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(323) 652-9451 - LAA great post on Associate’s Mind, entitled “Millennial Jurors: Entertain Us,” discusses the challenges facing trial lawyers trying to communicate with Gen-Y jurors. In addition to prognostications about how these young adults can’t sit still and pay attention for the hours needed to take in information during a jury trial (how will they check their smartphones?!?), the post (which itself references an article in the Texas Bar Journal) notes how information needs to be presented to Millennial jurors in shorter visual “bites,” as opposed to purely verbal, format. Better make sure it’s not boring, either.
Undoubtedly a cottage industry will sprout from within the ranks of jury consultants and trial support firms of “Millennial specialists” who claim to know the secret to engaging Gen-Y jurors. But I don’t think the shorter attention span, and increased need for engaging visual, as well as verbal, content is really that new or a bad thing at all. I’ve written elsewhere how trials are too long and taxing on jurors’ minds and attention spans. Anyone trying cases in the past 25 or 30 years knows that a purely verbal presentation–without visual aids (even rudimentary visual aids) is risky, even if the subject matter is pretty sexy.
I think that, while the (alleged) changes in attention span, and increased appetite for visual stipulation seen in Gen-Y (and presumably later) generations might be lamented by parents, educators, psychologists, novelists (and other print media writers) and others, it should not necessarily be lamented by those in the business of trying cases. Rather, like any development, it should be prepared for and embraced. It is true that evidence will need to be presented differently if it’s going to get through to Millennial jurors, and this will require some reflection and research. (Perhaps more in-depth research than was undertaken in developing the Texas Bar Journal article, which was simply a survey of law school students.) And, probably, some trial and error.
Turning the coin over, though, there will surely be evidence that only the younger generations will “get,” at least at first. For example, while it’s commonplace now for defense lawyers to scour the internet for impeachment evidence, there are older jurors who don’t surf the internet and don’t understand “The Facebook,” Twitter or LinkedIn. Cases involving new media, reality television and certain progressive technologies might be completely foreign to more senior jurors but completely familiar to members of Gen-Y. (OK, I’m a little biased because I practice in Los Angeles, where every case will someday be “pre-tried” on TMZ). In short, there should be a place at the table for every kind of juror. The challenge to the trial lawyer is to engage, as best as possible, with jurors of every generation, not just the over-30 demographic.
We’ve got to raise our game, or get out of the way.
Yesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information. I just need point out a single exception to this view: discovery through depositions.
Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence. But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).
Certainly depositions should not be an exercise in free association thinking. Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish. But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail. I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.” When it comes to depositions, I disagree. Don’t be afraid to “fish.”
The most important skill in taking depositions is not asking clever questions, but listening. Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic. Why is it a sensitive topic? We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully. This take patience and persistence.
This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective. But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way. The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer. That filter is generally missing in a deposition.
Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically. While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer. In other words, you have to dig deep to find the gold!
One of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve. This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do. I think also that, as a young associate, I was always looking for ways to maximized billing opportunities. Actual strategy rarely entered the equation.
I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.” Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying. He was absolutely right.
My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun. As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).
I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter. Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client. There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result. So every task, not just discovery, needs to be calculated to advance the ball.
On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery. In fact, quite the opposite is often true. An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.
My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client. If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case. I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense. The same holds true, only opposite, if I’m representing a defendant. This is elementary, but I’ve seen a lot of discovery (and written some over the years) that strayed pretty far off topic.
If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response. Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it. If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?
This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience. By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.
I ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both. Karen draws on her experience trying a case against a really poor defense lawyer. She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”
I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial. “Challenged” lawyers make our job harder–and the case more costly–from day one. They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution). They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances. It seems like they’re never available to address anything substantively. They fight battles over the wrong things–again wasting time. They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.
We all started somewhere. I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes). But the goal should be to improve and try to learn from mistakes, not to keep making them.
Lawyering is like tennis in that the quality of your opponent brings out the best in your game. I’ll take a Federer or Nadal any day.
An article in the Wall Street Journal Tuesday discussing the Rajat Gupta insider trading trial in NYC pointed out that the judge and the accused’s defense attorney, who are apparently longtime friends, have been cracking jokes throughout trial in and outside the presence of the jury. The article posed the question, but did not weigh in, on whether humor in the courtroom is a good idea? Well, when it’s the judge making the wisecracks there’s not a lot counsel can do, so why not laugh along. But when, if ever, is it appropriate for counsel to inject levity into the courtroom?
I think some humor can serve two useful purposes. First: it breaks the tension that naturally develops in a courtroom, where freedom, money, reputation or all three are at stake. Second, depending on timing, humor can break the monotony and actually “wake up” the proceedings a bit. The problem is, the parties, their lawyers, the judge, the clerk, bailiff, court reporter, observers and, most importantly, the jury, may find different things funny (or not so funny). An intentional joke can fall flat or, worse, offend. That said, here are my thoughts on the uses of humor in the courtroom:
1. It’s not appropriate when it’s not appropriate. This presumes we all possess at least some judgment and, let’s face it, some of us don’t. So, by way of illustration, when the subject matter of the trial is catastrophic injury (burn victims, etc.) or heinous crimes (rape, murder, etc.), there’s a 99.9% or better likelihood that any joke is going to offend someone. So steer clear. Don’t even try it. There’s probably nothing funny to Rajat Gupta about going to jail and facing jail time, yet it’s his own lawyer making the jokes, so presumably it’s ok. (“What, I’m paying you $1,000 an hour and you’re making jokes?”)
2. Take your cue from the judge. The judge always sets the tone of the courtroom. If the judge makes a funny, then humor may be acceptable in his or her courtroom. Pay attention to whether the judge allows humor when jurors are present. Even if laughter is permitted outside the presence of the jurors, a joke could be sanctionable conduct if made when there are jurors present, particularly if your opponent or his/her client is the butt of the joke.
3. Know when to stop. Here, again, we need to exercise our judgment and some of us don’t have any. So, to be safe, stop while you’re ahead. If something you said elicits a chuckle, leave it there. Because I’ve never been great at timing or telling jokes, I would never intentionally try to be funny in the courtroom. The stakes are too high and I don’t want to risk it. When I have been funny, however, it has always been accidental and usually something self-depreciating I’ve said or done. People seem to appreciate humility.
So . . . in my view, using humor in the courtroom is a mixed bag. I almost always appreciate it when the judge says something to break the tension, but I’m loath to try it myself. What do you think?
This excerpt from Atticus Finch’s cross-examination of Mayella in To Kill A Mockingbird highlights why you might want to prepare your witness for a potentially challenging cross-examination.
[youtube https://www.youtube.com/watch?v=44TG_H_oY2E?rel=0&w=560&h=315]
In the last post I talked about the concept of a “managerial” judge. Some have suggested that having an overly involved or controlling judge may not be a good thing. Having litigated several cases before micro-managing judges over the years, I’ve come to believe that, in most instances, my clients will tend to benefit from our case being assigned to a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution.” Here’s why.
First, parties and lawyers involved in a civil dispute need someone to take charge and crack a whip. Picture, if you will, a giant sandbox filled with sand toys. In each corner there is a 3 year-old who is told by his/her parent to “do whatever it takes, but be courteous” to capture all of the sand toys. The ensuing exchange among the toddlers–admonition to “be courteous” notwithstanding–would soon turn ugly. This is what many lawsuits turn into, despite the involvement of lawyers who are reputed to be educated, ethically duty bound professionals. Without a strong, hands-on judge, a dispute over the breach of a contract will too often turn into the equivalent of a toddler sandbox fight. Even with a strong judge lawsuits frequently devolve into bare knuckle brawls. (I still have bruises.)
Second, I find that hands-on, managerial judges tend to be more consistent in their rulings than judges with a more laissez-faire style. It is much easier to plan and execute strategy when you know how your judge typically handles a particular issue. Managerial judges often issue their own set of rules regarding how they want pretrial matters handled. Get these rules and follow them religiously! You will likely remain in pretty good stead with the judge. In fact, following a managerial judge’s rules is a great way to gain an advantage over a disorganized opponent who fails to strictly follow the rules.
Finally, managerial judges tend to put a lot of energy toward settling cases. A laissez-faire judge will allow a case to take its own course and the parties to enter settlement negotiations whenever they feel the timing is right. This is almost always in the days or weeks just before trial. The problem with this approach, and the reason a managerial judge is better in my view, is that parties can save a lot of fees and costs if they are forced to explore settlement earlier. Also, when cases settle earlier it helps free the clogged courts. This, in turn, allows other cases to get to trial (or otherwise resolve) sooner, which gives judges freedom to give more individualized attention to their dockets.
Make no mistake, appearing before managerial judges can be difficult. They develop and impose their view of how the case should progress and the parties go along for the ride. On balance, however, I think there are benefits to a heavy-handed judge which outweigh the difficulties, and I’d pick one over a hands-off, laissez-faire judge any day.
In the course of researching a question about judicial discretion, I recently came across an article discussing “managerial” judges. The author, quoted below, argued that managerial judges are dangerous and something which should be discouraged, if possible. Is this fair?
The term “managerial” judge was reputedly coined in a 1982 Harvard Law Review article by Judith Resnick, entitled, ironically, Managerial Judges. She used the term to describe a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution and encourage settlement.” Thornburg, “The Managerial Judge Goes To Trial,” 44 U. Rich. L. Rev. 1261 (2010) (citing Resnick’s article).
This definition sounds neutral and constructive enough. But trial lawyers who have lived with a case presided over by a managerial-style judge know they can be difficult, unpredictable and downright scary. The key to their danger lies in the phrase “using various procedural tools.” Consider some examples. The simplest I can think of was a judge who, seeing that the parties were disinclined to seriously discuss settlement, scheduled a lengthy trial to start on December 26th, the day after Christmas. Other judges routinely withhold or time issuance of rulings to impose maximum leverage on one or both parties to come to the bargaining table.
When I was a first year lawyer I witnessed a California Superior Court judge order the entire legal staff of a Big Three automobile manufacturer to travel from Michigan to California to attend a settlement conference the next day because the judge felt the car maker was not being appropriately generous in settlement negotiations. Put yourself in the shoes of the car maker’s lawyer (my boss at the time) telling our client over the courthouse pay phone (this was in the early 90s) to round-up her colleagues, pack a bag and get to the airport!
I’ve seen and heard of other judges doing radical things with discovery or the presentation of evidence, like completely rearranging the order in which the parties presented their respective cases to the jury. This seems less calculated to pressure settlement negotiations, and more to fit the judge’s personal vision of how the case should progress.
Whatever the purpose, there is no question that, at least in Federal District Court and California civil courts (where I practice) judges possess enormous discretion to dictate, with extreme detail if they desire, how a case progresses from filing to resolution. The question is whether judges who seize this discretion and micro-manage cases are furthering or hindering justice.
In my next post, I’ll explain why I think the parties to a lawsuit actually benefit from being assigned to a judge with a managerial style.
Following my post yesterday about the California Bar’s exploration of a possible skills requirement, I was pleased to see that my alma mater, Loyola Law School, has rolled out a new “Concentration” program which, according to the Loyola Lawyer, will require students participating in the program to “participate in at least one semester-long simulation or live client experience.” The Concentrations are in Civil Litigation and Advocacy, Corporate Law, Criminal Justice, Entertainment/Media Law, Environmental Law, International and Comparative Law, Public Interest Law and Tax Law.
Nice work!
The California State Bar has apparently formed a task force to explore whether to “develop a regulatory requirement for a pre-admission practical skills training program” for new lawyers. Is this a good idea?
I think requiring a prospective new attorney to complete some kind of practical skills training is a really good idea. With some caveats.
First, the requirement shouldn’t be one-size-fits-all. In the perfect world, every prospective lawyer would get some exposure to various practices before he/she focuses, by choice or necessity, on a single area. Many of us litigators will wonder until we retire what it would have been like to practice as a transactional lawyer (and vice versa). That said, it would take a major overhaul of the American style of legal education to expose everyone to a little bit of everything. A more palatable approach would be to give prospective admittees a range of reasonable options for fulfilling the requirement.
The second caveat would be to avoid attaching a mandated proficiency level to the skills requirement. In California, at least, passing the bar examination is hard enough. Of the 4,382 people who took the California bar exam this past February, only 42 % passed and only 53% of those taking it for the first time passed. Those kind of statistics can be really discouraging to someone who invested 3 or 4 years of their life and roughly $100,000 toward a professional career. We don’t need to make the admission process more intellectually challenging.
I would argue that we do, however, owe both new practitioners and the consuming public an obligation to help ensure someone who holds a license to practice law has some basic practical skills. By the time I graduated law school and passed the bar examination in 1993, I had already “clerked” for two litigation firms. I had been exposed to depositions and court (as an observer), I had written, copied, blue-backed (remember those?), served and filed pleadings and motions. In short, I had a decent idea what courtroom lawyers did for a living. Although the early 1990s are typically remembered as a “challenging” job market for students and new admittees, most of my classmates who desired experience during the summers and their second and third years of law school found it.
From what I read and hear, the present legal job market makes the “challenging” early 1990s look almost like a “boom” period. At a time when new admittees who graduated at the top of their class from a top-tier school are struggling to find a position as an associate anywhere, it makes me believe the opportunities to gain practical experience before passing the bar examination are more limited. This will need to be addressed or our profession (and reputation) will (further)erode.
The major criticism of a skills requirement is that it will increase the cost of legal education. I fail to see the link between ensuring that bar applicants have some skills to go along with their theoretical training and higher law school cost. It may be necessary to adjust the nature of what is taught, meaning more clinical programs. Or, the solution could be training through volunteer or pro bono programs which, in addition to fulfilling the skills requirement, provides the disadvantaged with greater access to needed legal services.
Without the training I received during my two years as a “law clerk,” I still would have received training at the first firm who hired me as a lawyer. The problem now, as I see it, is that many are graduating law school, passing the bar and entering the marketplace without a job, forcing a great number of those who intend to enter private practice to open a solo practice without any skills training. These newly minted professionals will learn, eventually, by a process of trial and error, but woe to those who hire them!
