(323) 652-9451 - LA(628) 230-6920 - SFO
(805) 845-1752 - SBA
(323) 652-9451 - LAEver found yourself in that situation where you are not only losing an argument or motion, but it seems mysteriously like the judge is bent on preventing you from making a decent record of your position?
In Litigation, the wise Professor McElhaney identifies games judges commonly play with attorneys in the interest of preventing them from making a record which can be used to challenge the ruling on appeal. He writes, “If [the judge] can force lawyers to waive objections or forget to make offers of proof . . . it will improve [the judge’s] batting average with the court of appeals.” (p.294) Here are a few such games:
1. Cutting off, under the guise of preventing speaking objections, any argument or objection.
2. Refusing to permit offers of proof at the time an objection is sustained; requiring counsel to wait until the next recess or next day of trial, when they’re likely to forget.
3. Insisting that exhibits be offered and admitted only at the end of the entire trial. This “forces lawyers to waive most of their evidentiary objections about exhibits. At the end of trial they are thinking about their final arguments, not about foundations or rulings.” (p.295)
4. Making “weasel” rulings on evidentiary objections: “I’ll let it in for what it’s worth.”
5. Making noncommittal rulings. “I’ve heard enough, let’s proceed.” Or, “All right, I understand your positions; let’s move along.” These aren’t rulings and, regardless what happens next (i.e., the objected-to question is answered and/or the jury hears the evidence), it will be all but impossible for an appellate court to identify an error, since the judge shirked her responsibility to make a ruling.
Recognizing your judge is playing one of these games will help you to maintain your resolve to make an effective record. Oh, and if you’re in a California state court, be sure to order and pay for that court reporter, otherwise you’re not going to be making a “record” at all.
There is the temptation, it’s almost primal, to be derisive, if not outright mean, when cross-examining a witness who has lied in the past or is lying on the stand. Even if it’s only theatrical, to provide an example to the jury how they should regard the witness with suspicion or contempt, it seems almost natural to treat her with disgust.
But it’s important to bear in mind that, even if the substance of the cross-examination establishes the witness is a liar or unsavory individual, the jury might not reward an examining lawyer–or his client–if he crosses the line. The real challenge, however, comes when litigating a case on the road, in a venue whose culture draws “the line” of civility differently than an attorney’s home court. I’m thinking here about an experience my colleague had some years back when he (a Los Angeles lawyer) tried a civil case in Hawaii.
I’ve visited Hawaii a few times, but never had an opportunity to conduct business of any kind beyond securing a reservation for dinner or a scuba dive. Frankly, I’ve never given a thought about how Hawaiian citizens would receive a cross-examination of a witness differently than someone from Los Angeles. But it turns out that they don’t cotton well to a lawyer who takes a harsh tone to a witness during examination. This became clear to my colleague (this is hearsay, of course, I wasn’t there) after he cross-examined an important witness using a less-than-gentle tone. Apparently it was clear to everyone in the courtroom that the jurors did not react well as the witness was being subjected to a tone of questioning we Californians might consider perfectly appropriate.
That night, in preparation for the following day of testimony, it was decided that our local counsel, a native Hawaiian, would handle the cross-examination of the next adverse witness. I am told the contrast between the his tone during cross-examination, gentle, less confrontational, like “a knife cutting through heated butter,” and my colleague’s examination the previous day, was palpable. Let me make clear that my colleague’s cross was not over the top at all,† just consistent with how we would take such a witness here in Los Angeles. The difference was simply that the Hawaiian jurors do not appreciate the kind of confrontational tone we might employ when addressing a witness in cross-examination.
This highlights a concern we should always have when litigating, or even transacting any king of business, in a venue that is culturally different from our own. When faced with a trial in a culturally unfamiliar venue, I would always recommend involving local counsel, if only to advise about these kinds of cultural differences.
†In fact, it was not a “temper” or anger issue, at all. The title of this post is probably an unfair misnomer.
“In 1999, two Cornell psychologists—David Dunning and Justin Kruger—conducted a series of studies showing that unskillful or unknowledgeable people (1) often think they are quite skillful or knowledgeable, (2) can’t recognize genuine skill in others, (3) uniformly fail to recognize the extremity of their own inadequacy, and (4) can recognize and acknowledge their own previous unskillfulness only after highly effective training in the skill.”
I agree with Garner that lawyers often suck as writers (my term, not his). There are exceptions. Most appellate specialists I know are pretty handy with a pen (yes, Ben Shatz, I mean you). But I would say most legal documents, briefs, letters, agreements that come across my desk are worth about a “C.” Considering what these lawyer-writers are paid for “C”-quality writing, they’ve really earned an “F.”
One point Garner makes that rings true concerns collaborative writing. Almost any lawyer who works at a law firm, large or small, has to contend at some point with another lawyer who insists that certain edits be incorporated into the final product. Even solo practitioners are not immune, as clients can rightfully insist on edits. Garner makes this point about this kind of “forced” collaboration:
“Sometimes, I’m told, a brilliant legal writer will be asked to incorporate a sentence or two, unchanged, written by an inept one. It’s a bad feeling. How would the pianist Vladimir Horowitz feel about inserting a 30-second sound clip into one of his recordings? A sound clip played by a pianist who had hardly progressed beyond “Chopsticks”? It must feel awful.”
Lest you get confused, let me say here that (1) I don’t consider myself a “brilliant legal writer,” and (2) I don’t equate my skills (in anything) with Vladimir Horowitz. But Garner’s point is well-taken, even for a middling writer like me. My mentor about whom I often speak is actually a really great writer, so his input is almost always an improvement. But over the years I’ve been forced to incorporate some real dreck into briefs or letters.
If you’re a junior lawyer and the edits come from a senior partner, or your client has suggestions, you may be powerless to argue. Don’t sacrifice your future over an awkward and unnecessary edit.
But you can also learn from the forced-edit experience, because it affords an opportunity to evaluate why you write as you do, and why you don’t think an edit improves the product. One lawyer with whom I worked for several years was only a couple of years senior to me, but I really admired his legal reasoning skills. He also had a tremendous grasp of the case-law surrounding the issues with which we routinely dealt (automotive product liability). But his writing was vomit. It was not that he couldn’t write–it was that he didn’t know how or when to stop writing. He was verbose and insisted on including every possible quote, from every possible case, to illustrate his point, without any regard for the judge and clerks. Fortunately, while he was senior to me, he was not so senior that I was powerless to re-edit his edits, which I did without hesitation. The final product benefited from his big brain, but I trimmed off much of the unnecessary excess. Evaluating his edits forced me to confront the question how much is enough and how much is too much.
Litigating any case is stressful business. But I had a real nail-biter some time back. It was a product liability case and my client was a small mom-and-pop outfit that supplied a component which had been materially altered, mis-installed, and ultimately caused a rather horrendous accident.
Legally, it should not have been a difficult case to defend. The problem I found myself having was grasping exactly how the alteration and mis-installation had ultimately impacted my client’s component. Any product liability lawyer will tell you this was crucial to the defense. The technical issues were pretty complex, at least for me (a philosophy major, not an electrical engineer), and no matter how hard I tried to understand, no matter how much I thought I’d finally “got it,” I would struggle anytime I tried to explain how the alteration and mis-installation had fouled up my client’s product.
In any other case, I would have relied on our technical liability experts to teach me all of the technical details I need to know. The problem here was that my client was defending the case on a shoestring budget. If we weren’t careful, this case would bankrupt his company. He insisted that he would serve as the primary expert, since he was an engineer who’d invented the component in the first place and nobody knew the technology better. The obvious issue with this was he has no cloak of independence. His testimony would be viewed by the jury as completely self-serving; his opinions suspect as such. The less obvious issue that I had with this plan was the fact that, while my client was undoubtedly a first-rate engineer, his teaching skills were less than stellar. If he couldn’t teach me, how could I expect him to educate the jury? Meanwhile, my opponent was retaining expensive, experienced testifying experts from Exponent, etc.
I typically wouldn’t hire anyone as an expert who couldn’t help me understand, since (1) my comprehension of the technical details is absolutely crucial to my ability to confront the plaintiff and her experts, both in discovery and at trial; and (2) our expert’s ability to educate someone of less-than-genius-level intelligence (i.e., me) is going to be needed in order to help the jury understand why my client can’t be liable. The importance of an expert’s ability to educate the trial lawyer, as well as the lawyer’s responsibility to conduct his/her own outside learning, is discussed by Professor McElhaney, in Litigation. He says:
“The first job for the [expert] witness is to explain everything to you [the trial lawyer]. You have to keep asking questions and demanding answers until you are satisfied. Do not just rely on the witness, either. Read as much additional literature as you have time for; it is not just background information. Learned treatises that support the witness are admissible under Rule 803(18) of the Federal Rules of Evidence.” (p.62)
Our case ultimately settled, and I breathed a deep sigh of relief, but not before spending several near-sleepless nights worrying how I was going to overcome the challenges of sufficiently understanding the technology to deal with both the plaintiff’s and defense liability experts. It was a learning experience in several ways. I learned to quickly recognize when I’m having difficulty grasping the complex technical concepts necessary to effectively defend (or build) a case. I learned that, regardless of budget constraints, it will not suffice to rely on testifying experts who, though knowledgeable in the subject matter, cannot effectively teach it to a complete novice. I learned that selection of experts is not a discussion to put off having with a client until the time for expert retention, but should be addressed at the outset, to ensure the client has an opportunity to think about how an appropriate, qualified expert can be identified and compensated, even with severe budget constraints.
A couple of posts back, I tried to address the difficulty of getting jurors to apply commonly used, but inherently ambiguous, legal terms and principles, such as “reasonable” to the facts of a particular case. For example, when the jury is instructed that a defendant is liable if he/she/it acted “unreasonably” under a set of circumstances, what are jurors supposed to do with that term?
A solution proposed by Rick Friedman and Patrick Malone, in their popular book, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability,† involved developing a set of rules or principles or standards which, when applied to the evidence of what occurred in the case, yield the conclusion that the defendant did not act reasonably (or indeed acted reasonably, depending on whether you represent the plaintiff or the defendant). In that post, I promised to follow up with some guidelines, or rules of the rules of the road. Here we go.
Rule No. 1: A rule of the road should be a requirement that the defendant do, or not do something. (22) The authors describe the basic structure as follows:
“A [type of defendant] should (or should not . . .) do [fill in relevant conduct sought to be enforced by plaintiff].” (23)
Here’s an example: “A surgeon should carefully identify what it is he/she is supposed to be cutting before commencing surgery.” Or, “An insurance claims examiner should fully, fairly and promptly evaluate and adjust a claim for coverage.”
Rule No. 2: A rule of the road should be easy for the jury to understand. (22) After all, the whole point of having rules of the road is to aid the jury in understanding an already ambiguous word or concept in a way that is favorable to your client. To illustrate this point, the authors suggest that, in the context of a physician’s alleged failure to diagnose a disease, a rule of the road can be gleaned from an internal-medicine textbook. However, the language from the textbook may be unnecessarily arcane, and a principle that jurors can easily understand may need to be refined into more accessible wording. (I realize my own wording is often inaccessible and arcane and my blog posts should probably be re-written to be easier for readers to understand. Blame all those philosophy books I read in college.)
Rule No. 3: A rule of the road should be a requirement that the defendant (or, if your client is the defendant, then the plaintiff) cannot credibly dispute. (22) Your opponent may not easily buy into the rule but, as the authors point out, “[d]isagreeing with the Rule should hurt the defense as much as or more than agreeing with it. If a doctor endorses a text as authoritative . . . he is going to look bad disagreeing with a simple, straightforward principle stated in that text.” (25-26)
Rule No. 4: A rule of the road should be a requirement the defendant has violated (or, if you represent the defendant, one he has not violated). (22) Otherwise, why would that principle or standard matter?
Rule No. 5: A rule of the road should be important enough in the context of the case that proof of its violation will significantly increase the chance of a favorable verdict. (22) “This is not like issue-spotting in law school. Your case does not get better in proportion to the number of Rules you add to your list.” (30)
The Rules of the Road approach offers a strategy to bridge the chasm that inevitably exists between broad, ambiguous legal terms and principles and the concrete evidence received by the jury during trial. As the authors note, “[w]e cannot let jurors make up their own definitions.” (15) And you certainly shouldn’t let your opponent do the defining. Developing a set of rules that adheres to the requirements above should help you avoid getting broadsided at trial.
†Citations are to the second edition.
This excerpt, though, is useful because it illustrates two points when defending a witness at deposition. First, if you can’t control your client sufficiently to prevent him or her from saying “I am God” at the wrong time, then look into another line of work. More technically, though, the clip illustrates the importance of securing a stipulation among all counsel to go “off the record,” meaning that the stenographer will no longer record testimony or colloquy. In the movie, one of the lawyers tells the reporter to stop reporting, and that seems sufficient. And I’ve found it usually is sufficient for one of the attorneys to say “off the record” or something similar. But, technically, an actual stipulation is required. See, Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guid: Fed. Civ. Pro. Before Trial (The Rutter Group 2013), §11:1567, p.11-208. If you think you’re off the record, make sure the reporter’s hands aren’t moving, or your client’s declaration of divinity, or other gaffe, could become a bone of contention in the case.
One of my great pleasures in raising my daughter is watching her encounter and struggle to make sense of the inherent ambiguities of our language. Puns are a particular favorite. She first learns to draw a picture. Then her mother suggests she’s going to draw her a bath. She gets into bed and draws up the covers. We have yet to draw a conclusion, but that’s coming. Whenever we encounter a word with multiple meanings, it is a simple matter to draw her attention back (pun intended) to the d-word.
I am not a poet, but I do delight in the elusive, liquid ambiguity inherent in language. Except, that is, when drafting (and hoping a jury will understand and follow) jury instructions. Then the indeterminate nature of our language can become an obstacle. An obstacle to understanding. An obstacle to winning.
A great example occurs when we ask jurors to apply a “reasonableness” standard. Was a driver’s operation of his vehicle reasonable? Did the doctor act reasonably when he did not order a particular diagnostic procedure? Was it reasonable for the insurance carrier to deny coverage based on the information available to it?
Whatever issues scholars raise about the “reasonableness” standard, I’m speaking now only about the difficulty in getting jurors to understand and apply such a term in deciding the outcome of my client’s case. And, because I am, yes, a lawyer, by “understand” I mean to know and use the term in a way that guarantees a verdict in my client’s favor.†
Rick Friedman and Patrick Malone, have dealt with precisely this challenge in their popular book, Rules of the Road. Of course they describe the problem far better than I do:
“For the jury, we need to define ‘reasonably prudent doctor’ and ‘reasonable basis’ . . . and all other ‘reasonables’ . . . too. We cannot let jurors make up their own definitions.” (p.15)*
But, without guidance, we know jurors will absolutely make up their own definitions. And, as Messrs. Friedman and Malone point out, they’re not likely to get this guidance from the judge or other jury instructions. It’s up to the trial lawyers to teach the jury about the meaning of reasonableness, so they’re prepared to apply the otherwise nebulous standard to the evidence of the case.
How to do this? As you can imagine from a book subtitled, “A Plaintiff Lawyer’s Guide to Proving Liability,” their methodology is presented 100% from the plaintiff’s perspective. But that doesn’t dilute the quality of their solution to the problem for a lawyer representing either a plaintiff or a defendant. Essentially, the lawyer formulates a set of “rules of the road” which are guiding principles for the conduct of a reasonable actor (i.e., doctor, insurance company, driver). By developing these “rules,” and then establishing that the defendant did not do some or all of them, it becomes possible to educate and persuade the jury to find in the plaintiff’s favor on the ultimate question whether the defendant was unreasonable and, thus, liable.
As the authors point out, the “rules of the road” for a particular case can derive from several sources, including statutes, case-law, textbooks, industry standards, articles, expert opinion and contract provisions. The most comprehensive example given in the book of a set of “rules of the road” involves the standards and principles an insurance company should adhere to when handling a claim. Here are some they list:
“4. Company must conduct a full, fair, and prompt investigation of the claim at its own expense.
5. Company must fully, fairly, and promptly evaluate and adjust the claim.
* * *
7. Company may not deny a claim or any part of a claim based upon insufficient information, speculation or biased information.
* * *
11. Company must give claimant written update on status of claim every thirty days, including a description of what is needed to finalize the claim.” (pp.16-17)
During opening statement and expert testimony, the jury learns that these principles are valid and accepted standards for an insurance company to follow when handling a claim presented by an insured. The evidence is then framed so that it is easy for jurors to see how the standards were not met. (Conversely, for the defendant, that the standard was met.) If, for example, a claims adjuster is not prompt in evaluating a claim, and does not provide regularly written updates on the status of the claim, he has violated two of the “rules of the road” for insurance claims handling. If the evidence establishes the insurer did not have sufficient information on which to base its denial of coverage, there’s another rule broken.
In closing argument, in discussing the ultimate question, i.e., whether the insurance carrier was reasonable in its handling of the plaintiff’s claim, it becomes much easier to educate the jury how, given the accepted claims handling standards they’ve heard so much about, the carrier was most certainly not reasonable and a verdict in plaintiff’s favor against the company is appropriate.
I recognize this is unfairly reductive. It is not reasonable or even possible in a 900 word blog post to do justice to a 300+ page book. But this is the goal of the book, providing a framework for trial lawyers to break down complex or undefined terms, like “reasonable” into concepts that readily guide a trier of fact into returning a favorable verdict. I plan to do a follow-up post in the future which discusses the authors’ criteria for developing “rules of the road” which apply to a particular defendant or case. Until then, stay in your lane!
†Yes, I do know there are no guarantees.
*All citations are to the second edition.
A less pessimistic view is to recognize that what makes our practice so interesting and challenging (on those occasions when it is interesting and challenging) is the fact that we are forced to take a set of imperfect facts, involving a group of imperfect actors, and turn water into wine, capitalize on the positive, downplay the negative and procure the very best result for our clients. Sometimes this means pulling a rabbit out of a hat.
Given that so much is beyond our control, it would seem to me to make all the sense in the world, at least professionally, to take steps wherever we can, flex our muscles, to influence an outcome to the greatest extent possible. In the interest of progressing beyond the general to the particular, I’m referring once again to the issue of preparation.
This time, though, my focus is on preparation for settlement discussions. I’m thinking specifically about a recent settlement conference I attended in an employment discrimination case. The case was nearing trial and this settlement conference was the parties’ one last chance to talk turkey. Because this case was pending in federal district court, there had been a pretty decent interval of time, a few months, between completion of discovery and the settlement conference (in state court, by contrast, at least in California, the parties may not complete discovery until a month or less before trial). I made the assumption that because I was immersed waist-deep in writing motions in limine and formulating trial strategy, that my opponent–an older, more seasoned lawyer–was surely equally immersed and conversant in the facts and theories of the case.
Eh . . . Not so much. While we were sequestered during the first part of the conference, the judge ultimately decided to bring all the lawyers together because he figured we might make more progress debating the merits mano a mano. It then became abundantly clear that my opponent didn’t know his case. (In hindsight, I might have been tipped off to this by the fact that he had just days before served 17 motions in limine, several of which had nothing to do–literally nothing at all to do–with the facts of our case.) Worse, not only did he not know his case, he was haughty, bombastic and steadfastly indignant about the absolute, unquestionably unquestionable merit of his client’s discrimination claims, only he had no evidentiary basis to back them up. It was kind of ridiculous, really.*
What kind of message does it send for a lawyer to be out of touch with the key facts of his client’s case so close to trial? I can tell you what kind of message it doesn’t send. It doesn’t inspire fear or grave concern. It doesn’t, and didn’t, make us rush to write a check. The case did ultimately settle, but it was a “cost of defense” settlement in the purest sense. Actually, it was a-little-less-than-half-the-cost-of-defense settlement. In other words, great outcome for my client, not such a good outcome for my opponent.
In fairness, the plaintiff didn’t have a kick ass case to start with. In fact her case sucked. And we knew it. So this story might not be the most potent example of how preparation can make a difference in settlement negotiations. But it is a cautionary tale, because counsel was so out of touch with the facts that, even if his client had had a really good case, we still wouldn’t have paid much. His lack of preparedness made his client’s case weak, regardless of the facts or evidence.
*For example: the plaintiff’s employment was governed by a collective bargaining agreement. This was no secret. The agreement had been produced and referenced repeatedly in discovery, and the fact that plaintiff’s employment was so governed constituted a major component of our defense. When given his turn during the joint session of the settlement conference to articulate his client’s position, however, almost the first words out of my opponent’s mouth was a suggestion that “this was the first he’d ever heard” about any collective bargaining agreement. Just ridiculous.
One of the earliest motions I learned to write while working as a law clerk was a motion in limine. Perhaps because of the brevity and intentionally narrow scope of these motions, the job of preparing and opposing them seems to regularly fall on young associates.
(For the benefit of readers who are unfamiliar, a motion in limine is a document which asks the court to rule on the admissibility of an item of evidence in advance of, trial and outside the presence of, the jury. One example might be a motion in limine asking the judge in an automotive product liability case to issue an order evidence that a driver was intoxicated on the grounds that the driver’s intoxication is not relevant to whether there was a defect in the vehicle that caused injury.)
The relegation of these motions to clerks or younger lawyers suggests to me that lead trial lawyers believe such motions are simple, should be straightforward or have only a minor impact on the trial. I want to argue this thinking is as mistaken as the assumption that a novelist’s craft is more complex than that of a short story writer.
Even if trial lawyers don’t see it this way (at least at first), I’ve heard many judges confirm the notion that prevailing in most trials comes down to one or two issues, or facts, or items of evidence. We’re often stuck with our good or bad facts. But to the extent one side can identify those one or two issues or facts, and devote resources to capitalizing or eliminating them from the jury’s “universe,” this can strongly impact the outcome.
Consider a couple of examples, starting with the intoxicated driver above. The defendant will want to apportion fault to a driver for causing a crash to occur in the first place. That one of the drivers was drunk makes this much easier (even if the forensic evidence suggests the driver did not cause the crash, the jury will automatically assume he did regardless of the evidence). The plaintiff, then, might want to move to exclude this evidence on relevance grounds (and potentially because it could distract the jury from the product manufacturer’s alleged fault). Success on this motion could be a game-changer for the outcome of the trial.
Another example. What if the defendant in a sexual harassment case had a history of prior complaints against him with the same employer by other women. The plaintiff will obviously view such evidence as crucial to winning her case. However, if the defendant employer, through a well-crafted motion in limine was able to keep the prior complaints out of evidence because they were factually dissimilar from the plaintiff’s complaint, this could literally “gut” the plaintiff’s case against both the alleged harasser and the employer (who could be held liable for continuing to employ the harasser following the prior complaints).
I hold the view that many lawyers do not effectively use motions in limine. They are often superficial, or thrown together and filed as an after-thought. They often file too many, diluting the importance of any individual motion in the eyes of the court. So I offer the following thoughts on how to more effectively seek (or oppose) pretrial evidentiary rulings.
Think of A Motion in Limine As A Knight, Not A Pawn. My biggest beef with the way most lawyers–on both sides of the table–use pretrial motions is the sheer volume of motions they file. In a not especially complex wrongful death case, I once had to oppose 29 separate motions in limine. And these came from the plaintiff’s firm. A really good plaintiff’s firm.
What’s wrong with too many in limine motions? The biggest problem is the burden on the court, the judge and her clerks. We all know the lawyers have to work day, night and weekends preparing for trial, but do you really want to be the one unnecessarily causing the judge and court staff to be pulling all-nighters? I don’t.
A subtly related reason not to over-file pretrial motions is that the judge and her clerks will quickly realize you’re unfocused and may (correctly?) conclude you don’t know what you’re doing. At the very least, after reading 3 or 4 frivolous in limine motions, there’s a good chance the court will give your arguments in all of the remaining motions short shrift.
Avoid the trap of viewing motions in limine as Pawns on the chess board of trial; see them instead as the Knights. This piece is the surgical bad-ass who silently eviscerates your opponent’s key pieces. In other words, leave out the true no-brainer motions, like excluding reference to insurance or settlement discussions. Look instead for opportunities to creatively shape the evidence that gets in front of the jury.
Don’t Just Crank Them Out. A major upside of being selective about pretrial motions and leaving out the kitchen sink is that it frees you, your associate and/or clerk up to prepare a real motion. You know, with citations to authorities, and even excerpts of deposition transcripts that support your position. It also frees up the judge and her staff to read and take seriously just a few well-written, properly supported arguments. They won’t be so pissed off with having to read 14 separate motions (just from one party) that they deny or put off considering the issues until they come up during the trial (which is exactly what they will do–trust me).
Meet and Confer. Regardless whether the rules of court or standing order require it, you should meet and confer, preferably in writing, before filing any motions. And be sincere in this effort, even if you believe it will be fruitless. As recently as three weeks ago my opposing counsel, in a case in which we were electronically filing documents, sent me an email inviting me to meet and confer on his anticipated pretrial motions. The problem was he sent this email quite literally 8 minutes before his office began the process of electronically filing 17 different motions in limine. It’s like a waitress who sets down a plate of bacon and eggs and asks what you’d like to order for breakfast. Don’t think I didn’t highlight this to the court. (I mean the weak meet and confer effort, not the bacon and eggs analogy.)
It Shouldn’t Be A Last Minute Exercise. I think about evidence exclusion from day one, and particularly during depositions. If I hear something in a deposition that I know I’m ultimately not going to want the jury to hear, I’ll make a note of it and go back and consult these notes when it comes time to think about pretrial evidence exclusion. While I had been, up until recently, an enemy of the dreaded deposition summary, I’ve come around and believe that preliminary thoughts about how to exclude a problem witness or keep out harmful testimony should be included in my new-and-improved deposition summary.
Again, well-planned and well-crafted motions in limine can be game-changing if they win. Hopefully, these suggestions will improve your chances of success.
This originally appeared in the Los Angeles Daily Journal.
At the risk of ridiculous understatement, all is not well in the California state court system. Last week it was reported that, over the last five years, about $1.2 billion has been taken away from our state judiciary, leading to the closure of 164 courtrooms and roughly 2,000 layoffs. In Los Angeles courts, the situation is just going to get worse. Another round of cuts are slated for June, meaning 25 percent fewer courtrooms, and the 16,000 pending personal injury cases will be divided among just three judges.
For those of us who cannot just “pack it in,” but must continue to ply our trade in this challenging environment, the question becomes how to effectively cope with these developments. The most natural response would be to choose a different forum. But federal district court is only an option when it is an option. And, while binding arbitration gives clients the chance to have their disputes heard where, when and by whom they chose, I argue this is rarely a reasonable alternative for at least two reasons. First, arbitration costs an arm and a leg, and these costs are frequently borne at the outset by just one party — usually the defendant. Second, putting one’s fate in the hands of a single decision-maker, with no possibility for review, is a bold step not to be taken lightly.
So, assuming federal court and arbitration are not viable alternatives, what can litigators do? Here are some suggestions:
Take control. The days of state court judges with the time or inclination to micromanage a case are behind us. This creates both a burden and an opportunity. If it furthers your client’s interests to take the helm and control the course of the litigation (and it usually does) and you package your plan in a way that is easy for the judge to adopt, it is possible to gain a tactical advantage.
Consider the Case Management Conference, which is often the first chance to meet the judge. Increasingly, it may be your only time with the judge before trial. Make the most of it. I’m not suggesting judges will begin to show interest in those vanilla Case Management Statement forms. But that doesn’t mean you can’t come to the conference prepared to get something done. Have an agenda and be specific. Want staggered expert disclosure deadlines? Raise it at the conference. Already having problems getting the other side to agree to deposition dates? Ask the judge to schedule them, making the dates part of the minute order. Many judges will appreciate having at least one attorney in the case who is awake at the wheel and ready to advance the ball. You will both curry favor with your judge and advance your client’s interests.
Look for early exit opportunities. This isn’t new or revolutionary. But fewer available courtrooms means it will take longer for your client’s case to reach trial. There was a period when judges aimed to push cases through within a year. This just isn’t going to be viable going forward. If an early exit by summary judgment or settlement is a possibility, pursue it earlier and save your clients the inevitable costs of languishing. Perhaps formulate a reasonable estimate of how early a summary judgment motion could be heard and reserve the hearing date right away. If you don’t, you may learn (as I did) that the court can’t hear your motion until about a week before your trial date (if then), which pretty much defeats the purpose of seeking summary judgment.
Be proactive in simplifying the case. Historically, it was not uncommon for a plaintiff to pursue every theory and keep every party initially sued in the case until the bitter end. This is not an indictment, but an observation. While ancillary theories are ultimately abandoned and unnecessary parties inevitably dismissed, the truth is they probably didn’t belong in the case to begin with and should have been omitted or “cut loose” much sooner. Simplifying the case sooner is not only the right thing to do; it will help reduce the judicial logjam.
Learn to meet and confer. We know the rules of civil procedure require us to demonstrate a good faith effort to meet and confer with opponents before filing discovery motions. Regardless whether we took that obligation seriously in the past, there is no question we must be sincere in our efforts to informally resolve discovery disputes now, since we’re unlikely to get rapid, if any, relief through judicial intervention. Meeting and conferring means earnestly trying to solve a problem, not just posturing.
Manage client expectations. Clients may have wildly different expectations about how a case will progress toward trial. To the extent these expectations may be unreasonable, based on another venue or a different era, take steps to ensure they are in line with the current environment. It is our court system, and not your practice, that is in crisis. Make sure your clients understand this.
Keep abreast. One major complaint cited in a recent Law360 article was the situation of showing up for a firm trial date only to learn it has been continued for weeks or months. We all know how disruptive trial preparation can be, not only for businesses, but also for individual clients. Contacting the clerk as a trial date approaches can often (though not always) yield information that helps reduce the surprise and attendant costs when the trial has been continued.
Is a court action really necessary? Pre-suit settlement has always been an option, but not always one taken seriously by lawyers or their clients. The current judicial budget crisis should change that. Not only will it take longer to get a case to trial, but the costs of getting there — from rising routine filing fees to optional, party-funded court reporters — are rapidly increasing. Where parties might have historically elected to proceed straight to litigation solely to enhance bargaining power or demonstrate resolve, it makes much more sense in the current environment for every party to thoroughly explore settlement before filing a complaint or refusing to further negotiate.
It is not inconceivable that more state general fund money will be allocated to the judiciary to alleviate the courtroom closures and staff layoffs. Until then, however, it falls on practitioners to do what we can to protect our clients during this challenging time. Hopefully these suggestions will help.
It’s amazing how I rushed into law school with no real idea what I would be doing every day of my working life. I had an inkling I would be on the litigation side of things (though I’m not even sure I knew what the word “litigation” meant). Like anyone whose imagination was nourished on a steady diet of television, I thought being a lawyer meant my days would be spent emasculating evil, dishonest witnesses in a packed, captivated courtroom. That is, when I wasn’t driving my Porsche . . . or playing golf . . . or having a power lunch at the Club . . . or whatever.
Imagine my surprise when I graduated, passed the bar and reality set in! In truth, I figured out long before graduation that most days I would be the one getting emasculated, chained to a desk, eating my power lunch at the downtown YMCA. (Don’t laugh. . . the YMCA is a Club, isn’t it?)
What’s interesting, though, is not that those golden trial-lawyer-as-cross-exam-Ninja moments are so few and far between, but rather how varied my job description can actually be from day-to-day. While I do spend the majority of my working hours litigating (i.e., complaining, pleading, advising, calendaring, moving, appearing, arguing, deposing, drafting, researching, responding, conferencing, serving, trying, introducing, direct examining, cross-examining, re-direct examining, re-cross examining, filing, noticing, negotiating, appealing, taxing, counseling, averring, answering, BILLING, reviewing, revising, disclosing, amending, second-amending, designating, counter-designating, etc.), it is surprising how much of my working day I actually spend doing none of these things.
What else do I do? It depends on the client. But in some ways I’ve come to think of it as a service as important (if less lucrative) as any of the -ing activities I listed above: I act as a Resource to my clients. More specifically, as a lawyer I gain unparalleled backstage access into my client’s “kitchen” (not just restaurant clients, either). And it turns out that what they often need is not a hired gun to fight legal battles, but rather an objective sounding board or a referral source. This part of the job is particularly rewarding with new or emerging companies because I’m bringing value by my involvement that a “hired gun” litigator just can’t bring. The more intimately I get to know a client’s business, the more interesting all aspects of my job become.
I take great care when I refer clients or contacts to other professionals. Every referral reflects ultimately on me, and I feel I have a stake in the outcome. So, while I might explore and involve myself in a variety of networks for the specific purpose of making contacts and business referral sources, I take pride that any decision I make to connect a client or contact with a professional is informed by the kind of cold, objective judgment I would use in selecting a doctor to treat me or my family.
When we take our role as a resource to our clients as seriously as we take the role of practicing lawyer we create the possibility of going past a mere attorney-client relationship. We partner. We jointly venture. We approach the most coveted role any lawyer can ever hope for: the Trusted Advisor.
In his chapter on Jury Selection, Thomas Mauet suggests we put ourselves in the shoes of the prospective jurors in order to identify with them and maximize the opportunities that come from voir dire. This is what he says:
“Put yourself in the shoes of a prospective juror. You recently received your notice to appear for jury duty. This morning you arrived at the courthouse, waited in the jury room most of the morning, read a pamphlet about jury service, and were finally called, with about 30 other persons, and brought to a courtroom. You just entered the courtroom and sat down. You can see the judge on the bench, and various other persons in the front of the courtroom. And then you wait some more.”(Fundamentals of Trial Techniques, (3d. ed.) p.23.)
Sadly, during all of the years I have reported for jury duty, I’ve never even made it into a courtroom as a prospective juror. So for now I have to try to imagine what goes through the minds of prospective jurors as they get seated and are questioned by the judge and the attorneys. Mauet helps us along:
“Most jurors have little or no experience in the courtroom. They are in the midst of strangers. They are apprehensive and intimidated. They are worried that their ignorance about the jury trial system will show. They are concerned about their life’s secrets being exposed.” (Id.)
It would never have occurred to me that prospective jurors worry about secrets being exposed. If I reflect on it, though, some people are very uncomfortable revealing, even to one other person, the most basic information, such as their occupation, education level, etc. Of course, voir dire questions often get more personal, including your past experience with the civil or criminal justice system, whether you’ve been a victim or sued. Knowing most of the jurors are uncomfortable, and some even petrified, what’s a trial lawyer to do? Mauet suggests we “turn it around.”
“Change from being a stranger to being the jurors’ friend. If they feel intimidated, reassure them. If they are among strangers, make them feel comfortable. If they are worried about their ignorance, help them become informed. If they are concerned that secrets in their past will be exposed, reassure them. In short, the jury selection process is an opportunity for a trial lawyer to become the jurors’ friend and guide by helping them understand the trial system, by reassuring that they do belong here, and by letting hem know that their participation is important to you and your party.” (Id.)
Making strangers feel comfortable, reassuring them that publicly sharing their personal and family history is necessary and appropriate, is a pretty tall order. Is it possible? In some cases probably not. But Mauet’s point is well-taken. Recognizing the feelings and emotions of potential jurors, and attempting to connect with them in a way that is both human and humane, is surely the first step toward gaining their trust.
