The ABA Journal reported on Friday that a Pennsylvania judge held a lawyer in contempt and increased the bond for his client when they were late for a jury trial. “We were all here at 9 a.m. for a jury trial and the defense table was empty,” said the judge, who had dismissed the prospects not long before the two arrived. “We wasted a jury panel.” The lawyer later claimed that personal problems kept him up late and the hotel failed to give him a wake-up call.

Readers can receive this in many ways. Some will say, good for the judge, he did the right thing. Others will think it’s over the top and the judge was out of line. After all, everyone has been late at one time or another. Is contempt and a $1,000 fine (which the judge ordered later) really appropriate?

I don’t know. I suspect if I was the judge the outcome would have depended on whether I was particularly irritable that morning. Not very even-handed, I know. But whether a lawyer is held in contempt for being late, or simply slapped on the wrist, the lesson we should learn from this particular Pennsylvania judge is the same: don’t be late for a jury trial. Ever. Period.

I’ll confess I’m sometimes challenged when it comes to getting somewhere on time. I make this confession so you won’t mistake me for someone who is self-righteous about his meticulous habits. But there are two events for which I take great pains to be on time. One is to catch an airplane and the other is for trial.

It’s been my experience that most judges presiding over a jury trial tend to put the interests and needs of those serving jury duty at or above his/her own. If you are before one of these judges, the quickest way to earn the judge’s scorn is to keep an impaneled jury waiting. (It doesn’t help that, when you keep the jury waiting, you’re also keeping His/Her Honor waiting as well.) In case it’s not obvious: the judge’s scorn often translates to the jury’s scorn, which you don’t want.

My mentor has always had a rule that the hotel where he stays and sets up his war room during trial must be the very closest possible hotel to the courthouse. It doesn’t matter if this is a den of filth, replete with vermin and cockroaches. He knows when he’s in trial he’s at war. There’s no time to be tied up in one of those unpredictable traffic jams. If you know you can walk to the courthouse in a reasonable amount of time, rain or shine, it’s one less thing to worry about. Worry = wasted mental energy, and mental energy is precious during trial.

If you don’t believe me, just ask Berks County, Pennsylvania Judge Stephen B. Lieberman. But leave my name out of it.

Every lawyer whose practice includes mediating civil cases is bound at some point to come face to face with the concept of a “mediator’s Proposal,” also called a “mediator’s number.”

Here’s what happens: the parties have been mediating several hours or all day and they’ve reached a stalemate. For sake of example, let’s say that the plaintiff in an employment dispute has reduced her demand to $250,000, but signaled she does not intend to negotiate further without some radical movement by the defendant. At the same time, the defendant employer’s counsel has told the mediator they do not intend to come above $150,000.

At this juncture, the mediator could adjourn the mediation, particularly if she feels the parties have been negotiating in good faith and there are legitimate, insurmountable obstacles to settlement. However, if the mediator believes both sides genuinely would like to resolve the dispute, but just can’t reach a consensus, even after considerable arm-twisting, she may offer to give a “mediator’s number” as a theoretical last-ditch attempt to reach a settlement. (I say theoretical here because most hard-working mediators will continue the process even after the mediation session has adjourned through telephone calls to the lawyers and/or corporate representatives for both sides.)

The mediator meets together with all counsel, but not the parties or corporate representatives. She gives the parties a number at which she thinks the case should settle, recognizing it is going to be less than the plaintiff demands, but more than the defendant is presently willing to offer. In the hypothetical above, the mediator might give $210,000 as her “mediator’s number.” The attorneys consider the number and either recommend to their client that they take or reject the number. Any party that is willing to accept the number advises the mediator confidentially. In this way, if only one side is willing to accept the offer, the other side is not made aware of this fact, which would surely jeopardize the willing party’s ability to credibly negotiate for a more favorable number at some later time. However, if both (all) parties confidentially accept the “mediator’s number,” she advises counsel and a settlement is reached.

I’ve heard of another version of this, in which each party confidentially tells the mediator his/her/its “bottom line” number. If the parties are within a previously agreed upon percentage or dollar amount, the mediator then discloses this spread as a “bracket” and urges the parties to find a meeting place.

I’ve never had a dispute in which the mediator gave a “mediator’s proposal” and the case did not ultimately settle at or near that number. But that doesn’t mean a “mediator’s number” is a good idea in every case. First, if you get a clear impression that the mediator is not completely impartial, then you might get a number that is skewed in favor of your opponent. It’s not always easy to tell if the mediator is biased, since part of her job is to “sit on” both sides in order to get them to come to the table. What you might interpret as evidence of bias might actually be a mediator doing a damn good job.

Second, if you and/or your client are truly entrenched in your position, and you really do not want to pay much more than you’ve offered, a “mediator’s number” could have the adverse effect of giving your opposition some undeserved false hope that her case is worth more than it reasonably should be. Until proven otherwise, I generally expect neutrals, both mediators and arbitrators, to “split the baby” in every instance. Thus, in my example above, I think it is much more likely that the mediator will conjure a number somewhere in the middle between the parties’ respective positions, than that she would give a number that is especially favorable to the defense–even if she thinks the plaintiff’s case stinks. Remember, the mediator’s job is to get the case settled, not make sure the settlement is appropriate to the facts of the case.

Finally, the possibility of a “mediator’s proposal” illustrates a larger point concerning mediation. Just as attorneys come in varying sizes, shapes and skill sets, so do mediators. It pays to be picky when selecting your mediator. Do your homework. This does not mean holding out for a mediator that is bound to be on your side. On the contrary, it can be much more important to have a mediator whose opinions your opponent (and her client) are likely to credit. But you should hold out for someone you reasonably expect will work hard to settle the case.

Because I pay attention to analytics, I know that my most popular posts are those in which I have passed on advice or comments from a judge or judge’s clerk. People apparently find and read my blog because they want to get some inside scoop from the bench, as opposed to my witty, original repartee. Best not quit my day job, I guess.

At any rate, a talented Michigan appellate specialist I know attended a recent appellate bench-bar conference and brought back some wise comments from the judges and court staff, “of which,” as Bob Marley sings, “I’ll share with you.”

1.  When Briefing the Facts.

When briefing the facts, don’t misrepresent the facts or get too argumentative. Eliminate most adjectives in the statement of facts section. Also be wary of including too many facts and dates. Dates that aren’t relevant to the issues to be decided by the appellate court are distracting and tiresome. Also bear in mind that the appellate court rarely needs to know the entire procedural history.

2. When Briefing the Law.

Briefing the law requires honesty. Do not mischaracterize the law generally or the holding or import of a particular case. Strive for economy; view the page limit as an outer limit, not a goal to reach. Another problem specific to appellate briefing is the tendency to raise too many issues. Judges complain that lawyers often fail to recognize and identify the appropriate standard of review. Judges should be treated as “generalists” who may need a primer on the law in the area and a tutorial on the industry involved. Bear in mind the “ABCs” of good brief writing: Accuracy, Brevity and Clarity. Do not attack opposing counsel in the brief.

3. When Arguing Before An Appellate Court.

The judges cited “reading from a prepared text” as among the most common errors in oral argument. Treat the argument as an opportunity for both the lawyers and the judge(s) to be educated. Do not fail to answer the questions the judge(s) actually asked. Be sensitive to “cues” from the bench as to what a judge believes the real or dispositive issue to be. Do not attack opposing counsel in oral argument. If you are lucky enough to be arguing before a state or the US Supreme Court, be prepared to answer the question, “What rule are you asking us to establish?”

There. Now go kick some appellate ass.

I recognize I’m about 3 years too late with this post. The truth, however, is that employers can be forced (or strategically choose) to reduce their workforce even outside a recession.† So, without further apology, here are my 6 steps to effecting a layoff in a way that eliminates, or at least reduces, your exposure to employment-related discrimination or retaliation claims and suits:

1. Be forewarned about the WARN Acts.  The biggest challenge for employers contemplating a “mass layoff,” plant closure, etc. can be WARN Act compliance. California employers are required to comply with the Federal WARN Act (29 U.S.C. 2101, et seq.) and the more rigorous California version (Cal. Labor Code Secs. 1400, et seq.). The specific ins and outs of what triggers Act compliance, exceptions and consequences are unbloggably‡ complicated. You should consult a knowledgeable employment lawyer* on this–no exceptions!

2. Offer severance in exchange for a release. I feel like a flight attendant describing how to use a seat belt, but I’m amazed that there are employers that do not premise a severance payment on execution of a release/waiver of claims. In order to “buy your peace,” the severance must give the employee something to which he/she is not already entitled. In other words, don’t propose the release after you’ve already agreed to pay severance. This kind of release/waiver agreement needs to comply with certain requirements, including timing and lack of ambiguity. You cannot demand the employee sign the waiver on the spot. Depending on the circumstances, you’ll need to allow the employee some time to consider the terms. Again, involve experienced employment counsel.*

3. Develop, and preserve evidence of, objective, nondiscriminatory criteria justifying both the need for the workforce reduction and why the affected employees were selected. Maintain this evidence for up to 4 years. I’m thinking here of meeting minutes, Power Point decks, etc.

4.  Review the list of affected employees. “Issue spot” each employee to evaluate the risks associated with the layoff. These include, not only risks of a claim that an individual employee was the victim of discrimination, but also that the architecture of the reduction disparately impacts a protected class. Look at age (40+), race, gender, disability and religion, FMLA leave, etc. Here, again, use knowledgeable employment counsel* to assist in this analysis.

5. Have upper level management, one or more layers removed from immediate managers and supervisors, decide who will be affected by the layoff. This helps reduce the likelihood of claims that an individual manager had a nonobjective discriminatory or retaliatory reason to select a given employee. It also strengthens the theme that the layoff was objective and necessary, as opposed to a mere “pretext” for an unlawful termination.

6. On the day of the layoff, meet separately, in-person, with each affected employee. Ideally, have an additional manager or HR representative in the room. Resist the urge to say more than necessary about the layoff. Remember that anything said to the employee, if later believed by a judge or jury, can be used against the company if a claim or litigation results. Having the second “witness” in the room reduces the likelihood or believability of a fabrication.

Good luck. Oh, and did I mention the importance of involving experienced employment counsel?*

†Yes, I’m aware there are people far smarter than I who believe we haven’t yet escaped the recession.

‡As far as I know I coined this term.

*Shameless use of link for self-promotion is acknowledged. The question becomes whether, by pointing out and acknowledging the self-promotional use of repeated links to my LinkedIn profile which, by implication, advertises me, variously, as “experienced” and “knowledgeable” employment counsel, I am somehow absolved of the sin of shameless self-promotion, or whether, the fact that, in addition to the link, I also used this footnote to attempt to absolve myself of said shameless self-promotion, is itself equally, or even more, shameless. To quote Bill Murray, “We’re getting into a weird area here.”

As I grow older, I become increasingly familiar with the feeling of “dating” myself by admitting to TV shows I watched, music I liked, or even sports I played (remember Dodgeball?).  I date myself as a California litigator when I reminisce about the “Five Year Rule.” The Rule wasn’t repealed. It’s still part of the California Code of Civil Procedure. Section 583.310 provides: “An action shall be brought to trial within five years after the action is commenced against the defendant.” Section 583.360(a) says: “An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.” (All emphases added.)

The statute sounds ominous, doesn’t it? I remember being a new defense lawyer in the early 1990s opposing motions to exempt a case from the Five Year Rule for some reason or another. I was awed by the relative calm with which plaintiff lawyers argued these motions, on the very eve of expiration, as though they had nothing at all to worry about. I knew that I would be an absolute wreck if I thought there was even the smallest chance my client’s case would be dismissed. But, I never had a case get dismissed for failure to start trial in five years. It seemed like the statute had more bark than bite.

The Five Year rule never went anywhere. Instead, the California courts changed, rendering the Rule completely irrelevant. Around my third or fourth year, the state courts initiated the Delay Reduction Act, or “fast track” rules. When the fast track rules (majority of cases to be tried within one year) were first implemented, I remember judges were really difficult if you wanted to exempt a particular case from the fast track. God forbid a case might legitimately take 18 months or, gasp, 2 years to be ready for trial. Certain judges were so committed to the new rules that they would set a trial date within 12 months even if it fell on Christmas eve or interfered with someone’s wedding or honeymoon. I suppose it seemed particularly draconian because I hadn’t yet realized that, regardless when they’re set, most civil cases never actually start trial.

While it’s mostly dinosaurs like me who remember the Five Year Rule, it now seems that, with the massive changes to California’s courts occasioned by the budget crisis, the Rule could become relevant again. If we do see a resurgence of motions to dismiss under the Five Year Rule, here are a couple of things to keep in mind:

• The parties can stipulate, either in writing or orally in open court, to extend the time for trial to occur. (CCP §583.330)
• The time is calculated to exclude time during which the court lacked jurisdiction, or prosecution of the trial was stayed or enjoined, or getting the case to trial was impossible, impracticable or futile. (CCP §583.340)
• Courts have significant discretion in their application of the §583.340 exceptions. See, Bruns v. E-Commerce Exchange, Inc., 51 Cal.App.4th 717 (2011).

However, even armed with dicta from Bruns, lawyers representing plaintiffs must be able to show they’ve been diligent in moving the case along. Otherwise, mandatory dismissal is technically possible.

Ever 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.

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.

When Alec Baldwin retires we’ll look back over his career, appreciate his different “periods,” and argue over when he shined most brightly. I’ll be torn between the current Alec Baldwin, a mischevious clown with serious acting and comedy chops, and an earlier, completely different Baldwin, handsome, hardened, narcissistic–kind of an asshole, really–that we see in Glengarry Glen Ross, The Juror, and Malice, from which this clip is pulled. I personally find his monologue in the opening minutes of Glengarry Glen Ross to be the most compelling (“Coffee is for closers!”), though he’s damn funny on 30 Rock.

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.

So much in our lives, both professional and personal, lies outside our control. Focusing on the professional, most lawyers will never be fortunate enough to be able to limit our practice to only perfect clients who march into our office carrying a perfect set of facts which, when presented to a judge and jury, are virtually guaranteed to yield an excellent outcome.

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.

I recently participated in a conference about negotiation. I left with a list of negotiation “pointers,” short strategies to help keep your eyes on the prize when negotiating. I’ll share five good ones here.

1. Set your goals ahead of time and come prepared with alternatives. You (should) know you will be making concessions in the negotiation process; try to think of what concessions are acceptable and where you’ll need to draw the line. In this planning, also anticipate your opponent’s points and develop responses.

2. Make sure the other side feels heard and understood. Then make sure they hear and understand you. If either party to a negotiation is not being heard, it’s not really a negotiation.

3. Don’t be dragged into an emotional response. Condescension, rudeness or bullying should be firmly met. Don’t back down–remind them that you came prepared to make a deal and that you thought they did too, then transition back to the points you want to discuss. Once your opponent realizes their tactics are not intimidating you, they will likely stop.

4. “Horse trade” when making concessions. Try to make concessions conditional on an equal or greater concession by them. Also, before making a concession, try to find out what additional concessions they will ask for before signing an agreement.

5. Don’t be afraid to invoke a “cooling off period.” If you reach an impasse, or are not sure what move to make next, consider asking your opponent to give you 24 hours to consider their last move. A corollary is not to be so eager to make a deal that you make concessions you will later regret.

And, remember, we’re all counting on you.

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.