called him on it.  This time he became even more indignant.

I suppose I should do some research to find out if coaching one’s client in deposition by means of written notes could somehow be an approved method of advocacy.  If it’s not prohibited, it certainly should be.  Who knows what he was writing to her.  It was probably just something innocuous, like “slow down” or “just say yes or no.”  On the other hand, it could have been substantive information, substituting the lawyer’s own memory for that of the witness.

Either way, depositions are not three-way conversations.  They are question and answer sessions designed to uncover facts.  I know there are all kinds of competing views on how involved the lawyer representing the witness should be in influencing the testimony, and I’m not above making speaking objections if I feel it’s necessary to protect my client.  I’ll also “remind” my client that certain questions ask only for yes or no, or point out that he or she has answered the question.  But I draw the line at passing notes back and forth during examination, even if only because it creates an appearance that something shady is afoot.

Like I said, my opponent is a very seasoned employment lawyer.  He’s brought his young protege associate along with him to every deposition.  I wonder if the protege is going to think it’s ok to pass notes to a deponent.  Or if he’ll just assume all defense lawyers are jackasses because I called out his boss on something I think is unethical.  My hope is that the young lawyer will think for himself, and decide for himself whether it’s ok to influence evidence gathering this way.  Mentors are important and valuable, but not if they carelessly pass on bad habits to impressionable young lawyers who represent the future of our profession.

You are a CEO reporting to an angry board.  You are a sole proprietor with the future of your business at stake.  Or you are an employee accused of discrimination or harassment, with your job and relationship at home on the line.  Lawsuits are long, drawn out, often dramatic ordeals; they exact a toll on the participants.  What follows are some ideas about how to cope with this drama and stress:

1.  Find a lawyer you trust.  This sounds obvious, but it can take some searching to find the right attorney.  He or she must be competent in your eyes, or your stress level will increase.  Equally important, your lawyer must be able to manage the stress of the suit or, again, your stress level will be worsened.

2.  Trust the lawyer you find.  Once you find the right lawyer, trust him or her.  It is rare that your lawyer will not want and expect you to be truthful with him or her, even if the facts are bad or embarrassing.  Your lawyer is in the best position to help you or your company; arm him or her with the true facts.

3.  Participate in your case.  I have found that individual clients who take an active role in their case experience a feeling of control.  It’s not illusory.  Your lawyer can only work with the tools and materials made available to him or her.  You can do quite a lot, by locating and organizing documents, educating your lawyer about the nuances of your business or the circumstances of the case.

4.  Manage your anger, fear or frustration.  The stress of being the target of a lawsuit is not dissimilar from other traumatic or stressful events.  Experts coach those going through a divorce or enduring a tragedy to use exercise or relaxation techniques, like meditation, to manage the stress.  Think of a lawsuit in the same way.  One caveat:  bear in mind that communications with someone other than a spouse or lawyer about the details of the case can be “discovered” and potentially used against you if you say something damaging.  Consult with your lawyer before speaking in any detail about your case with someone who is not your spouse.

5.  Try not to direct your anger or frustration at your loved ones.  This will only make it worse and potentially cause damage that can be permanent.

6.  Try not to direct your anger at your lawyer.  Don’t kill the messenger.  In most instances, your lawyer is doing the best he or she can to protect your interests.

7.  Brace for the long haul, but know it will come to an end.  The cliché, “this, too, shall pass,” is true.  Every lawsuit will come to an end, and there will be an opportunity for closure and new beginnings.

In his book, Litigation, Professor James McElhaney laments the fact that civil litigators are horrified at the prospect of a blind cross-examination.  As a result, he argues, “[e]very year we spend millions of dollars on needless depositions of ‘witnesses’ who have little to say and nothing to add about the cases in which they would never be called to testify anyway.”  But we depose them, he suggests, because we’re scared to death of asking a question to which we don’t know the answer.

In Litigation, he provides some suggestions to civil litigators who, despite their best efforts, find themselves in a blind cross-examination situation.  One of these, which he terms “Duck facts,” I particularly like.

Duck facts refer to things for which you don’t need proof.  “If it looks like a duck and walks like a duck and quacks like a duck, it’s a duck.”  The classic example of this is where the witness tries to testify to something that makes no sense at all.  McElhaney’s example is pretty good:

“Q.  You say Schultze didn’t throw the bowling ball at Malone?

A.  No way.  He just dropped it.  It was an accident.

Q.  So Schultze just dropped the bowling ball?

A.  That’s right.

Q.  And then it just rolled onto Malone’s foot?

A.  That’s right.

Q.  Uphill?”

For those of us who continue the practice of deposing every conceivable witness, practicing duck facts questions, and looking for duck fact opportunities will surely sharpen our skills.  I keep waiting for that case where the client forbids me from conducting any pretrial depositions and forces me to go to trial “cold.”  I’ll get to practice my blind cross skills  in real-time.

California Assembly Bill 1875 would limit the deposition time to 7  hours, thus mirroring the Federal Rule.  There is currently no limitation at all for cases pending in California state court.  Is the proposed 7 hour limit a good idea?

My experience tells me that most depositions in many kinds of cases can (and definitely should) be completed in less than 7 hours.  That said, I’ve had the issue repeatedly arise in employment discrimination and sexual harassment cases in which the plaintiff’s deposition cannot reasonably be completed in 7  hours.  In fact, the plaintiff’s deposition in a sexual harassment case involving multiple instances of conduct allegedly occurring over the course of 3 years could not be reasonably completed in less than 20 hours.

The good news with this California legislation is that it would exempt cases involving employment issues or which are deemed complex.  It would provide the parties a choice to opt-out by stipulation.  Expert depositions would also be exempt from the limitation.

The stated purpose of the bill is to prevent attorneys from deliberately using the deposition to harass a party or witness or needlessly increasing the litigation costs of a case.  I’m not so sure.  While I’ve felt that some attorneys could be more organized with their examination and sometimes they seem to dwell on areas that ultimately bear no fruit, it is important that examiners not feel unduly rushed or constricted.  I could probably count on one finger or less the number of times I’ve honestly felt that an examiner was dragging out a deposition for a purpose other than legitimate fact gathering.  As far as harassment goes, I bet most people find the entire deposition process to be an exercise in harassment.  A lawyer intent upon harassing a deponent can do so as easily in 7 hours as 10, so is the law necessary?

On balance, I think members of the bar should think and act like professionals.  We should not engage in harassing behavior.  Nor should we drag out the length of a deposition unnecessarily.  If somebody gets out of line, there are remedies available, including a protective order and/or sanctions.  But I’d like to think we can govern ourselves without the need to be overregulated.  So let us decide for ourselves how long it takes to complete a deposition.

Oh, and please don’t ask after the first hour how long I think I’ll take for my examination.  That is just soooo annoying.