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(323) 652-9451 - LAI used to think it was a worthy skill unique to litigators: the ability to be harsh and aggressive when it seemed appropriate in the course of representing a client (in a deposition, for instance), but turning immediately friendly and professional as soon as we’d gone off the record and there was no question or objection pending. After all, didn’t it show that, as lawyers, we were in complete control of our emotions when we could turn our temper on and off, like John McEnroe at a Wimbledon final?
I’ve come to think differently now. I just finished a deposition with a crusty older litigator and I found his penchant for blowing hot and cold disconcerting. I was not doing the questioning, but while we were on the record he would make frequent, loud outbursts at the female lawyer conducting the deposition of his client. She, too, was seasoned and seemed unfazed by his temper, though she did ask him a few times not to yell at her. When we took breaks, he would almost instantly turn cordial, asking her where she lived, about her kids, etc. She played along, as though such vacillation of temperament was the most natural thing in the world.
The rules of ethics and most judges expect lawyers on both sides of a case to treat each other with “civility.” Are loud, threatening outbursts transformed into civility just because we change from bad cop into good cop when aggressivity is no longer called for? I don’t think so. Certainly there are going to be times during a deposition, negotiation or even a hearing when zealous representation calls for us to “kick it up a notch,” and establish a line we don’t expect will be crossed. But I doubt the experienced lawyer making the loud outbursts during the deposition would have behaved the same way during a trial–even a bench trial. So, why should he behave any differently just because there’s no judge or jury present?
I’ve been guilty of this in the past, though I always found it more difficult to instantly change from nasty bad cop to friendly good cop. When our communications turned cordial, I usually felt inauthentic. At the end of a full day of this, I was invariably exhausted. I still get riled sometimes, but I try (not always successfully, I admit) to maintain civility even when I feel my opponent is being unreasonable. I suspect, though I have no evidence to back it up, that litigators would live longer, happier lives if we could just cut out the vacillation between hot and cold and just treat each other civilly all the time instead.
Learn MoreA great recent post at What About Clients? highlights a policy that will benefit most trial lawyers. Basically, no later than 60 days before trial, take a fresh look at everything. Here’s how it goes:
“[N]o more than 60 days from trial, read over and take a proverbial bath in all of the written discovery responses and–if time permits–every deposition transcript in the case. Work through the materials relatively quickly but as thoroughly as you can. In particular, do one good read of any deposition you did not take yourself. And of all written and signed discovery responses (you can skip the documents). Go back to the start of the case. Do not rely only on deposition summaries or on outlines of direct or cross examinations prepared by others. The process of “immersing yourself” in all the discovery will suggest new sub-themes, patterns, weak points and even a new fact or two in your opponent’s case that meant little to your side when it was first produced. Now discovery will take on new and instructive meanings. Having gone through that exercise, you will be steeped in the case. You’ll have knowledge that will give your examinations of witnesses credibility, authority and command.”
This alone is a great idea. But I think the review could be an even more meaningful exercise if it is informed by what you’re going to do with the evidence you find. When, for example, does it make the most sense to highlight a piece of particularly powerful evidence? I like to have copies handy of the most important jury instructions I expect will be given at trial. This way, as I’m taking a bathin the evidence, I can develop a plan where the evidence will be best presented. It also gives me a head start on how I’m going to structure my closing argument, where I take the jurors though each element of a claim or defense and show how the evidence proves or disproves a particular element. I like to think this is a great idea made even better.
Learn MoreThe Defense Research Institute (DRI) is seeking new members and I promised to do my part with this public service announcement.*
I’ve belonged to DRI since my first year of practice and I have found it to be a great resource and, at times, a lot of fun. Over the years, I’ve belonged to the Young Lawyers, Products Liability, Trial Tactics, Alternative Dispute Resolution, Commercial Litigation and Employment and Labor Law Committees. With a few exceptions, I’ve tried to hit at least one conference every year, often in Chicago, but sometimes in really exotic destinations like Scottsdale or Las Vegas.
The benefits of membership include well-planned, well-executed conferences, a monthly print magazine, For the Defense, which generally has focused and relevant articles, and multiple online e-newsletters. There are expert witness databases and certain substantive law committees have very active listservs. There’s also a blawg, DRI Today. The real benefit from my perspective, though, is the opportunity to belong to an (inter)national** network of thousands of practitioners who can serve as both referral sources and substantive law resources. I met some great people at the conferences and I’ve kept in touch and tried to refer business to many of them over the years.
Take a look at DRI. There’s a discounted membership for lawyers practicing 5 years or less. And if you’re interested in joining, let me know and I’ll hook you up.
*With guitar!
** Including Canada.
I know that I am not alone in feeling the inclination sometimes to dispatch a really sharply worded letter or email to my opposing counsel. I’m talking the kind of letter that says a big, snotty “so there!” so often it feels like a one-two punch twice in every paragraph. I know I’m not alone in this urge because I’ve been on the receiving end of such letters and emails from opponents whom I discovered later to be, deep down, pretty nice people.
I’ve contemplated why we feel the urge to do this and, further, why we indulge it more frequently in writing than in person or over the phone. I believe it’s a manifestation of the fight-or-flight response that is apparently part of being human. But I also believe we find it much easier to take an aggressive tone with someone when our communications are mediated by time and distance. Using myself as an example, I have at times written aggressive things in correspondence that I would never have had the gumption to say in person or over the phone.
Let me go on record saying here that, in all but a few instances, I’ve ultimately regretted taking an “uppity” tone in letters to opposing counsel. This is so true that I’m very sensitive to the tendency now. I take care not to send a message or letter that I’ve written when angry, hungry, over-caffeinated or all three, at least until I’ve given myself an interval to cool off and critically re-read what I wrote. The reason is that, on balance, I’ve vastly preferred the practice of law–and procured better results for lower fees–when I’ve tried to maintain a cordial relationship with my opposition.
It’s not always possible. Cordiality, like professional courtesy, is a two-way street. If my opponent mistreats me, I’m not going to be a doormat. And, during the course of a case there is bound to be occasions when we rankle one another. It’s unavoidable in a practice–litigation–in which we are inherently at cross-purposes. On the other hand, if I’ve stayed professional in my written communications, I find it vastly easier to get along in person.
The absolute worst situation is where I’ve not met in person or established any kind of relationship at all with my opposition other than an exchange of letters laced with snide comments. When the time comes for one of us to ask a favor (and that time always comes) and a phone conversation is required, there’s nothing worse than trying to shrug off the ill feelings that have accumulated through our letters. “How are you today” just sounds hollow. The balance of power in these circumstances is always tipped in favor of the lawyer who does not need the favor (an example of situational leverage, I assure you). I vastly prefer to be the one who’s taken the high(er) road and in the position of granting the favor than the lawyer who’s been asshole and is now on his knees begging.
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A recent post on Legal Practice Pro, “When Substituting In, Beware The Pile Of Crap” warned about a risk faced by any lawyer who substitutes into a case in place of another lawyer: getting sanctioned for the unethical or bad lawyering of the predecessor. This is surely one of the bigger risks when you take over for someone else. But there are other things to think about when asked to “sub in,” particularly if there have been more than one lawyer who previously represented this client in the same matter.
I’m thinking in particular of the problem or “unworthy” client. Anytime you are asked to get involved in a case mid-stream, and there have been a succession of multiple lawyers before you who have either quit or been fired, I’m going to bet it’s the client, not the lawyers, who is the problem. Clients can be unworthy for a number of reasons: they fail or refuse to pay, or to pay within a reasonable time, they have unrealistic expectations of their lawyer, they ask their lawyer to act unethically, or some combination of these.
There is no question that many clients have legitimate reasons for seeking new counsel. Maybe the lawyer is unskilled, unethical, spread too thin, or just an ass to work with. But, if the same client could not make it work with two prior lawyers, and he or she is looking for a third, or a fourth . . . I say an alarm should sound: beware.
If you hear but cannot heed the alarm, and find yourself in the position of lawyer #3 (or 4 or 5 . . .), there are a couple of things you can do to reduce the risk that your engagement will end badly. First, learn and know the file before the substitution is signed and you take over. This can and arguably should include a heart-to-heart conversation with your predecessor(s). As uncomfortable as this can be, it’s worth the effort. Second, get a healthy retainer up front (assuming the matter is not a pure contingency fee case). Most important, though, take the time to have an in-depth conversation with your new client and pay particular attention to whether his or her expectations about your involvement and the outcome of the case are realistic. Unless your predecessors were first class idiots, avoid making promises or representations to the effect that you can guarantee a better outcome. Because you simply can’t.
Learn MoreI came across this post on the Lawyerist on the question whether good legal writing is inherited or developed. Putting aside that debate (the answer is both, by the way), it occurred to me that there are two steps that mediocre legal writers can take to immediately improve their writing.
There are actually three steps. The first is to realize your legal writing needs help and care enough to try to improve it. There are lots of advocates who slog through an entire career filing nearly incomprehensible briefs. Don’t be that lawyer. Take pride in your product. The fact you have read this far, rather than clicking on to something more compelling, means you are at least curious, or you just got an Apple and haven’t figured out how to navigate away from this page.
The first sure-fire way to improve your legal writing is to strive to use an active rather than a passive voice. It’s ironic that I spent several (ok 6, but who’s counting) years getting a degree in Literature-Writing from a really solid university, but it wasn’t until I was a staff member on Law Review that I truly began to understand the importance of active voice. If you missed the special torture that is editing a legal journal, or were otherwise never trained to write in active versus passive voice, I’ll provide a very easy example to illustrate the difference. Using passive voice, a lawyer might construct a sentence that reads: A man, woman and two children were shot by the defendant. Contrast that sentence with one written using active voice: The defendant shot a man, woman and two children.
See? Simplest thing in the world. But, even those of us who generally strive to use active voice occasionally fall into passive voice. The key is to recognize when you’re doing it and decide whether the sentence you’ve created could be improved by changing the voice.
The second way to immediately improve your legal writing is equally simple. Pare back the number of words you use to say what you’re trying to say. This was something my mentor taught me when I was a baby lawyer and I’ve generally tried to adhere to the principle, at least when writing to a court or opposing counsel. Basically, every word in any sentence should be necessary. Nothing extraneous. This will automatically take care of the tendency to include “herein” and other pointless words. It also forces the writer, you, to think about what you’re trying to say and how to say it in the clearest way possible. Judges and clerks appreciate clarity.
Now. This second “way to immediately improve your legal writing” is not a rule. It’s just an approach. And, it’s an approach I freely disregard when I want to emphasize something through repetition or diction (word choice). Hell, I often write entire paragraphs in the passive voice and include a lot of extra words. But, when I do it, I do it purposely, usually for effect. Otherwise, I strive to write clean, spare, Hemingway-like sentences, in the active voice, as free as possible of legalese.* (*Ok, I’ll admit an affinity for ancient latin phrases like sua sponte, ab initio, inter alia. I know that writers who know what they’re talking about, as opposed to armchair poseurs (who me?), have zero tolerance for latin phrases. If I give in to the urge to use them in an early draft, I almost always delete them.)
There. If you struggle with your legal writing, try these two suggestions. I guarantee you’ll see results.
Learn Morehttps://youtu.be/fgIBG8q1Gjc
In this clip from A Few Good Men, two Marines are on trial for a murder on their training base. The Marines’ defense is that they were ordered by officers to give the decedent, a fellow Marine, a “Code Red,” which is a violent training “tool” used to bring errant Marines in line. The decedent was killed during the performance of the Code Red.
The prosecution (played here by Kevin Bacon) wants to poke holes in the whole notion of a Code Red. When another Marine from the same unit is on the stand, Bacon cross-examines him with two books, The Marine Outline for Recruit Training, and the Standard Operating Procedure applicable to his unit. Bacon elicits admissions that the term Code Red does not appear anywhere in either manual, thus making it seem like something the defense has cooked up or exaggerated.
The defense (played by Tom Cruise) deftly resuscitates his witness by using the same Standard Operating Procedure and asking the witness to locate where in the manual it explains where the mess hall is located. Of course the manual makes no reference to the mess hall, either, crisply illustrating the fallacy behind the argument that a Code Red must be a fiction if not officially recognized in the Marine training manuals.
Oh, and sorry if this contained a spoiler. The movie has only been out for like 25 years.
Learn MoreLike many business books, the Attorney entry into Michael Gerber’s E-Myth series is substantively less revolutionary than it sounds. But, it contains advice which, if followed, can be transformative.
What is an E-Myth Attorney? “In short, the E-Myth says that most attorneys don’t own a true business–most own a job disguised as a legal practice. They’re doing it, doing it, doing it, hoping like hell to get some time off, but never figuring out how to get their business to run without them. And if your business doesn’t run well without you, what happens when you can’t be in two places at once? Ultimately, your practice will fail.” (From the Preface, xvii.)
The book is largely about transforming lawyers’ approach to their practices, so they think more like entrepreneurs. There seems to be a cherished, romantic view that professionals, like doctors and lawyers, should somehow be above treating their practice as a business. As if being called to the priesthood, one is called to the practice of law, and lawyers should avoid transforming this calling into a profitable enterprise. I read blog posts and commentary that frown upon the notion that lawyers should build their law practice like a business. That thinking is noble and all, until it comes time to pay off student loans or put a child through college. Though we constantly confront media reports to the contrary, I’ve argued that there’s nothing mutually exclusive about being a highly ethical professional, but also thinking like a business person. This is exactly the premise of The E-Myth Attorney.
How should a lawyer think more like an entrepreneur? The E-Myth authors focus heavily on the development of systems, ultimately a “system of systems.” It’s not complicated. Using the fantastic success of McDonald’s as a case study, the book discusses how that company “needed to turn pimply-faced, ADD, teenaged kids into productive workers in charge of multimillion dollar franchises.” (64) How did they do it? By developing a system for performing every task of the business which is imparted through meticulous training to every “pimply-faced, ADD” employee. Figure out how to make the perfect hamburger or french fry, and train every employee to do it that way every time. Starbucks uses the same philosophy, so I know a Grande nonfat latte in Toledo, Ohio or Montecito will taste just like it does in downtown Los Angeles.
Of course lawyers don’t make burgers, fries or lattes. But much of the nuts and bolts of what we do–at least those parts that do not require our active thinking and involvement–are not too dissimilar from making burgers and fries in the sense of repeatability. For example, a law practice that caters to individual clients, such as estate planning or family law, should develop a system for client intake, information and file management, calendaring and billing. These aspects are required for every client, every case. Most intelligent law practices already have systematic procedures for these tasks. But there are other aspects of the practice that are capable of systematization, but which we tend to shun or put off systematizing. Not only should we develop and use form files (they benefit attorneys and clients), but forms should be organized in a way that provides instantaneous access. A practice which sees the same or similar claims or defenses over and over should have form discovery which goes out in every such case and which can be quickly tailored to fit unique or individual facts or claims. Systematizing the familiar and repeatable parts of our practice frees us to direct our minds and attention away from the mundane, and toward that for which each of us are uniquely, and expensively, trained.
The book encourages attorneys to develop a manual about every element of the practice which can be given to a new employee. Without this, the authors argue, the departure of a staff member becomes the kind of catastrophic event from which it takes months to recover. And, the authors touch upon other points, including the notion of being selective in accepting clients, alternative billing arrangements, managing time and alternative marketing strategies.
But, for me, the E-Myth is ultimately about appreciating process. I would argue that actively utilizing process and developing systems won’t just make our law practices more profitable and tolerable (what, take a vacation?!?), but it can help us do a better job as advocates. I’ve seen the beauty of process first-hand, as my long time mentor is nearly obsessed with developing repeatable procedures for everything from answering an email from a client (must be the same day even if a substantive response is not immediately possible), to maintaining discovery notebooks for every case into which are gathered discovery, responses, correspondence about discovery and matrices of document productions in a single place. I’ll confess that, after nearly two decades of trying to follow these procedures, it’s only now that I recognize that attention to process should appeal to everyone, not just the anal-retentive members of our profession. It will make our practice better and our life easier.
Learn MoreOne of those absolutely crucial lessons most law schools don’t teach, but which you need to know if you’re going to appear in court, is the importance of making nice with the courtroom staff. A lawyer’s rapport with members of the courtroom staff–the clerk, the bailiff (or courtroom assistant), the court reporter and the research attorney(s)–can have a significant impact on how the lawyer is viewed and treated by the judge.
Obvious? Sure. But it’s not always a two-way street. Practicing in urban courts, we frequently encounter clerks who are (or believe themselves to be) overworked, underpaid and underappreciated, or just plain nasty. I struggled sometimes when I was a brand new snot-nosed punk of a lawyer and I was trying to get something scheduled or filed and it didn’t fit with the clerk’s vision of the world. Because I was brand new and terribly snot-nosed, I naively thought it was just a matter of getting the court clerk to see things my way. Being snot-nosed, I wasn’t always patient and respectful when things didn’t go my way.
I like to think I’m wiser now. At least I realize that I was coming at it all wrong. I know now that I’m a visitor in the clerk’s domain. I’m the one needing relief, or a favor, or just to stay on good terms with the judge. With years, I’ve also learned that jurors frequently take their cue from the way the judge treats the lawyers. If the judge is impatient or frustrated with one of the lawyers in a trial, jurors tend not to like or trust that lawyer. For better or worse, the courtroom staff–and the judge’s clerk in particular–often have the judge’s ear. If I mistreat the clerk (even slightly or accidentally) and that fact filters back to the judge, it can haunt me throughout the case, through trial and, potentially, prejudice my client. Since I might never get a chance to rectify the situation, I might get a raw deal with that judge for years to come.
So I do the smart thing. I mind my P’s and Q’s when it comes to the courtroom staff.
Learn MoreA great post on Associate’s Mind, entitled “Millennial Jurors: Entertain Us,” discusses the challenges facing trial lawyers trying to communicate with Gen-Y jurors. In addition to prognostications about how these young adults can’t sit still and pay attention for the hours needed to take in information during a jury trial (how will they check their smartphones?!?), the post (which itself references an article in the Texas Bar Journal) notes how information needs to be presented to Millennial jurors in shorter visual “bites,” as opposed to purely verbal, format. Better make sure it’s not boring, either.
Undoubtedly a cottage industry will sprout from within the ranks of jury consultants and trial support firms of “Millennial specialists” who claim to know the secret to engaging Gen-Y jurors. But I don’t think the shorter attention span, and increased need for engaging visual, as well as verbal, content is really that new or a bad thing at all. I’ve written elsewhere how trials are too long and taxing on jurors’ minds and attention spans. Anyone trying cases in the past 25 or 30 years knows that a purely verbal presentation–without visual aids (even rudimentary visual aids) is risky, even if the subject matter is pretty sexy.
I think that, while the (alleged) changes in attention span, and increased appetite for visual stipulation seen in Gen-Y (and presumably later) generations might be lamented by parents, educators, psychologists, novelists (and other print media writers) and others, it should not necessarily be lamented by those in the business of trying cases. Rather, like any development, it should be prepared for and embraced. It is true that evidence will need to be presented differently if it’s going to get through to Millennial jurors, and this will require some reflection and research. (Perhaps more in-depth research than was undertaken in developing the Texas Bar Journal article, which was simply a survey of law school students.) And, probably, some trial and error.
Turning the coin over, though, there will surely be evidence that only the younger generations will “get,” at least at first. For example, while it’s commonplace now for defense lawyers to scour the internet for impeachment evidence, there are older jurors who don’t surf the internet and don’t understand “The Facebook,” Twitter or LinkedIn. Cases involving new media, reality television and certain progressive technologies might be completely foreign to more senior jurors but completely familiar to members of Gen-Y. (OK, I’m a little biased because I practice in Los Angeles, where every case will someday be “pre-tried” on TMZ). In short, there should be a place at the table for every kind of juror. The challenge to the trial lawyer is to engage, as best as possible, with jurors of every generation, not just the over-30 demographic.
We’ve got to raise our game, or get out of the way.
Learn MoreOne of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve. This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do. I think also that, as a young associate, I was always looking for ways to maximized billing opportunities. Actual strategy rarely entered the equation.
I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.” Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying. He was absolutely right.
My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun. As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).
I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter. Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client. There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result. So every task, not just discovery, needs to be calculated to advance the ball.
On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery. In fact, quite the opposite is often true. An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.
My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client. If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case. I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense. The same holds true, only opposite, if I’m representing a defendant. This is elementary, but I’ve seen a lot of discovery (and written some over the years) that strayed pretty far off topic.
If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response. Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it. If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?
This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience. By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.
Learn MoreI ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both. Karen draws on her experience trying a case against a really poor defense lawyer. She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”
I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial. “Challenged” lawyers make our job harder–and the case more costly–from day one. They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution). They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances. It seems like they’re never available to address anything substantively. They fight battles over the wrong things–again wasting time. They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.
We all started somewhere. I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes). But the goal should be to improve and try to learn from mistakes, not to keep making them.
Lawyering is like tennis in that the quality of your opponent brings out the best in your game. I’ll take a Federer or Nadal any day.
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