5 Secrets to Gaining Client Trust: #5 Respond and Be Present

Ok, these are actually two separate “secrets.”  Think of the extra as a bonus.  As you’ll see, however, these are related and flow from the universal truth that pretty much every client likes to think and feel that he/she/it is the only client in your professional life and the only one you care about.

The first is: Be Responsive.  Whether you communicate with your clients by telephone, email or even text messages, immediacy or ASAP is the name of the game.  Obviously, if you can take a phone call (without violating the second “secret” of this post below) that is best.  If you can’t or your client initiates contact by email, I like to follow the rule of responding within 2 hours.  If it is not possible to respond substantively within 2 hours (very often the case), I like the approach of responding with an email that (1) acknowledges receipt of the client’s communication; and (2) promises to get the answer and/or provide a substantive response within 24 hours.  The important corollary to this policy is not to forget to follow-up with the substantive response within a day.  If you can make this a pattern, and follow it, it helps to lead clients blissfully believe they are you only–or at least most important–client.

Second: Be Present.  For some reason, I find it easy to shut off the world around me when I am with my 4-year-old daughter.  I like to think I’m completely present with her.  This helps me feel like, even though I work a lot and can’t spend as much time with her as I’d like, at least the time we spend together is high quality time.

I try to apply this same principle to time spent with clients, albeit for different reasons.  It’s not that my clients are adorable now and will some day grow up and become, if not less adorable, at least less available.  Instead, I try to put myself in my client’s shoes.  Anyone who pays a few hundred dollars an hour for my time deserves my complete attention.  That’s what I would expect, and that’s what my client should expect.  This means in most instances I do not, when with a client, answer my phone, check the stock market, read and respond to email concerning other matters, or use my iPhone to check the paltry stats on my blog.  In fact, I’m not adverse to leaving my phone in the car or turning off the ringer when I know my undivided attention will be appreciated.  The only exception is when I’m with a client and there’s down time and the client starts checking his or her own email.

I’ll admit it’s challenging to apply both of these habits.  In other words, it can be hard to quickly respond to calls, emails or text messages when I’ve elected to shut off or ignore my phone to be present with a client.  But it’s important, and if practiced with care, is bound to engender client trust.

Learn More

On Timing of Contention Interrogatories

It used to be that I gave no real thought to when, in the course of a lawsuit, I would serve contention interrogatories.  Sometimes, I would serve them concurrently with my client’s answer to a complaint, just to get the discovery ball rolling.  But a couple of years ago a litigator whom I greatly respect gave me a tip I’ve found to be valuable, and which I’ll pass on here.  In a nutshell, the idea is to hold off propounding contention interrogatories, or requests for admission with corresponding interrogatories, until after completing the opposing party’s deposition.  This seems so obvious to me now that it’s hard to believe I didn’t intuitively follow the practice from the beginning.

Contention interrogatories provide an excellent roadmap to the proponents case.  If I represent a plaintiff, my contention interrogatories will ask my opponent if and how they contend I will not be able to prove any essential element of my client’s case.  They may also ask what evidence my opponent has to meet his/her/its burden of proving essential elements of an affirmative defense.  If I represent a defendant, the interrogatories ask what facts and evidence my opponent has to prove his/her/its case (or to counter my client’s affirmative defenses). From viewing these interrogatories, my opponent should be able to get a pretty good idea where the contest(s) will be in the lawsuit.

Assuming my opponent can walk and chew gum, he or she is not going to simply tender the interrogatories to his/her client, transcribe and serve the responses.  Either the attorney is going to work with his/her client to jointly draft responses, or he/she is simply going to write the responses and have the client sign a verification.  Either way, the interrogatories and responses are probably the best tool available for preparing his/her client when the time comes for deposition.

This is not to say that I do not serve any discovery before the deposition.  In fact, I think it’s important to serve a pretty comprehensive set of requests for production right at the outset.  Ideally, I’d like to have most or all of the relevant documents in-hand and reviewed prior to the deposition.  This is not always possible, but it’s a worthy goal.  I also see no problem serving discovery which asks the opposing party to identify all witnesses he/she/it believes will have knowledge of relevant facts (note that I do not limit the query to persons with knowledge of facts the opposing party “may use to support its claims or defenses” a la FRCP 26(a)(1)(A)(i)–I want to cast a broader net).  Unlike contention interrogatories, this discovery provides no roadmap whatsoever as to my client’s strategy in the case.

Anyway, I hope this finds readers thinking “hey, that’s a pretty good idea.”

Learn More

Bargain Basement-Priced Focus Groups To Help See Strengths and Weaknesses of Your Case

I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases.  They can also be useful in trying to estimate a potential adverse verdict range.  I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients.  It was only because my firm represented such clients that I was able to get this first-hand experience.

Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets.  Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.

The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend.  I’m most familiar with the mock trial exercise, so we’ll use that format.  This requires, at a minimum, a suitable space and mock jurors.  “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes.  If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate.  Suitable also means private.  While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place.  Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions.

Mock jurors–where to find them?  If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury.  This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap.  I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like.  Be prepared, not only to compensate the mock jurors for their time, but also to provide parking.  Thought should be given to providing food, assuming the exercise is going to last more than 3 hours.  It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch.

If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise.  However, you still must find jurors from somewhere, which means employees, family and friends.  This might mean biases will come into play.  While unavoidable, this biases must be “factored into” the results of the research.

If the budget makes it possible, I highly recommend involving a jury consultant.  While some research can be done without one, it will be far less focused and productive.  The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing.  Crucially, a good jury consultant will help synthesize the information gleaned from the exercise.  After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions.

To provide a concrete example of how this might work, my last mock trial  lasted one full day.  The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m.  They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire.  My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement.  Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.”  Each side then presented about one-half hour of “evidence.”  This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence.  Some evidence was presented simply as “facts to be assumed.”  Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session.  Somewhere in there we excused the mock jurors for a brief lunch break.

Most interesting and informative was the post-trial debriefing session.  Certain important facts had been purposely withheld from presentation during the mock trial.  These were then revealed incrementally.  This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations.  We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.

There are countless variations on this approach.  You can eschew the evidence presentation and simply read facts the jurors should assume.  You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received.  There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations.  The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise.  In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.

Learn More

Should Depositions Really Be A Contact Sport?

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

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

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

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

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

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

Learn More

A New Twist On An Old Way To Waive Jury Trial in California

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

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

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

Learn More

On Getting Through The Drama of A Lawsuit

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

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

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

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

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

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

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

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

Learn More


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

Why (As Your Lawyer) I Want to Meet At Your Place of Business, Not Mine

Even 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 More

Is It Ever A Good Idea to Use a Transformative Mediator?

An article in the June issue of For the Defense offers guidance on selecting the best mediator for a particular case.  Among the different styles of mediator (evaluative, facilitate, hybrid), one that is often overlooked is a style denominated as the “transformative” mediator.  Why is this style disfavored?  I decided to dig a little deeper.

According to the oracle of all truth, Wikipedia, “the transformative approach . . . takes an essentially social/communicative view of human conflict, [in which]  . . . a conflict represents first and foremost a crisis in some human interaction—an interactional crisis with a somewhat common and predictable character. Specifically, the occurrence of conflict tends to destabilize the parties’ experience of both self and other, so that the parties interact in ways that are both more vulnerable and more self-absorbed than they did before the conflict. Further, these negative dynamics often feed into each other on all sides as the parties interact, in a vicious circle that intensifies each party’s sense of weakness and self-absorption. As a result, the interaction between the parties quickly degenerates and assumes a mutually destructive, alienating, and dehumanizing character.”*

This all very Heideggerian and existential, but will it settle cases?  Well, it seems that may not be the only goal.  “Success is measured not by settlement per se but by party shifts toward personal strength, interpersonal responsiveness and constructive interaction. As parties talk together and listen to each other, they build new understandings of themselves and their situation, critically examine the possibilities, and make their own decisions. Those decisions can include settlement agreements, but no one is coerced into any decision or agreement. The outcomes are entirely in the parties’ own hands and subject to their own choices. Effective mediator practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging party deliberation and decision-making, and inter-party perspective-taking, in various ways.”*

There might be something to this.  In my experience mediating disputes that are particularly emotionally charged, attorneys can walk away quite satisfied with a clean, buttoned-up settlement, but the parties themselves come away feeling they “sold” their case too cheaply (or “bought” their peace at an unfair price).  Mediations that dispense too quickly with the “heart” of the dispute and rush into exchanging dollar figures based purely on estimates of damages or jury verdict potential can leave plaintiffs feeling like they haven’t been heard.  While a fat settlement can sound appealing, it usually won’t heal all wounds.  This is particularly true in catastrophic cases involving the loss of a loved one or legitimate sexual harassment suits where the plaintiff feels he or she was just “bought off,” or paid to shut up.

Other cases can be difficult to settle where (1) there is no real money available to fund a satisfactory settlement; or (2) there are residual questions that need answers money can’t buy (“What caused the car to catch on fire?” or “Why wasn’t he fired long ago if others complained?”)  Taking the “usual” approach, focusing purely on dollars and cents, might not get the job done.  In these circumstances, it can be very healthy and helpful for the mediator to engage in the kind of counseling approach unique to transformative mediation.  I’ve also been involved in cases (some very serious) that went away with no exchange of money where the defendant’s counsel or a knowledgeable employee took the time to explain to grieving parties exactly what happened and how it happened.  Plaintiffs may want most of all just to vent frustration or anger.  A party that feels he/she has been finally “heard” can be more reasonable, making it possible to settle an otherwise impossible case to settle.

Transformative mediators certainly are not appropriate to every dispute.  For example, when I’ve accompanied very skilled or sophisticated client representatives to mediations, they look for ways to control the negotiation process, and can be incapable of suspending the factual or legal controversy long enough to permit a wounded plaintiff simply to be heard.  They want only to drive home the point that the plaintiff is wrong and she will lose at trial.  In this environment, neither the plaintiff nor the defendant will believe their needs are being met and compromise becomes unlikely.

Citing, Bush, R. A. B., & Pope, S. G. , “Changing the quality of conflict interaction: The principles and practice of transformative mediation,” Pepperdine Dispute Resolution Law Journal, 3(1), 67-96.

Learn More

Why You Want A “Managerial” Judge

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.

Learn More

What Is A “Managerial” Judge?

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.

Learn More

What You Want To Know About Your Opposing Counsel, Part II

In addition to learning as much as I can about my opponent and the nature of his or her practice through his or her website, I also use the following resources to do more research:

4.  State Bar Information.  It’s pretty rare, but I do occasionally come up against someone who’s been disciplined, even suspended.  There are a number of reasons why a lawyer can be disciplined by the Bar, and it doesn’t always signify anything I consider relevant.  But it could, so I try to find out as much as I can.  For example, if the discipline has related to commingling client funds or failing to communicate with clients, it could mean the lawyer does not make it a priority to communicate with his or client.  This could become important later, if we get into settlement discussions and it’s critical his or her client is being kept informed of my client’s offer (or demand).  Information about Bar discipline is typically available on the State Bar website.

5.  Track record.  Does my opponent try cases?  This may not be readily apparent, but if I review the jury verdict sheets (I still use the paper kind) I can sometimes see if he or she has tried any cases in recent years and, if so, what kind of case and what was the outcome.  This information isn’t always available.  But if it is, it can be very revealing.  For example, it might show a pattern of taking meritless cases to trial and losing (or barely wining).  This becomes important when evaluating the likelihood of an actual trial later.

6.  Reported cases.  Has my opponent participated in any appeals that led to reported opinions?  Actually, Lexis and Westlaw even report cases that are not officially published, which further broadens the field.  If he or she was the sole attorney representing a party on appeal, this tells me that he or she probably has a fairly in-depth understanding of the issues and law in that kind of case.  If our new case involves the same issues, this is important information for me.

5.  Finally, I may send an email to some close colleagues and see if anyone knows or has dealt with my opponent before.  This can provide a great deal of useful insight.  One thing I’m looking for in particular is my opponent’s reputation for honesty or civility.  Is he or she someone I can trust when they promise to communicate an offer to his or her client?  Will I encounter resistance if I seek a reasonable extension or continuance?

From this information, I can generally get a decent “feel” for my opponent before I pick up the phone to call him or her and introduce myself (which I always do).  Over the years, I’ve found different information useful for different reasons.  Often, however, I know I’m going to be looking for leverage against my opponent or his or her client.  This can come from a variety of sources, including “situational leverage,” which I will discuss in future posts, such as a disinclination or financial  inability to take a case through trial.  The earlier I learn this the more I can shape my defense accordingly.

One factor to which I never give any weight, which some might find surprising: where my opponent attended law school.  I’ve encountered lawyers trained at the very best (ranked) law schools who had trouble knowing where to sign their last name, and really first rate lawyers who attended lesser ranked law schools.  I usually find experience level to be a far more telling predictor of competence in the courtroom than law school ranking.

Learn More

Follow this blog

Get every new post delivered right to your inbox.

Email address