From the District Court:

1. Avoid making frivolous or blanket evidentiary objections in motions for, or oppositions to, summary judgment. This is one instance where the “kitchen sink” approach will simply piss the clerk off, since she will have to research and decide upon the merit of every single objection, regardless how pointless. Give her a break!

2.  Be flexible at oral argument. If the judge issues a tentative, use that information to tailor your oral argument. Try to address issues the court may have missed or evidence in the record that may have been overlooked but support your position.

3.  Read and comply meticulously with local rules and the judge’s standing order. Standing orders will be either posted on the judge’s Procedures and Schedules webpage or will be issued and posted to the docket once the case is assigned.

4.  Stand whenever you speak to the judge. Speak at the lectern, unless the court givs you leave to do otherwise. (And, of course, we know never to traverse the well, don’t we?!?)

5.  Avoid overly broad protective orders. Make sure an issue is ripe for a protective order (i.e., your client knows for sure it will disclose confidential information). Provide specific information to the court describing the documents and an explanation of the harm that will result if not protected.

From the Ninth Circuit:

Remember to let the judge sit down before you do.
[youtube https://www.youtube.com/watch?v=jO5jRBNsgk0&w=560&h=315]

Perhaps this is unique to California, but I just received another announcement from our attorney service of a courthouse closure. In addition, the notice mentioned yet another court that, although not closing altogether, was being reduced by several newly darkened courtrooms.

As a lawyer who makes his living doing things court-related, I’m both saddened and alarmed to learn that entire courthouses are closing. It’s not that I’m sad or afraid because there are fewer lawsuits being filed (that appears to remain on the rise), but rather that there’s a rapidly shrinking number of venues available to resolve those disputes. It will take longer for cases to get to trial, resulting in fewer trials and less access to justice. It will also make it harder for newer generations of lawyers to get trial experience. (This is obviously a secondary concern, but it is a legitimate concern for many of us.) It’s . . . a . . . disappointing to live in such a perpetually mismanaged state. But I’ve been thinking about ways the judiciary and our profession can cope with this situation and I’ve come up with a couple of ideas.

First, I recently co-authored an article for the ACC Docket which talked about the notion of a “compressed” trial, in which the judge forced the parties to present a case that would normally consume 3 weeks in just 4 days. Much of the article discussed tips and suggestions how to better prepare for this kind of compressed trial format, but I also argued that lawyers and their clients should not just accept such a drastically condensed trial, but actually embrace the concept. After all, if a trial that would normally consume 3 weeks could be reasonably condensed down to 4 days,* that would free up 2 weeks in which two more highly compressed trials could be completed. Imagine completing 3 trials in the time if used to take to do just one.

There was a program introduced in some parts of California for the 1 day jury trial. I don’t know if that was successful or is still being practiced. But that’s not what I’m advocating. If the lawyers can shape a case to be tried in a day or less they will almost always do so on their own. But it takes a pretty heavy-handed judge to force the lawyers and parties to condense a 3 week presentation to something like 4 days. Perhaps more judges should do this. Just a thought.

Another idea involves ADR. If budget cuts are effectively privatizing access to justice in some places, it ought to at least be done right. A major concern centers around the cost of ADR, and I’m not talking about the hourly fees of neutrals. In my experience, the rates of most neutrals are commensurate, or even slightly less, than those of the attorneys appearing before them. But there are costs associated with working with an “institutional” ADR provider that tend to give our clients pause, and with good reason. If law firms are going to be squeezed and forced to do more for less, shouldn’t ADR providers do the same? What about more “solo” ADR providers?

My personal beef with ADR, at least arbitrations, is the inconsistent application of the rules of evidence. Appellate courts keep judges honest, but some arbitrators can and do dispense with evidence rules rather freely, which makes the hearing something of a chaotic free-for-all.

There’s no real silver lining to the issue of darkened courtrooms and closed courthouses. Wherever it occurs, there is reduced access to justice. Perhaps, though, we can collectively brainstorm and come up with constructive ways to manage the problem.

*Whether it was in fact “reasonable” for the judge to compress the trial this aggressively was a subject of some debate, particularly by counsel for the losing side which, fortunately, was not me.

I counsel and defend both small and large companies, mostly on employment issues and cases. I see many differences in how a larger, more established company handles its role as a defendant in civil litigation, and I think there are important lessons a smaller entity can learn from these “big dogs,” even if they never plan (hope!) to get sued again. Chief among these lessons is the value of a well-considered evaluation report.

Smaller companies might view any kind of written evaluation as a frivolous, unnecessary expense. I sympathize with this view, but I think it is misplaced. First, as you’ll see, I’m not advocating the kind of “term paper” report demanded by large corporate defendants. For a corporate client or insurance carrier that is regularly involved in litigation and knows what it wants to know, I’m happy to provide the most detailed report in the world. Why would I object–I get paid to do it?

But when I counsel a company that rarely finds itself in civil litigation, I don’t think it’s necessary to incur the cost of a 20 or 30 page tome. Rather, something that is between 2 and 4  pages total balances cost-efficiency with the importance of a written evaluation.

Before I get to what to look for in an evaluation, I want to cover timing. Large corporate clients for whom I’ve prepared evaluation reports typically require a comprehensive initial report anywhere from 90-180 days after the suit was assigned. Thereafter, most corporate clients like to see an update every 90-120 days, with some kind of even more comprehensive pre-trial evaluation about 60-90 days before the scheduled trial date. There’s no reason a smaller company should deviate from this timing. It is important to understand that an update is just that, it’s not a re-writing. I simply bold any information that is new since the last report. If there are things from prior reports that no longer belong, they can either be scored or deleted altogether.

Here are the elements I would, as a client, always expect from an evaluation of a case in litigation:

1. Brief statement of operative facts. Brief means brief. The point is to make sure both the client and the lawyer have a common understanding of the operative facts. These might be both what is alleged and what the defendant is expected to prove. The last thing any client should want is for its lawyer to start trial without ever having run through a narrative of the operative facts on paper.

Also, even a very small company will likely have people involved at the management level with only a marginal understanding of the facts. This brief (did I say brief ?) statement can be shared with senior management, directors, investors or partners, to bring everyone up to speed. In addition to the liability facts, I would also include a list of the theories of liability and a brief statement of the damages sought, even if only in summary prayer, rather than concrete dollars and cents.

2. Very brief evaluation of the venue, judge, opposing counsel and plaintiff. (I mean brief dammit!)

3. Evaluation of each viable defense, including strengths and weaknesses. This is really the heart of the evaluation. This should be written in language that, to the extent possible, is devoid of legalese or confusing concepts. Clients who are not lawyers should be able to read this section and get a clear understanding of what will be proven at trial and how. On receiving this, clients should ask counsel to clarify any point that is not clear.

Now, while this section of the evaluation is written for the client, part of the value is in the composition process itself. In formulating this part, the lawyer will be forced to think through the client’s defenses, evaluate their viability and even develop a short inventory of what evidence will support the defense or make it challenging.

4. Exposure. How much, realistically, could the client lose if the case is tried and lost. In my field, employment law, this needs to include an estimate of the opposing side’s attorney’s fees since most federal and state employment law schemes permit a prevailing employee to recover her reasonable attorney’s fees.

5. Ultimate recommendation. Is this a case that should settle? Is it a trial candidate: i.e., one in which there is a 75% or greater likelihood the client will win (I prefer to think of it this way: a jury will return a defense verdict 7 out of 10 times)? Clients’ risk tolerances differ; some are more willing to gamble, others want to be virtually certain of prevailing at trial (there’s no such thing as virtual certainty of a verdict, by the way).

If the recommendation is to pursue settlement, what is a reasonable settlement amount, and what is the proposed path to get there?

6. Tasks and budget. Clients should be entitled, at every stage of any lawsuit, to a list of what is anticipated to be done in the next 60-120 days, and a reasonable estimate of what the cost will be. Hopefully clients understand that this is only a thoughtful estimate of what is required and the cost. None of us is omniscient.

Crucially, an evaluation should be considered a living document. Cases evolve. If every single fact, estimate and nuance of an evaluation remains the same from the beginning of the case until the start of trial, something is missing. Again, I advocate an approach that simply adds new developments to an old evaluation in bold.

Many lawyers will provide some kind of evaluation as part of their ordinary practice. If you’ve hired one that does not, ask her not only to provide an evaluation, but to provide it early enough so that a bad case can be settled before so much time and money has been invested that settlement is not a viable option for one side or the other.

I last wrote about a recent presentation made to my office by a retired judge, “Practical Advice and Perspectives From the Bench.”  While I found it most compelling (disturbing) to learn that many (most?) jurists in Los Angeles Superior Court, have a policy of denying even meritorious motions for summary judgment, the judge also offered several items of valuable advice.  While much of this will be familiar to lawyers who regularly appear in court, it is all useful and some of us, myself included, benefit from the occasional reminder.  So, in no particular order, here are some of his more valuable insights and suggestions:

1.  Never, ever, ever preface any argument to any judge using “With all due respect . . .”  This conveys the opposite, essentially, “You, Judge, are a moron, incapable of understanding the most basic legal concept . . .”

2.  Do not give equal time and/or space to weaker arguments.  This dilutes the stronger arguments.  Always lead with your best argument.

3.  Avoid repetition.  In the law and motion context, do not repeat arguments from your client’s motion in your reply.  And don’t orally repeat the argument again during the hearing.

4.  Don’t argue when the tentative is in your favor or you’re otherwise winning.  Sit down and shut up.  Don’t snatch defeat from the jaws of victory.

5.  Always give pin-cites (i.e., to the specific page within an opinion).  While this is how I was trained and how I practice, I would not have guessed pin-cites were so important to judges (and research attorneys).  The judge said his practice was always to look up cases lacking pin-cites and 50% of the time the case did not stand for the cited proposition.

6.  Refrain from petty complaints about opposing counsel.  The judge hears this all day long and you’re not furthering your cause, even if you’re 100% correct.

7.  When you appear on a multi-party case, take the time to orient the judge as to who the parties are, how they fit together in the controversy.  We apparently have “no idea” how confusing and disorienting it is to the judge when five different sets of lawyers appear on a case.

Again, many of these are either common sense or things most of us already know.  But, coming as they did from a retired judge, I thought it would be useful to share them.

A retired California state court judge recently came to our office and gave a continuing legal education presentation on law and motion practice–“Advice and Perspectives From The Bench.”  It was engaging, largely because of the judge’s willingness to draw back the curtain and talk more candidly about topics left out of typical CLE programs.  In particular, he offered some illuminating, if not alarming, inside information about how most of his former colleagues on the bench won’t grant a motion for summary judgment, regardless how meritorious the motion may be.  He cited “fear of reversal” as the biggest reason for this reluctance.

I often counsel clients who are unfamiliar with the contrast between state and federal courts in California that a meritorious summary judgment motion has vastly better odds of success if the case is pending in federal court than California state court.  I had not been aware, however, that some state court judges actually have a policy of denying such motions regardless of merit.  In my experience, our district court judges never shy away from summary judgment if the papers establish it’s appropriate.

Why this dichotomy? Why are state court judges so worried about their reversal rate, when their district court counterparts do not seem encumbered by this fear?  Is it the security of a lifetime appointment?  Is it the concern that excessive reversals will hamper promotion to the state Court of Appeals?

Whatever the reason, a predisposition to deny motions for summary judgment, whether there are triable issues or not, does us all a disservice.  In 1993, the California Court of Appeals, in Juge v. County of Sacramento, 12 Cal.App.4th 59, wrote that:

The summary judgment procedure provides the court and parties with a vehicle to weed the judicial system of an unmeritorious case which otherwise would consume scarce judicial resources and burden the parties with the economic and emotional costs of protracted litigation because the lack of merit is not apparent from the face of the complaint or answer. The procedure permits the court to penetrate the pleadings and ascertain, by means of affidavits, the absence of triable issues of material fact. It is in the public interest, including the court’s interest in the efficient and economical administration of justice and the parties’ interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter.*

I do not take issue with the heavy burden placed on a party that seeks to deprive its opponent of a jury trial.  But our courts are buried.  Litigation is expensive–expenses which are necessarily passed through to the public through an increased cost of goods and services.  This isn’t about tort reform.  The legislature has already spoken and developed a mechanism which is theoretically fair to both sides and which, if employed, should lighten the (over) load of courts and drastically reduce the cost to both sides.

Most of us who practice “in the trenches” know that there are a lot of lawsuits which lack merit.  Judges who won’t seriously consider granting a motion for summary judgment on a case that warrants it are certainly doing a disservice to both the plaintiff and her lawyer.  Why prolong the pain and expense?

It’s no secret that, statistically, only a fraction of lawsuits will be tried to verdict.  The vast majority result in a settlement.  But it often takes a looming costly or risky event on the horizon to get earnest settlement discussions going.  Meanwhile, the meter is running and the lives of people and companies are thrown into chaos.  Trial is the most risky and costly event of all.  But a pending motion for summary judgment, before a judge that will grant a meritorious summary judgment motion, can also be a looming risky event which brings parties to the table.  As it increasingly becomes common knowledge that judges are actually “afraid” to grant summary judgment, such motions become an expensive waste of everybody’s time and the “coefficient of risk” remains so minimal that the parties may not seriously discuss settlement until the case nears trial.

What’s the answer? I don’t have a handy one in my back pocket.  Write to your congressperson? I won’t discourage my own clients from filing a meritorious motion for summary judgment, but I will continue to be honest that the odds of winning such a motion, at least in California state court, aren’t so good.

*12 Cal.App.4th at 70.  Emphasis added.  Many internal citations omitted.

 

Should our trial preparation and presentation be appreciably different when trying a bench trial or arbitration before a single arbitrator? If so, how?

As in most instances, McElhaney offers spectacular guidance on this topic.  Instead of framing the situation as simply a bench or nonjury trial, he reminds us we are still trying a jury trial, it’s just that there is only one juror.  While some of the drama may be diminished, we’re still in the business of seeking a unanimous verdict.  That said, his chapter on Judge Trials from Litigation offers the following advice:

1.  Understand your jury.  “[K]nowing to whom you are talking makes a difference in what you say and how you say it.”  Instead of a half-hour voir dire session, you may have months and months to learn about your judge, including her biases and prejudices.  Make good use of this time.

2.  Win the case before you say anything.  Write a bench brief that really sings, focusing particular attention on the first three pages.  McElhaney quotes Houston lawyer William Pannill: “The first one to explain what the case is really about has a tremendous advantage. The bench brief is an opportunity to do that.”

3.  Don’t relax your presentation just because there’s only one juror.  Use the same care in the order of presentation of witnesses, be concise and concentrate on telling a story.

4.  Preserve objections.  Just because the judge hears evidence before ruling on its admissibility, it remains imperative to preserve the record for appeal.  In fact, objecting isn’t as potentially harmful in bench trials because the judge knows you have to do it.

5.  Finally, even if parts of evidence have been stipulated to, don’t leave these out when arguing the case to the judge or arbitrator.  McElhaney points out that it is sometimes the stipulated facts that “are the best proof of what the case is all about.”

A recent post at the excellent Bow Tie Law’s Blog illustrates, in the realm of E-Discovery, the importance of explaining “why” to the judge.  Specifically he discusses the importance of explaining why it is not possible, for reasons of cost or undue burden (or some other important reason), to access and provide Electronically Stored Information (ESI), such as email communications.  While the focus of the post is on what kind of showing would be required to defeat a motion to compel production of ESI, it illustrates a larger point that bears repeating–make sure the judge understands “why.”  Never presume it’s enough that you’re asking for relief and it seems like a good idea, or that the other side doesn’t have a good argument against it.  While a case (or a string of cases) supporting the relief you’re seeking is always nice, it’s equally if not more crucial to explain why the court should rule your way.  Why you’re asking for exactly the relief you’re seeking.  Why you need it now.  Why you didn’t wait too long to seek relief.  Why there’s no reasonable alternative.  Why the opposing party will not suffer prejudice when the relief is granted.

An illustration that’s closer to home.  A little over a year ago, I had to seek an emergency continuance of a trial because I had been diagnosed with a detached retina which required immediate surgery and a month of recovery.  One of my colleagues, knowing our judge well, said he thought there was only a “50/50” chance the judge would grant the continuance.  This meant he thought there was a 50% chance the trial would not be continued! 

I’m not sure how I could have simultaneously undergone invasive eye surgery and made an opening statement, but you can imagine how important it was to me that the judge grant my application for a continuance.  Not only did I explain in my declaration, step by step, how my vision had rapidly deteriorated over the last few days causing me to insist on an emergency appointment with my doctor, I also attached a doctor’s note (which I had to basically dictate to his assistant) and a series of articles from the internet discussing my condition, how emergency surgery is required to avoid almost certain blindness, and how my head would need to be positioned face down during the recovery period.  Fortunately, the judge granted the requested continuance, my surgery was successful and I won the trial!  The point is to never assume the judge understands and will adopt your position just because you say she should–it’s crucial to explain why.