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(323) 652-9451 - LAA great recent post at What About Clients? highlights a policy that will benefit most trial lawyers. Basically, no later than 60 days before trial, take a fresh look at everything. Here’s how it goes:
“[N]o more than 60 days from trial, read over and take a proverbial bath in all of the written discovery responses and–if time permits–every deposition transcript in the case. Work through the materials relatively quickly but as thoroughly as you can. In particular, do one good read of any deposition you did not take yourself. And of all written and signed discovery responses (you can skip the documents). Go back to the start of the case. Do not rely only on deposition summaries or on outlines of direct or cross examinations prepared by others. The process of “immersing yourself” in all the discovery will suggest new sub-themes, patterns, weak points and even a new fact or two in your opponent’s case that meant little to your side when it was first produced. Now discovery will take on new and instructive meanings. Having gone through that exercise, you will be steeped in the case. You’ll have knowledge that will give your examinations of witnesses credibility, authority and command.”
This alone is a great idea. But I think the review could be an even more meaningful exercise if it is informed by what you’re going to do with the evidence you find. When, for example, does it make the most sense to highlight a piece of particularly powerful evidence? I like to have copies handy of the most important jury instructions I expect will be given at trial. This way, as I’m taking a bathin the evidence, I can develop a plan where the evidence will be best presented. It also gives me a head start on how I’m going to structure my closing argument, where I take the jurors though each element of a claim or defense and show how the evidence proves or disproves a particular element. I like to think this is a great idea made even better.
An article in the June issue of For the Defense offers guidance on selecting the best mediator for a particular case. Among the different styles of mediator (evaluative, facilitate, hybrid), one that is often overlooked is a style denominated as the “transformative” mediator. Why is this style disfavored? I decided to dig a little deeper.
According to the oracle of all truth, Wikipedia, “the transformative approach . . . takes an essentially social/communicative view of human conflict, [in which] . . . a conflict represents first and foremost a crisis in some human interaction—an interactional crisis with a somewhat common and predictable character. Specifically, the occurrence of conflict tends to destabilize the parties’ experience of both self and other, so that the parties interact in ways that are both more vulnerable and more self-absorbed than they did before the conflict. Further, these negative dynamics often feed into each other on all sides as the parties interact, in a vicious circle that intensifies each party’s sense of weakness and self-absorption. As a result, the interaction between the parties quickly degenerates and assumes a mutually destructive, alienating, and dehumanizing character.”*
This all very Heideggerian and existential, but will it settle cases? Well, it seems that may not be the only goal. “Success is measured not by settlement per se but by party shifts toward personal strength, interpersonal responsiveness and constructive interaction. As parties talk together and listen to each other, they build new understandings of themselves and their situation, critically examine the possibilities, and make their own decisions. Those decisions can include settlement agreements, but no one is coerced into any decision or agreement. The outcomes are entirely in the parties’ own hands and subject to their own choices. Effective mediator practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging party deliberation and decision-making, and inter-party perspective-taking, in various ways.”*
There might be something to this. In my experience mediating disputes that are particularly emotionally charged, attorneys can walk away quite satisfied with a clean, buttoned-up settlement, but the parties themselves come away feeling they “sold” their case too cheaply (or “bought” their peace at an unfair price). Mediations that dispense too quickly with the “heart” of the dispute and rush into exchanging dollar figures based purely on estimates of damages or jury verdict potential can leave plaintiffs feeling like they haven’t been heard. While a fat settlement can sound appealing, it usually won’t heal all wounds. This is particularly true in catastrophic cases involving the loss of a loved one or legitimate sexual harassment suits where the plaintiff feels he or she was just “bought off,” or paid to shut up.
Other cases can be difficult to settle where (1) there is no real money available to fund a satisfactory settlement; or (2) there are residual questions that need answers money can’t buy (“What caused the car to catch on fire?” or “Why wasn’t he fired long ago if others complained?”) Taking the “usual” approach, focusing purely on dollars and cents, might not get the job done. In these circumstances, it can be very healthy and helpful for the mediator to engage in the kind of counseling approach unique to transformative mediation. I’ve also been involved in cases (some very serious) that went away with no exchange of money where the defendant’s counsel or a knowledgeable employee took the time to explain to grieving parties exactly what happened and how it happened. Plaintiffs may want most of all just to vent frustration or anger. A party that feels he/she has been finally “heard” can be more reasonable, making it possible to settle an otherwise impossible case to settle.
Transformative mediators certainly are not appropriate to every dispute. For example, when I’ve accompanied very skilled or sophisticated client representatives to mediations, they look for ways to control the negotiation process, and can be incapable of suspending the factual or legal controversy long enough to permit a wounded plaintiff simply to be heard. They want only to drive home the point that the plaintiff is wrong and she will lose at trial. In this environment, neither the plaintiff nor the defendant will believe their needs are being met and compromise becomes unlikely.
* Citing, Bush, R. A. B., & Pope, S. G. , “Changing the quality of conflict interaction: The principles and practice of transformative mediation,” Pepperdine Dispute Resolution Law Journal, 3(1), 67-96.
The Defense Research Institute (DRI) is seeking new members and I promised to do my part with this public service announcement.*
I’ve belonged to DRI since my first year of practice and I have found it to be a great resource and, at times, a lot of fun. Over the years, I’ve belonged to the Young Lawyers, Products Liability, Trial Tactics, Alternative Dispute Resolution, Commercial Litigation and Employment and Labor Law Committees. With a few exceptions, I’ve tried to hit at least one conference every year, often in Chicago, but sometimes in really exotic destinations like Scottsdale or Las Vegas.
The benefits of membership include well-planned, well-executed conferences, a monthly print magazine, For the Defense, which generally has focused and relevant articles, and multiple online e-newsletters. There are expert witness databases and certain substantive law committees have very active listservs. There’s also a blawg, DRI Today. The real benefit from my perspective, though, is the opportunity to belong to an (inter)national** network of thousands of practitioners who can serve as both referral sources and substantive law resources. I met some great people at the conferences and I’ve kept in touch and tried to refer business to many of them over the years.
Take a look at DRI. There’s a discounted membership for lawyers practicing 5 years or less. And if you’re interested in joining, let me know and I’ll hook you up.
*With guitar!
** Including Canada.
I know that I am not alone in feeling the inclination sometimes to dispatch a really sharply worded letter or email to my opposing counsel. I’m talking the kind of letter that says a big, snotty “so there!” so often it feels like a one-two punch twice in every paragraph. I know I’m not alone in this urge because I’ve been on the receiving end of such letters and emails from opponents whom I discovered later to be, deep down, pretty nice people.
I’ve contemplated why we feel the urge to do this and, further, why we indulge it more frequently in writing than in person or over the phone. I believe it’s a manifestation of the fight-or-flight response that is apparently part of being human. But I also believe we find it much easier to take an aggressive tone with someone when our communications are mediated by time and distance. Using myself as an example, I have at times written aggressive things in correspondence that I would never have had the gumption to say in person or over the phone.
Let me go on record saying here that, in all but a few instances, I’ve ultimately regretted taking an “uppity” tone in letters to opposing counsel. This is so true that I’m very sensitive to the tendency now. I take care not to send a message or letter that I’ve written when angry, hungry, over-caffeinated or all three, at least until I’ve given myself an interval to cool off and critically re-read what I wrote. The reason is that, on balance, I’ve vastly preferred the practice of law–and procured better results for lower fees–when I’ve tried to maintain a cordial relationship with my opposition.
It’s not always possible. Cordiality, like professional courtesy, is a two-way street. If my opponent mistreats me, I’m not going to be a doormat. And, during the course of a case there is bound to be occasions when we rankle one another. It’s unavoidable in a practice–litigation–in which we are inherently at cross-purposes. On the other hand, if I’ve stayed professional in my written communications, I find it vastly easier to get along in person.
The absolute worst situation is where I’ve not met in person or established any kind of relationship at all with my opposition other than an exchange of letters laced with snide comments. When the time comes for one of us to ask a favor (and that time always comes) and a phone conversation is required, there’s nothing worse than trying to shrug off the ill feelings that have accumulated through our letters. “How are you today” just sounds hollow. The balance of power in these circumstances is always tipped in favor of the lawyer who does not need the favor (an example of situational leverage, I assure you). I vastly prefer to be the one who’s taken the high(er) road and in the position of granting the favor than the lawyer who’s been asshole and is now on his knees begging.
A recent post on Legal Practice Pro, “When Substituting In, Beware The Pile Of Crap” warned about a risk faced by any lawyer who substitutes into a case in place of another lawyer: getting sanctioned for the unethical or bad lawyering of the predecessor. This is surely one of the bigger risks when you take over for someone else. But there are other things to think about when asked to “sub in,” particularly if there have been more than one lawyer who previously represented this client in the same matter.
I’m thinking in particular of the problem or “unworthy” client. Anytime you are asked to get involved in a case mid-stream, and there have been a succession of multiple lawyers before you who have either quit or been fired, I’m going to bet it’s the client, not the lawyers, who is the problem. Clients can be unworthy for a number of reasons: they fail or refuse to pay, or to pay within a reasonable time, they have unrealistic expectations of their lawyer, they ask their lawyer to act unethically, or some combination of these.
There is no question that many clients have legitimate reasons for seeking new counsel. Maybe the lawyer is unskilled, unethical, spread too thin, or just an ass to work with. But, if the same client could not make it work with two prior lawyers, and he or she is looking for a third, or a fourth . . . I say an alarm should sound: beware.
If you hear but cannot heed the alarm, and find yourself in the position of lawyer #3 (or 4 or 5 . . .), there are a couple of things you can do to reduce the risk that your engagement will end badly. First, learn and know the file before the substitution is signed and you take over. This can and arguably should include a heart-to-heart conversation with your predecessor(s). As uncomfortable as this can be, it’s worth the effort. Second, get a healthy retainer up front (assuming the matter is not a pure contingency fee case). Most important, though, take the time to have an in-depth conversation with your new client and pay particular attention to whether his or her expectations about your involvement and the outcome of the case are realistic. Unless your predecessors were first class idiots, avoid making promises or representations to the effect that you can guarantee a better outcome. Because you simply can’t.
I came across this post on the Lawyerist on the question whether good legal writing is inherited or developed. Putting aside that debate (the answer is both, by the way), it occurred to me that there are two steps that mediocre legal writers can take to immediately improve their writing.
There are actually three steps. The first is to realize your legal writing needs help and care enough to try to improve it. There are lots of advocates who slog through an entire career filing nearly incomprehensible briefs. Don’t be that lawyer. Take pride in your product. The fact you have read this far, rather than clicking on to something more compelling, means you are at least curious, or you just got an Apple and haven’t figured out how to navigate away from this page.
The first sure-fire way to improve your legal writing is to strive to use an active rather than a passive voice. It’s ironic that I spent several (ok 6, but who’s counting) years getting a degree in Literature-Writing from a really solid university, but it wasn’t until I was a staff member on Law Review that I truly began to understand the importance of active voice. If you missed the special torture that is editing a legal journal, or were otherwise never trained to write in active versus passive voice, I’ll provide a very easy example to illustrate the difference. Using passive voice, a lawyer might construct a sentence that reads: A man, woman and two children were shot by the defendant. Contrast that sentence with one written using active voice: The defendant shot a man, woman and two children.
See? Simplest thing in the world. But, even those of us who generally strive to use active voice occasionally fall into passive voice. The key is to recognize when you’re doing it and decide whether the sentence you’ve created could be improved by changing the voice.
The second way to immediately improve your legal writing is equally simple. Pare back the number of words you use to say what you’re trying to say. This was something my mentor taught me when I was a baby lawyer and I’ve generally tried to adhere to the principle, at least when writing to a court or opposing counsel. Basically, every word in any sentence should be necessary. Nothing extraneous. This will automatically take care of the tendency to include “herein” and other pointless words. It also forces the writer, you, to think about what you’re trying to say and how to say it in the clearest way possible. Judges and clerks appreciate clarity.
Now. This second “way to immediately improve your legal writing” is not a rule. It’s just an approach. And, it’s an approach I freely disregard when I want to emphasize something through repetition or diction (word choice). Hell, I often write entire paragraphs in the passive voice and include a lot of extra words. But, when I do it, I do it purposely, usually for effect. Otherwise, I strive to write clean, spare, Hemingway-like sentences, in the active voice, as free as possible of legalese.* (*Ok, I’ll admit an affinity for ancient latin phrases like sua sponte, ab initio, inter alia. I know that writers who know what they’re talking about, as opposed to armchair poseurs (who me?), have zero tolerance for latin phrases. If I give in to the urge to use them in an early draft, I almost always delete them.)
There. If you struggle with your legal writing, try these two suggestions. I guarantee you’ll see results.
https://youtu.be/fgIBG8q1Gjc
In this clip from A Few Good Men, two Marines are on trial for a murder on their training base. The Marines’ defense is that they were ordered by officers to give the decedent, a fellow Marine, a “Code Red,” which is a violent training “tool” used to bring errant Marines in line. The decedent was killed during the performance of the Code Red.
The prosecution (played here by Kevin Bacon) wants to poke holes in the whole notion of a Code Red. When another Marine from the same unit is on the stand, Bacon cross-examines him with two books, The Marine Outline for Recruit Training, and the Standard Operating Procedure applicable to his unit. Bacon elicits admissions that the term Code Red does not appear anywhere in either manual, thus making it seem like something the defense has cooked up or exaggerated.
The defense (played by Tom Cruise) deftly resuscitates his witness by using the same Standard Operating Procedure and asking the witness to locate where in the manual it explains where the mess hall is located. Of course the manual makes no reference to the mess hall, either, crisply illustrating the fallacy behind the argument that a Code Red must be a fiction if not officially recognized in the Marine training manuals.
Oh, and sorry if this contained a spoiler. The movie has only been out for like 25 years.
On June 25th, the California Supreme Court issued an opinion (Coito v. Superior Court) that settles the question whether witness interviews by an investigator must be revealed during pretrial discovery. To put the opinion in perspective, I’ll use an example from the employment litigation world.
Suppose an EMPLOYEE sues her EMPLOYER claiming that he/she was the victim of sexual harassment by a supervisor. EMPLOYER hires an attorney who, in the course of preparing the EMPLOYER’s defense, hires a private INVESTIGATOR to interview certain co-workers who may have knowledge of facts suggesting the EMPLOYEE is fabricating the claim. The question addressed in the Coito case was whether EMPLOYER’s attorney could be (1) compelled to give up the recorded statement obtained by the INVESTIGATOR; and/or (2) compelled to identify the co-workers that the INVESTIGATOR interviewed.
The Supreme Court held that the recorded statement itself is entitled to at least qualified work product protection. This means that, if EMPLOYER’s attorney establishes that disclosure of the recorded statement would reveal the attorney’s “impressions, conclusions, opinions, or legal research or theories,” EMPLOYER’s attorney cannot be compelled to share the statement. If the EMPLOYER’s attorney cannot make this showing, then the statement is still protected from disclosure unless the EMPLOYEE’s attorney can show he/she will be “unfairly prejudiced” in preparing EMPLOYEE’s claim without having the statement.
As to the names of witnesses interviewed, the Supreme Court held that this information is only protected if EMPLOYER’s attorney persuades a court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in EMPLOYEE’s attorney taking undue advantage of the attorney’s industry or efforts (qualified privilege).
Like many business books, the Attorney entry into Michael Gerber’s E-Myth series is substantively less revolutionary than it sounds. But, it contains advice which, if followed, can be transformative.
What is an E-Myth Attorney? “In short, the E-Myth says that most attorneys don’t own a true business–most own a job disguised as a legal practice. They’re doing it, doing it, doing it, hoping like hell to get some time off, but never figuring out how to get their business to run without them. And if your business doesn’t run well without you, what happens when you can’t be in two places at once? Ultimately, your practice will fail.” (From the Preface, xvii.)
The book is largely about transforming lawyers’ approach to their practices, so they think more like entrepreneurs. There seems to be a cherished, romantic view that professionals, like doctors and lawyers, should somehow be above treating their practice as a business. As if being called to the priesthood, one is called to the practice of law, and lawyers should avoid transforming this calling into a profitable enterprise. I read blog posts and commentary that frown upon the notion that lawyers should build their law practice like a business. That thinking is noble and all, until it comes time to pay off student loans or put a child through college. Though we constantly confront media reports to the contrary, I’ve argued that there’s nothing mutually exclusive about being a highly ethical professional, but also thinking like a business person. This is exactly the premise of The E-Myth Attorney.
How should a lawyer think more like an entrepreneur? The E-Myth authors focus heavily on the development of systems, ultimately a “system of systems.” It’s not complicated. Using the fantastic success of McDonald’s as a case study, the book discusses how that company “needed to turn pimply-faced, ADD, teenaged kids into productive workers in charge of multimillion dollar franchises.” (64) How did they do it? By developing a system for performing every task of the business which is imparted through meticulous training to every “pimply-faced, ADD” employee. Figure out how to make the perfect hamburger or french fry, and train every employee to do it that way every time. Starbucks uses the same philosophy, so I know a Grande nonfat latte in Toledo, Ohio or Montecito will taste just like it does in downtown Los Angeles.
Of course lawyers don’t make burgers, fries or lattes. But much of the nuts and bolts of what we do–at least those parts that do not require our active thinking and involvement–are not too dissimilar from making burgers and fries in the sense of repeatability. For example, a law practice that caters to individual clients, such as estate planning or family law, should develop a system for client intake, information and file management, calendaring and billing. These aspects are required for every client, every case. Most intelligent law practices already have systematic procedures for these tasks. But there are other aspects of the practice that are capable of systematization, but which we tend to shun or put off systematizing. Not only should we develop and use form files (they benefit attorneys and clients), but forms should be organized in a way that provides instantaneous access. A practice which sees the same or similar claims or defenses over and over should have form discovery which goes out in every such case and which can be quickly tailored to fit unique or individual facts or claims. Systematizing the familiar and repeatable parts of our practice frees us to direct our minds and attention away from the mundane, and toward that for which each of us are uniquely, and expensively, trained.
The book encourages attorneys to develop a manual about every element of the practice which can be given to a new employee. Without this, the authors argue, the departure of a staff member becomes the kind of catastrophic event from which it takes months to recover. And, the authors touch upon other points, including the notion of being selective in accepting clients, alternative billing arrangements, managing time and alternative marketing strategies.
But, for me, the E-Myth is ultimately about appreciating process. I would argue that actively utilizing process and developing systems won’t just make our law practices more profitable and tolerable (what, take a vacation?!?), but it can help us do a better job as advocates. I’ve seen the beauty of process first-hand, as my long time mentor is nearly obsessed with developing repeatable procedures for everything from answering an email from a client (must be the same day even if a substantive response is not immediately possible), to maintaining discovery notebooks for every case into which are gathered discovery, responses, correspondence about discovery and matrices of document productions in a single place. I’ll confess that, after nearly two decades of trying to follow these procedures, it’s only now that I recognize that attention to process should appeal to everyone, not just the anal-retentive members of our profession. It will make our practice better and our life easier.
One of those absolutely crucial lessons most law schools don’t teach, but which you need to know if you’re going to appear in court, is the importance of making nice with the courtroom staff. A lawyer’s rapport with members of the courtroom staff–the clerk, the bailiff (or courtroom assistant), the court reporter and the research attorney(s)–can have a significant impact on how the lawyer is viewed and treated by the judge.
Obvious? Sure. But it’s not always a two-way street. Practicing in urban courts, we frequently encounter clerks who are (or believe themselves to be) overworked, underpaid and underappreciated, or just plain nasty. I struggled sometimes when I was a brand new snot-nosed punk of a lawyer and I was trying to get something scheduled or filed and it didn’t fit with the clerk’s vision of the world. Because I was brand new and terribly snot-nosed, I naively thought it was just a matter of getting the court clerk to see things my way. Being snot-nosed, I wasn’t always patient and respectful when things didn’t go my way.
I like to think I’m wiser now. At least I realize that I was coming at it all wrong. I know now that I’m a visitor in the clerk’s domain. I’m the one needing relief, or a favor, or just to stay on good terms with the judge. With years, I’ve also learned that jurors frequently take their cue from the way the judge treats the lawyers. If the judge is impatient or frustrated with one of the lawyers in a trial, jurors tend not to like or trust that lawyer. For better or worse, the courtroom staff–and the judge’s clerk in particular–often have the judge’s ear. If I mistreat the clerk (even slightly or accidentally) and that fact filters back to the judge, it can haunt me throughout the case, through trial and, potentially, prejudice my client. Since I might never get a chance to rectify the situation, I might get a raw deal with that judge for years to come.
So I do the smart thing. I mind my P’s and Q’s when it comes to the courtroom staff.
