Archive for the ‘Practice Tips for Young Attorneys’ category

Monday Tip for Young Attorneys- Follow Orders or People Die!

November 14, 2011

Hello all, and welcome back for your first young lawyer tip in a while.  I apologize for the impolitic title to today’s post, but it’s the perfect tie-in to my pic of the beloved movie character Col. Nathan Jessup from A Few Good Men.  In a movie that already was excellent for two hours, Jack Nicholson and Tom Cruise put on a heckuva show in the climactic court examination of Nicholson’s character.  Cruise’s character, attorney Lt. Daniel Kaffee, sets up Col. Jessup perfectly by having him wax poetic about the importance of following orders in the Marine Corps, evoking the line, “We follow orders, son.  We follow orders or people die!  It’s that simple!”

Well, this post is meant to convey that message to young attorneys.  Court orders are to be followed to the letter!  If an Order cannot be followed, you better ask for relief from the Order.  I have a recent example to prove this point, which I will share without mentioning cases or names.  Recently, in one of my cases, my opponent and I were under an order to not only procure a mediator, but to set the time and place for mediation.  Most orders referring the parties to mediation simply require the parties to agree on a mediator by a certain date and to complete mediation by another date.  This order actually required the mediation date to be set, even though the parties literally had about a six month window to set it. 

My opponent, apparently used to the more typical referral orders, basically blew me off until the last moment in response to my efforts to set the mediation.  Accordingly, the parties were not even able to agree on the mediator until the due date for the Notice of Mediation.  I thought to myself, “This is no big deal.  We have six months to mediate.  We can let the Court know that we have our mediator, that we’re working so very hard to get the date/time set, that we have clients in California working hard to line up their calendars, etc.  No problem.” 

We filed the Notice of Selection of Mediator and advised the Court that we will advise immediately once we had the date and time set.  That had to be fine, right?  WRONG!  Later that evening at approximately 8 pm on a Friday night, I see an Order striking our notice and scolding both parties for failure to comply with the Court’s Order.  It wasn’t my fault that we couldn’t comply, but deep down I still knew I was wrong for greenlighting the path we took.  We should have moved for an extension rather than taking matters into our own hands. 

Was I happy to get that Order?  Definitely not.  Do I think it was necessary?  Probably not.  Do I understand why it was entered?  Sure.  The court needs to make sure the attorneys are aware of who is in charge.  If we were permitted to slide on that issue, where is the line drawn then?  Would it be ok to send in the pre-trial stipulation late?  Would it be ok not to mark exhibits the way the court wants them marked? 

Follow court orders, folks!!

Monday Practice Tips for Young Attorneys- Trial Mode, Part 1

October 17, 2011

Hello all, hope everyone had a fun and safe weekend!  Depending on a number of factors, between the firm you are in to an unusual type of case to pure luck, your first trial experience could come at a variety of different moments in your career. 

Today, we will start a series of little tips to help young attorneys deal with trial preparation. 

The first tip is to be prepared to see new versions of whichever partner you will be trying your case with.  The pretty cool character who never seems to sweat may well turn into an impatient and at times downright unfair guy or gal as the days and hours before trial fade away.

The best advice I can give is 1) to assume this will happen; 2) emotionally prepare yourself; and 3) overcome it.  Trial is a pressure-packed atmosphere, but the most intense for the head partner who has the client in one ear, you in the other, reams of documents to be familiar with, and the culmination of one or more years of work on a case in front of them.  Once the battle is over, that person you admire and enjoy working for will be back, and those hard times you dealt with in preparing will bring you closer professionally, much like those fisticuffs you had as a kid with your sibling brought you two closer together. 

Monday Practice Tips for Young Attorneys- Don’t Qualify the Opposing Expert!

October 3, 2011

Hope everyone had a better weekend than this Florida Gator fan!  Today, we circle back to our series on deposition preparation.  When we last spoke on this issue, we were starting to dole out some tips for deposing experts.  Today we focus on another associated tip:  Never qualify opposing experts in your deposition!

In advance of the deposition, you will undoubtedly receive a copy of the expert’s curriculum vitae, setting forth their storied academic and professional history, the three dozen articles they have had published, their various academic appointments, etc.  For some reason, it’s a natural urge to draw up a series of introduction questions about the expert’s qualifications.  Almost like an early throat-clearing part of your outline when you are afraid to start digging into the heart of the area of expertise.  Having the expert “qualify himself” during your examination is a big mistake for several practical reasons:

1) While you are accomplishing absolutely nothing that helps your case, you’re chewing up 15-20 minutes of valuable time.  As a reminder, your client has to pay for the expert’s deposition time, which will often be in the range of $500/hr.  You often will come to the deposition with a check for just an hour or maybe two.  You don’t want to be rushed during the important parts because you let the expert talk about their grades in college for 20 minutes at the beginning.

2)  More importantly, you never know when an expert will be unavailable to attend trial.  Most young lawyers are used to having relatively open calendars.  Grizzled experts are exactly the opposite.  They clear deposition times, vacation, speaking engagements, and everything else months in advance.  When the date of trial starts skipping around as they invariably do, trial experts often will be unavailable to attend (particularly ones that are not local).  By letting the witness give us qualifications in deposition, you just permitted your opponent to have his deposition read into the record at trial, if the witness is indeed unavailable.  If you don’t qualify the witness, your opponent neglects to do so on cross-examination, and the expert does not attend trial, he is lost to your opponent (unless his testimony is somehow otherwised preserved on the eve of trial).

We will be back with a Pop Review tomorrow!  

Monday Practice Tips for Young Lawyers- Interviewing Tips

September 26, 2011

Hope everyone had a great weekend!  It’s great to be back for today’s relaunch of the daily blog!  We’re still learning how to keep the blog moving amidst busier times so thanks for bearing with us. 

Today I want to speak a little bit about a situation nearly all of us face before the beginning of our first job and, unfortunately, many of us face again within the first few years after we start the practice of law — interviewing.  Our firm just added an outstanding new attorney, so the process of interviewing candidates is pretty fresh in my mind.  During the process, a few positives and negatives stood out for me in listening to responses from some excellent prospects.

First, the easy stuff.  Let’s call them the Fast Five:

1)  Be on time!

2)  Dress in business attire (even if you know the employer is business-casual!)

3)  Research the firm in advance and be aware of what type of work they do.

4) Go with the flow at your interview.  If they want you to meet 20 people, so be it.  If one person interviews you for 90 minutes, no problem.

5) If you go out for lunch, no sloppy joes or baby back ribs! 

These are pretty basic and self-explanatory.  Here are a few more subtle tips.  Remember, these are for more inexperienced attorneys!

1)  Have a Team-Oriented Mindset.  Some will disagree, but I am not a fan when green attorneys come into an interview and say that they want to work in a single area of the law.  Of course, if you are interviewing at a practice that works in that one area, that’s great.  If you are coming to a diversified practice, it is OK to mention that you enjoy certain areas, but generally you want to go in with the mindset that you want to come in and help the team in any way possible.  When you start bringing in business, that is when you can declare the practice area you want to focus on. 

2)   Never Disparage Your Former Employer.   Most young attorneys transition from one job to another because they are dissatisfied.  Dissatisfied with money, the type of work, amount of work, personalities, or a combination of these.  Your prospective employer knows this, so there is no need for any disparaging remarks.  First, the legal community is remarkably small, and word tends to spread around fast.  Second, someone at your prospective employer may know the person or persons you do not care for,  so you may find yourself putting a your foot in your mouth quickly.  Finally, attorneys revere the collegiality of the profession.  We generally know who most of the few bad apples are, no need to highlight it for us!

3)  Follow up.  Within a few days of your interview, send follow-up e-mails to the individuals you spoke with.  Include some sort of personal touch indicating that you were paying attention to what the interviewer was talking about.  (i.e., “I saw Auburn won last weekend, you must have enjoyed that!”).  In an atmosphere where many of the discussions must sound the same after a few interviews, it is impressive to see when candidates are actually focused on the individual connections they make over the course of a 15-30 minute discussion.

I hope these help!!!

Tips for Young Attorneys- Deposition Prep Part 3: Experts

August 31, 2011

Welcome back to our series on preparing for deposition.  Today we will move into a intimidating area — expert witnesses.  Adverse experts are so menacing because without exception, they know more about what they’re talking about than you do no matter how much preparation you perform in advance of deposition. 

However, you’re not powerless to draw some blood in deposition.  Here are some tips to help:

1) Heavy reconnaisance; obviously, but what kind?  While I cannot become more of an expert than a doctor or an engineer, I still need to know some basics.  Typically, you should have the basics of the expert’s opinion in advance of deposition.  So, you will want to review some secondary sources to see if their opinions are widely held.  Another great tool is obtaining transcripts of the expert’s prior depositions to see if their current opinions contradict prior ones.  Idex is a great third-party source of these.  You can also contact attorneys involved in their prior cases and see if they will provide you the expert’s deposition, as experts often must provide a list of cases in which they have testifed.  You would be surprised how often experts contradict themselves.  After all, they are being paid to provide a certain opinion.  Also, all the same social media and criminal background checks apply. 

2) Setting reasonable goals.  You will rarely get an expert to change their opinion to side with your client’s position.  Still, you can garner some key admissions without having them switch sides completely.  First, you have the easy ones:  1) getting paid to be here; 2) you would not testify today unless I paid you; 3) you have never met/examined the Plaintiff.  Also, you will sometimes encounter experts who draw conclusions based on your opponent’s side of a disputed fact issue.  For example, say the case involves a disputed issue about whether a material fact was disclosed prior to a business transaction.  The opposing expert may have an opinion such as “Company X was right to renege on the agreement after it realized that Company Y did not disclose Z.”  Well, when did this expert become the trier of fact?  An effective line of questioning will get the expert to admit that 1) the parties dispute whether Company Y disclosed Z; 2) If the expert’s assumption about the fact issue is wrong, their opinion on the matter is moot; and 3) the expert is not here to opine on fact issues. 

We will have some more expert depo prep tips next week!

Belated Monday Practice Tip for Young Attorneys- Deposition Prep Part 2

August 23, 2011

Hope everyone had a great weekend!

Last week we doled out our first two tips for preparing for deposition.  We have a few more for you today!

3) Do some major reconnaisance on the witness.  We are frequently shocked at how much information is available on the internet, yet we forget when to use it!  Many attorneys prepare for deposition by reviewing written discovery such as interrogatory responses and/or documents that have been produced in discovery such as medical records.  If this is all you do, you are selling yourself way short.  At minimum, you should be running criminal background checks, google searches, facebook searches, twitter searches, asset searches, and anything else you can think of, particularly on the social media front.  Ever notice how many people can’t so much as go to a restaurant without tweeting about it or posting photos on Facebook about it?  What if you had a personal injury case with a Plaintiff saying they’re physically incapable of anything, but then you find on their Facebook page photos of them on a jetski the previous weekend with a big smile on their face?  Wouldn’t that be a nice weapon to pull out in deposition?  One that your opposing counsel may not see coming?   

4) No such thing as “saving it for trial.”  You won’t find universal agreement on this.  Some lawyers like to save their most dangerous ammo for trial, when the jury’s in place and the witness has no idea the question is coming — the fabled “Perry Mason Moment.”  In reality, these moments are a pipe dream.  98% of all cases settle before trial.  A successful handling of the case is more often a favorable settlement at mediation than it is jury verdict.  Accordingly, in this day and age the strategy should be to exact leverage now, not to save it for some hypothetical Perry Mason Moment.   Not to mention, there’s nothing worse than thinking you have an invincible question and having a witness calmly avert your trap.  The Perry Mason Antidote is more hurtful than the successful PMM is helpful!  The lesson:  save nothing for trial.  Fire your bullets now. 

We will be back next week with some more tips!

Monday Practice Tip- Depositon Prep, Part 1

August 15, 2011

Hello all, and hope you had a great weekend!  We are returning to our original schedule starting today with a practice tip for young attorneys.  Over the next few posts, we will discuss some tips for helping you take good depositions.  We will reserve special tips for deposing doctors and expert witnesses for separate posts, but rather focus now on tips for deposing fact witnesses, including the opposing party.

1) The first thing you should ask yourself before drawing up your outline is . . .    “Can I lead this witness?”  There are many occasions at trial where, for one reason or another, you may have to read a deposition into evidence.  Accordingly, you should apprach a deposition with the mindset that these questions and answers may get read to the jury.  Attorneys with any level of experience know that at trial, favorable witnesses are examined with non-leading questions, while adverse witnesses are examined with leading questions.  Attorneys are the star when you are leading, while the witness is the star when you are not leading.  You want to be the star as often as possible!  So, when deposing a fact witness, think to yourself, is this someone that is favorable or adverse?  If adverse, lead the witness as much as possible!    On the flip side, as discussed in an earlier post, many attorneys are under the false impression that they can lead any witness on “cross-examination” in deposition.  This is false.  If you take a deposition of an adverse witness like say, the Plaintiff, and his attorney starts asking leading questions on “cross,” object to the form each and every time.  The attorney may get impatient and insist that they are permitted to lead the witness on “cross-exam,” but just keep objecting.  If you don’t object, you have waived those objections at trial. 

2) Properly define your goal.  When asked what the purpose of a deposition is, most newbies respond with something like, “to gather information.”  Incorrect!  At most, fact-gathering should consume about 25% of your deposition.  The real goal in a deposition is to put the case in a summary judgment posture, a partial summary judgment posture, or where not feasible you should at least be looking to obtain as many key admissions as possible.  If you go into a deposition, particularly that of an adverse party, without carefully thinking about the wording of your questions, a well-prepared witness will eat you alive with a barrage of “not that I can recall”‘s and “I don’t remember”‘s. 

We will be back next week with some additional tips! 

 

Monday Young Lawyers Practice Tip- How to Treat Your Assistant

August 2, 2011

Two Monday practice tips on a Tuesday?  You betcha!  We may be late but you won’t get cheated, I promise you that!

In my previous post about calendaring, I alluded to training your assistant on what is important, which also gave me the idea to do this post on training your assistant or secretary.  Here are a few tips to maximize the attorney-assistant relationship:

1) Forget the Mad Men crap.  I’m not even talking about the sexual harassment part, which is too obvious to even bother with as a practice tip.  I’m talking about the mentality.  The superiority complex, the chauvinism (where applicable, as not all executives are men and not all assistants are women!), it’s a relic of the past and get it out of your head.  Treat your assistant as a professional, go fix your own damn cup of coffee, order your own flowers for your significant other, and don’t be afraid to grab your own stuff off the printer once in awhile.  Your assistant can help you in more important ways than that.

2) The “Come to Jesus” meeting.  I’m a big fan of having a meeting with my assistant on the first day of our new business relationship.  As I mentioned in a previous post, I have had five assistants, and each time I start a new relationship I like to sit down and explain what is expected of them, what is most important to me as an attorney, how I see their role fitting into my practice, etc.  I open the floor to questions as well.  The attorney-assistant relationship is very much a personal service one so it is important for your assistant to know what’s most important to you.

3) Treat them as a teammate, not a subordinate.  To get respect you usually must give respect.  My assistant handles a lot of vital parts of my practice.  While those parts do not require three years of law school training, without them I could not function, and I continually mention my appreciation for that fact.  You want an assistant who feels like they are part of the team, not a droid sitting at their desk waiting for instructions until 5 p.m. 

4) Lighten up, Francis.  The best line of the movie Stripes is dedicated to this bit of advice-  only lose your cool over effort-based mistakes as opposed to execution-based mistakes.  We all make mistakes, even you.  Lazy errors can’t should not be tolerated.  The rest should call only for constructive counseling. 

Monday Practice Tip for Young Lawyers- Using Your Calendar

August 2, 2011

Hello all, and welcome back to the blog, where the space time continuum ceases to exist and we can provide your Monday posts whenever we feel like it!   I owe you two of these tips, and we will get to one now about how to effectively use your calendar.

Every firm, large and small, presumably has a software program that keeps a calendar.  Some of the more popular ones are Microsoft Outlook and Time Matters.  Everyone has these things but not everyone knows how to use them.  Here are a few tips:

1) Never look at the “daily” calendar!  These programs’ calendar functions usually allow you either to look at the day, the week or the month (and sometimes beyond).  The prudent young lawyer does not live day to day, he lives week to week or sometimes month to month.  When you get to the office on a Monday morning, you should have a working knowledge of everything that must be completed the entire week, including appointments that may eat up your time.  You should also be aware of all other significant hearings and deadlines for the next 30 days.  Many judges these days require courtesy copies of all motions a week or more in advance of a hearing.  You don’t want to be the guy causing unnecessary overnight delivery costs because you are not looking ahead on the calendar (in fact you should be calendaring dates to send courtesy copies too!)

2) Train your assistant!  I have worked with five different assistants in my eight years of practice.  Whenever I am assigned a new assistant, I sit down with them on their first day, often over lunch, and before that meeting is over my new assistant is well aware that keeping the calendar precise and up-to-date on a daily basis is their #1 priority.  In fact it’s important enough to be their #1, #2, and #3 priorities.  This sounds obvious but it isn’t.  Assistants often are have more to do than they have time to do it, leaving them to triage to-dos and leaving some for the next day.  It’s important for them to know what’s most important to you.

3) Don’t assume your colleagues are looking at your calendar or even their own!  For various reasons, don’t ever take the calendar for granted with respect to your colleagues.  Don’t ever assume they know you’re going to be on vacation even though you put it on the calendar, and don’t ever assume they’re as aware of upcoming deadlines just because they’re on the calendar.  The calendar is no substitute for traditional communicating. 

Monday Practice Tip- Procrastination Amidst Collaboration

July 18, 2011

Hello all, and welcome back for your second post of the day and your Monday Practice Tip for Young Attorneys.  Earlier today according to my site stats, someone found my blog by Googling “Man Feel Guilty.”  And man, do I feel guilty when I don’t post on time, so here we go!

Last week in my practice tip post, I gave a little cliffhanger about an anecdote that I wanted to use for a blog entry.  Well today is your lucky day!  A few weeks ago, I was handling some pre-trial materials in a federal court case.  As many of you probably know by now, federal cases are handled quite differently from state court cases, the biggest discrepancy being that in federal court, the deadlines actually matter, as do the precise instructions in any court order.  This is not a knock on state court judges.  The fact of the matter is, state court judges typically are just too overwhelmed docket-wise to hold parties to the fire when it comes to deadlines.  In federal court, though, you better be ahead of the curve.

Anyway, in my case the parties were jointly responsible for filing a document by a given date.  As that date approached, I chipped away at my portion of the document day by day, figuring I would cruise to timely filing.  Boy, did I have it all wrong.  Not only did I not have my materials done until around 7 or 8 in the evening, but my opponents were running even later!  Long story short, I was in the office until about 12:15 am that night by the time we got the document filed.  Mercifully, the Court has not rung our bell for not getting the document filed before midnight.  (I hold no grudges with regard to my opposing counsel, by the way, because you never know what obstacles someone else is facing.  I was not in their office, so how could I judge how they handled it?

The point is not so simple as “Don’t procrastinate” because we have all heard that one,  we all generally do our best, and we all inevitably fail at it every so often.  The point is more acute — don’t procrastinate when you do not control all the variables.  In this instance, I should have been in touch with my opponents 2-3 weeks before the deadline and told them that we absolutely need to have it done 3-4 days in advance of the deadline because of all the complications that could arise.  Instead, thinking I had the project under control, I was in so late that the security dude turned the lights off on me!  Don’t let this happen to you 🙂