(323) 652-9451 - LA(628) 230-6920 - SFO
(805) 845-1752 - SBA
(323) 652-9451 - LAIn 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.
Imagine spending good money, effort and frustration to obtain a judgment only to realize it will cost even more good money, effort and frustration to collect the judgment.
Sometime back I obtained a judgment on behalf of a client against a “serial” restaurateur. I say “serial” because, although he was good at partnering with the right chef, choosing a key location and creating a terrific vibe, the restaurant business is about as fickle as it gets. Inevitably, the chef quits, the location becomes unfashionable and some other joint creates a better vibe. This was the case with our defendant–let’s call him “Tony.”
As soon as we got our judgment against Tony, I recorded an abstract in every county in California, hired an investigator to profile his assets and set a judgment debtor examination. The investigator identified a couple of bank accounts, nothing else. I had to practically hire Jason Bourne to stake out Tony and serve him with the summons for the judgment debtor examination.* I did the exam (at the end of which I had the judge order Tony to give me the contents of his pockets, $128 in wrinkled bills). The judge also granted my request to levy Tony’s Omega watch and Vespa scooter.
I then started the form-and-delay-laden process of trying to levy his bank accounts. Being in the restaurant business, Tony habitually drained his checking account and had no savings. When I subpoenaed him to bring his bank records to the judgment debtor examination (a practice I HIGHLY recommend), the records revealed that Tony almost constantly maintains a negative balance . We tried a couple of times just the same, and collected less than nothing on each try.
I sat down and had a heart-to-heart with our client. Fortunately, it had not been particularly difficult or expensive to obtain the judgment. Tony had failed to make payments on a promissory note and did not contest the lawsuit, leading to a simple default judgment. The problem was, it looked like it was going to cost our client a lot to collect. Tony was not anyone’s “employee,” so garnishing his wages was not an option. He had “arrangements’ with investors who could loosely be called partners, but no partnership agreements exist, so we could not get a charging order. A till tap was another option but, again, expensive. There are ways to get to Tony** but, again, it wasn’t going to be easy or, more importantly, cheap. So, with the client, we explored a third option: patience.
Time is on our client’s side. Simple interest on a judgment accrues at a rate of 10%. Finding an investment with a constant 10% return is challenging. If Tony was not broke our client might have collected right away. But, assuming he did not immediately spend the money, could our client find an investment with a 10% return? Tony might have a bright future. He does have a knack for creating a hip vibe, which can carry a restaurant pretty far in Los Angeles. Even if he never kicks ass, though, he might in five years or so get a steady job where he collects a regular paycheck that we can garnish his wages. If it takes 10 or more years, the client simply needs to renew the judgment. It’s not immediate and it’s not sexy, but it might just get our client his money back with some decent post-judgment interest.
*Yes, I do occasionally resort to hyperbole.
**Broken kneecaps being one.
In an August 3rd profile of high-end family law practitioners Daniel Jaffe and Bruce Clemens, the Los Angeles Daily Journal quoted these lawyers as citing five important areas for litigators:
“A lawyer has to know people, know financial issues, know the law, know how to try a case and know how to settle a case. . . It seems obvious, but there are very few lawyers who have high skill levels in all five. If you don’t have all five and the other side does, your client is at a disadvantage.”
Does your lawyer have all five? I like to think I’m solid on four of them, but complex financial issues–for which an accountant would be required anyway–may not be my forte. Of course I don’t practice family law.
Learn More[youtube https://www.youtube.com/watch?v=r2EirLJqghA?rel=0&w=420&h=315]
I wrote last about credibility in the context of preserving one’s reputation for honesty. I doubt many lawyers will argue with the importance of reputation. However, at a more granular level, there are more subtle ways of losing credibility than being untruthful with the opposition, a judge or your client. I’m thinking here about the tendency in our profession to exaggerate or overuse hyperbole in correspondence, briefs or argument.
Yes, “this bag weighs a ton” is more colorful, immediate and powerful, than merely, “this bag is heavy.” But it’s a slippery slope. As I write this, however, it occurs to me that the risk may actually be less about preserving credibility, and more about simply being a better advocate. The goal in our writing and argument should be less about telling a judge, jury or opposition that a course of conduct was malicious or–another good one–heinous. Our goal should be to drive the point home using the facts themselves. Show, don’t tell, as I hear in my sleep from all those fiction workshops. Describe the facts which lead us to conclude on our own that the conduct was malicious or heinous. If done properly, you can leave out the hyperbole and adjectives entirely.*
Back to the heavy bag, saying it “weighed a ton” is more powerful than simply “heavy,” but “the bag weighed 300 lbs.” or “plaintiff could not lift the bag without assistance” is more compelling still. We trust this statement, not because someone else has concluded for us that the bag was “heavy” (a relative term), but because most of us can infer from our own weight that 300 lbs. is heavy. Describe the facts precisely and well; if the bag truly was heavy, we’ll know it.
I know when I receive a letter or a brief with hyperbole or exaggeration my first thought is not, “Wow, we’re in trouble.” Typically the opposite. This is because I know that if my client and I have something to worry about there won’t be any need to cloak the facts in fiery adjectives or other nonesense. Again, if the facts are good or bad enough, they’ll speak for themselves.
I suspect it’s because judges are so inundated with exaggeration on a daily basis that they often seem at their wits-end during law and motion calendar. There’s only so much of it one can take without growing tired and cynical. I’ve never sat as a judge, but I sometimes imagine what they must be thinking, in their black robes presiding over lawyers bickering over interrogatory responses like little children: “Somebody is really paying these people several hundred dollars an hour for this?”
Exaggeration in the courtroom is not dissimilar from crying wolf. The first time we hear a lawyer suggest a defendant was calculating or heartless it might carry some impact. But, like the gun in the first scene of a play, hyperbole and adjectives generate an expectation. If the lawyer doesn’t deliver the goods by the end of the show, the audience is going to want a refund. And they’ll deserve it.
*An exception being adjectives that are specifically drawn from applicable jury instructions. If the instruction requires the jury to conclude conduct was “malicious” to impose punitive damages, then a lawyer should use the term itself. But don’t just conclude the conduct was “malicious,” describe the conduct in such a way, with facts, that no sane person could reach any other conclusion.
Learn MoreIt is simply too easy for lawyers to quickly lose credibility within the bar and before the judiciary. It seems we’ve already lost this battle with much of the public, but within the profession I like to think we begin our careers with an undeserved presumption that most of us (at least those without the last name “Madoff”) are straight shooters. This presumption should be nurtured and guarded for the gift it truly is.
A lawyer’s individual reputation for honesty is as important, if not more important, than his or her intelligence or skill set. Why? Most of us quickly learn that if we’re out of our comfort zone skill-wise, we have choices. We can involve another, more experienced practitioner. Or we can double up on our research until we completely understand an issue or area. Skills can be improved. The same is not true for reputation. Once our reputation for honesty is placed at risk, it is nearly impossible to fix.
The easiest way to lose credibility is almost too obvious to mention: to be untruthful, even about the most trivial detail. It’s not necessary to falsify documents or manufacture evidence; a lawyer’s reputation for honesty can be ruined simply by stretching the truth when “memorializing” a telephone conversation. We hang up, I read your letter, realize you’ve mischaracterized our discussion and from that point forward I don’t trust a word you say. Worse, when my law partner mentions ten years from now that he’s got a case against you, the first thought that comes to mind, which I surely share, is that you’re not to be trusted. And just like that, you’re no longer trusted.
Being untruthful with the court is even more dangerous. Setting aside the risks of sanctions, contempt, complaints to the state bar, etc., judges have institutional memory which can follow you your entire career. Just as I’ll tell my law partner that you can’t be trusted, judges do talk, and have lunch together and, I am informed, discuss their cases and the lawyers appearing before them. Let just one judge conclude that you are a lawyer capable of lying to the bench and that alone could devalue any statement you ever make in the same courthouse or even jurisdiction.
Many lawyers believe we only have our time and intelligence to sell on the open market. I would add that neither time nor intelligence have any value at all without a reputation for honesty. Once we lose the trust of our colleagues and judges, everything about the practice of law becomes more difficult, especially winning cases and getting referrals. Don’t risk it.
Learn MoreEven in an age in which instantaneous online communications, remote access and teleconferencing have made it possible to dispense with a good deal of in-person business communications, I continue to practice in a realm which requires I spend (hopefully) quality time communicating face-to-face with my clients and their management. Clients, particularly smaller companies, want to meet and evaluate their lawyer. And they should, since I will be the “face” of the company if a given dispute is tried before a jury.
Equally important, during the investigation and discovery portions of the case, I need to meet and work closely with key management and employees, many of whom may be important witnesses. In all but the most unusual circumstances, these must be done face to face. I like to conduct as many of these meetings as possible at my client’s place of business. While I am aware of the risks that the visit of a strange lawyer to the plant, facility or office can be disruptive (frankly, we’re not really welcome anywhere . . . ), experience has taught me that in-person site visits–even if there isn’t anything at the site for me to particularly see–are useful and even preferred.
Why? First, my job in representing any company invariably requires a strong knowledge of how the industry and the business function. I can’t effectively establish an employee was fired for not doing his or her job (as opposed to discrimination or retaliation) without understanding what that job requires. I’ve found it’s much easier to learn the requirements of most jobs by watching employees in action. If there’s technology or a process involved, there is no substitute for seeing this first hand.
Second, an in-person site visit permits me to understand first hand the culture of the company. Is it a relaxed, constructive environment or a pressure cooker? Does everyone respect, or merely fear, their boss? In certain circumstances, knowing the physical make-up of the work space is important. In a sexual harassment case, for example, where the parties work in relation to one another may have significance. Finally, when the client is looking for documents, a visit to the client’s place of business can sometimes help speed the search and location of key documents, even if I am not doing the actual searching.
I know that some lawyers resist or would prefer to avoid visiting clients at their facilities, but I’m not sure why. One of the attractions of practicing law for me has always been the exposure to the inner workings of a variety of industries. I’ve had the opportunity to learn a great deal about the automotive, aviation, real estate, mortgage lending and other industries through my involvement in various cases. If you’re a curious person, the practice of law can be rewarding for this reason alone.
So, if your lawyer resists visiting you at your place of business ask him or her why. Then give me a call.
Learn MoreI used to think it was a worthy skill unique to litigators: the ability to be harsh and aggressive when it seemed appropriate in the course of representing a client (in a deposition, for instance), but turning immediately friendly and professional as soon as we’d gone off the record and there was no question or objection pending. After all, didn’t it show that, as lawyers, we were in complete control of our emotions when we could turn our temper on and off, like John McEnroe at a Wimbledon final?
I’ve come to think differently now. I just finished a deposition with a crusty older litigator and I found his penchant for blowing hot and cold disconcerting. I was not doing the questioning, but while we were on the record he would make frequent, loud outbursts at the female lawyer conducting the deposition of his client. She, too, was seasoned and seemed unfazed by his temper, though she did ask him a few times not to yell at her. When we took breaks, he would almost instantly turn cordial, asking her where she lived, about her kids, etc. She played along, as though such vacillation of temperament was the most natural thing in the world.
The rules of ethics and most judges expect lawyers on both sides of a case to treat each other with “civility.” Are loud, threatening outbursts transformed into civility just because we change from bad cop into good cop when aggressivity is no longer called for? I don’t think so. Certainly there are going to be times during a deposition, negotiation or even a hearing when zealous representation calls for us to “kick it up a notch,” and establish a line we don’t expect will be crossed. But I doubt the experienced lawyer making the loud outbursts during the deposition would have behaved the same way during a trial–even a bench trial. So, why should he behave any differently just because there’s no judge or jury present?
I’ve been guilty of this in the past, though I always found it more difficult to instantly change from nasty bad cop to friendly good cop. When our communications turned cordial, I usually felt inauthentic. At the end of a full day of this, I was invariably exhausted. I still get riled sometimes, but I try (not always successfully, I admit) to maintain civility even when I feel my opponent is being unreasonable. I suspect, though I have no evidence to back it up, that litigators would live longer, happier lives if we could just cut out the vacillation between hot and cold and just treat each other civilly all the time instead.
Learn MoreI cut my teeth as a young lawyer doing almost exclusively automotive product liability defense. What always amazed me, particularly in cases involving extreme tragedy (death, disfigurement, paralysis), was how the automobile manufacturers took these risky cases to trial–and won! How was it possible to convince a jury to look beyond the tragedy and extreme suffering, consider the evidence about the design of a crucial component, understand that evidence, and return a verdict for the manufacturer? Particularly puzzling for me was the fact that, as we neared trial, even I still did not completely understand the technology, and I was a reasonably educated person who had been living with the case for several months.
A very distinguished trial lawyer answered this question during a pretrial presentation to our client of one particularly challenging case. He said that, in his experience presenting these cases to juries (and mock juries) all across the country, then debriefing the jurors after trial, it is clear that much of the technical nuances escape most jurors. No amount of careful teaching with brilliant demonstrative exhibits can make a person with a high school education or less, who has never worked in the automotive industry and, frankly, doesn’t care much about cars at all, understand a component, and comprehend why a company chose design A over design B.
What does matter to these jurors, he said, is seeing the lengths to which the manufacturer went to understand what occurred and how the plaintiff suffered her injury. If something failed, jurors like to understand how and why it failed, and particularly why a safer alternative design wasn’t available or why the design advocated by the plaintiff’s expert wouldn’t work or would have produced the same (or even worse) result. This is why it’s so extremely expensive to take these kinds of cases to trial, particularly when it takes one or more full-fledged crash tests, using identical automobiles, to understand exactly what happened.
A corollary is that jurors appreciate learning how hard the manufacturer worked, and how carefully the component was tested, to assure that the car was as safe as possible for the driver and her passengers. To the extent this can be woven into a story, with witnesses who do not drone on for days, the chances of keeping jurors awake to hear the ending improves. I like to think this principle can be equally applied to any context in which jurors are going to be asked to evaluate highly technical evidence. It becomes less about how or why something works, and more about how much the defendant cares about learning what really happened in a given case.
Learn MoreA 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.
Learn MoreAn 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.
Learn MoreThe 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.
Learn More
