The Trial Practice Tips Weblog

Technology at Trial: Some Basics

Here's a basic but useful article from Law.com's Legal Technology page: "At Trial, Don't Leave Technology Behind," by Jamerra J. Cherry--

You know you're ready for trial when you have two boxes of trial binders, work copy of records, note pads, pens and 10 extra-large trial boards. As you jump on the elevator with trial boards in one hand and your entire case on a pull cart next to you, you wonder, "Do I have everything?"

Products discussed in the article include Trial Director, CT Summation, LexisNexis Concordance, and Microsoft Powerpoint.

My Other Weblogging Project: The Legal Underground

My other weblogging project, The Legal Underground, is in its sixth year. The content is more wide-open and whimsical than Trial Practice Tips; some might say it's more fun.

I've taken an opportunity to arrange some of the content so that it looks less like a weblog and more like a book.

The result is this post: "The Sixteen Types of Lawyers, and Other Observations from a Lawyer with a Weblog: Inside The Legal Underground."

Please take a look.

Depositions Before Interrogatories?

Can a well-crafted set of interrogatories ever hurt your case?

In many complex cases, interrogatories served early in the case can educate your opponents about your case strategies at a time when you'd rather keep them in the dark. Moreover, when you serve the interrogatories on your opponents, you are requiring them to get up to speed on their own case strategies, perhaps sooner than they would have done so otherwise.

For these reasons, some lawyers like to depose the key witnesses before serving any but the most basic interrogatories. The idea is that you will deprive these witnesses (and your opposing lawyers) from some of the early-stage strategizing that often allows them to rehearse their answers in advance. With an element of surprise, you're more likely to get spontaneous and unrehearsed admissions.

Try it sometime and see if it works for you: depositions before interrogatories.

Source: Kenneth R. Berman, "Q: Is This Any Way to Write an Interrogatory? A: You Bet It Is," from Litigation magazine, reprinted in The Litigation Manual: Pretrial (ABA).

Editing Tip: Spell Out Numbers One to Ten, and Don't Repeat Them in Parentheses

Apparently, there used to be some formal editing rule that said you had to write numbers twice, repeating them once in parentheses, like this:

Before the consolidation order, there were more than eight (8) other, separate cases on file.

With the recent amendment of the class definition, the class size increased from three thousand (3,000) to four thousand (4,000).

You still see this number-repeating idea often in legal writing. It's not necessary. The better rule is to spell out numbers one to ten, use numerals for numbers higher than 10, and forget about repeating numbers in parentheses. The revision to the two examples would look like this:

Before the consolidation order, there were more than eight other, separate cases on file.

With the recent amendment of the class definition, the class size increased from 3,000 to 4,000.

Much easier to read, isn't it?

Source: Bryan A. Garner, The Winning Brief.

Deposition Tip: Use Exhibits Regularly During Video Depositions

You can create a more interesting and visually-compelling videotaped deposition by showing the witness an exhibit every so often. When you are preparing for trial, you can set up the video playback to display the exhibit on the screen as the witness is being questioned about it. This will break up the monotonous continuing screen-shot of the witness which becomes tedious after ten or fifteen minutes.

Source: Mike Rogers, "Practice makes perfect visual presentations." Trial, June, 2009.

Related posts:

1. "Tips for Video Depositions"

2. "Cross-Examining Experts During Depositions."

Use Your Opponent's Interrogatory Answers at Trial

Don't think of interrogatory answers as something to be forgotten after the initial stages of discovery are complete. Interrogatory answers often contain admissions that you can introduce into evidence at trial.

Part of every trial notebook is an "interrogatory" section (or more generally, a place for "admissions"). As you prepare for trial, go through your opponent's interrogatory answers and copy anything you might want to use later. These go into your trial notebook.

In most jurisdictions, interrogatory answers can be introduced by reading them to the jury.  A party's interrogatory's answers can also be used to impeach the party's in-court testimony. As an admission, the answers will generally be an exception to the hearsay rule. But the answer will not be completely "binding" on the party; the jury will still be given a chance to weigh the in-court testimony against the interrogatory answer.

Partial source: Model Interrogatories §121 , by Kevin R. Culhane.

Related posts:

1. "A Method of Organizing a Trial Notebook"

2."Trial Notebooks: An Alternative Method"

Cross-Examination: Tips from a Pro

I've written before about Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers, edited by Steven F. Molo and James R. Figliulo.

One of the contributors, Peter C. John, has an article titled "Cross-Examination and Jury Ego," in which he advises lawyers to "lead but don't feed." In other words, you should aim to paint a picture for the jury which allows them to draw their own conclusion, the one you want them to reach. But you shouldn't make this conclusion too obvious, since the jury's "jury ego" requires it "to find the answer based on their own evaluation of the evidence, not yours."

If you force-feed the jury, it could be counterproductive. For example, you can demonstrate that the witness has changed his testimony time and again, but you shouldn't ask the follow-up, "Were you lying then or are you lying now?" Jurors will get the point on their own.

If you own (or can borrow) the book, check out the article. At the end, John gives some other general tips, including the following:

• "If you can score ten points in cross-examination, prioritize and only use five of them for maximum impact."
• "Never belabor your point so that witnesses can gather themselves and finally explain an answer."
• "Control the testimony by your questions, not the witness's answers, especially with expert witnesses."
• "Do not change your personality from direct unless it is an honest disbelief from the testimony or actual surprise. False reactions are obvious to the jury."

In addition to John's article, Your Witness contains another 49 articles from Chicago lawyers, plus an introduction by Scott Turow.

Practice Tip: Don't Overdo the Objections to Your Opponent's Discovery

When you file objections to your opponent's discovery, don't get carried away. Never object to every interrogatory or production request.

It's an obvious tip, but there are lawyers who do object to every interrogatory or production request. These objection-crazy lawyers are offering their opponents a gift: A chance to get in front of the judge and say, "Not only did he make frivolous objections to Interrogatories 1, 2 and 3, but he objected to every one of my discovery requests."

Sound unlikely? I've been able to say something along these lines quite a few times in my career, and it never turns out badly for me.

If you're going to make an objection, don't do it unless you have good reason to believe you are in the right. Otherwise, you're just offering your opponent a chance to paint you as an obstructionist--and you'll probably have to answer the discovery anyway.

How to Improve Your Legal Writing

My small contribution to the area of legal writing includes three articles published in the Illinois Bar Journal, which you can find on my law firm's website--

• Improve Your Legal Writing with Five Simple Rules;
• First Drafts Made Easy;
• Five Steps Towards Persuasive Writing.

I enjoyed writing and publishing them -- I hope you'll enjoy reading them.

At the Blogs: Recommendations on Case Management Software, and More

Here are some notable recent posts from around the law-related blogosphere--

Case Management Software: "Update on Case Management Software" and "Trial Works Online Takes a Quantum Leap in Case Management," both from the South Carolina Trial Law Blog;

Learning to Use Tech: "New Episode of The Kennedy-Mighell Report Podcast is Now Available," from Dennis Kennedy (the podcast is titled Learn to Use NEW Technology: 101);

Voir Dire, Etc.: "The New Jury Expert Is Out, and I'm In It," at Deliberations;

Contracts: "Keep This Stuff Out of Your Contracts," at AdamsDrafting;

Manners: "Lawyer Etiquette: Is Your Blackberry Use Hurting your Reputation" at A Georgia Lawyer; and

Twitter as a Tool: "Mining Twitter for IP Information & News," at The Invent Blog.

Happy reading!

Best iPhone Applications for Lawyers

From the ABA Journal: "More Lawyers Getting iPhones, But What Are the Best Apps?" by Sarah Randag--

According to this year’s ABA Technology Survey, the availability of the iPhone at law firms is inching upward, which means that more lawyers are adrift on a sea of available apps.

The iPhone “barely registered” on last year’s survey, said Catherine Sanders Reach, director of the ABA’s Legal Technology Resource Center. Reach said that fewer than 5 percent of lawyers who provided brand names of the SmartPhones available at their firms cited the iPhone. This year, 14 percent did, making it second only to the BlackBerry, ABA Site-tation reported.

If you're an iPhone user, be sure to check out Jeff Richardson's weblog, iPhone J.D., which the article at the ABA Journal goes on to mention. Richardson also wrote recently about his favorite iPhone applications at Above the Law: "Top Ten iPhone Apps for Biglawyers." You'll find lots of good ideas there.

Related Post: "Carry the Rules with You on Your iPhone."

Depositions: Learn from the Old Pros

Here's a quick tip. If you want to ramp up your deposition skills, there's nothing like reading depositions taken by lawyers whom you respect. Lawyers in firms of all sizes have access to the firm's case files; look through them and copy depositions to annotate and study. Lawyers who work on mass torts or multi-district litigation usually have access to reams and reams of work product from other firms working on the same side of the case. A third source for transcripts are deposition banks like, for example, TrialSmith or the Miami-Dade Justice Association Depo Bank, to name just a few.

Related posts:

1. Tip for New Lawyers: Learn by Example
2. Learn from a Trial Transcript
3. A Deposition Tip for Young Lawyers: Learn from Your Mistakes

Cross-Examination: A Refresher

At his weblog Plaintiff Trial Lawyer Tips, Paul Luvera has been posting on cross-examination, always of interest to trial lawyers--plaintiff or defense.

Luvera has two recent posts:

Five Steps of Preparation for Cross-Examination. The five steps are fully explained in the post--

• Determine the goals.
• Divide goals into individual topics.
• Document the cross examination.
• Use Role Reversal.
• Divide the cross examination into chapters.

Basic Cross-Examination Principles. Again, these basic principles are explained in the full post--

• Make big points and ignore the details.
• Tell the jury what you just did.
• Approach cross examination from a big picture viewDon’t answer every defense issue.
• Be consistent and stick to the main story.
• Meet major defenses head on.
• The right to ask leading questions is a gift. Use it.
• Listen, listen, listen.
• When impeaching, make sure you lay a foundation first.
• Be Brief
• Make your point and quit.
• Be firm but fair.

If you like these two posts, Luvera also has a few other posts about cross-examination here, plus lots of other useful information on the rest of his weblog.

Deposition Tip: Don't Give the Witness a Chance to "Dis-Remember" an Event

Here is a simple tip for framing questions.

Once a lawyer has established that a witness was present at an event, he or she might ask a poor follow-up question along these lines: "Do you remember what happened?" 

Other versions of the wrong way to follow-up--

"Do you recall ... " 
"Are you able to remember ..."
"Can you recall ..." 

Questions like these too easily give the witness an opportunity to evade by answering, "No, I don't remember."

There's no need to give the witness a choice not to remember. Instead, get to the point: "Tell us what happened at the meeting on May 6" or, simpler yet, "What happened at the meeting on May 6?"

Some witnesses may not remember what happened. If not, they'll let you know. In the meantime, there's no reason to invite the witness to "dis-remember" in the way you ask the question.

Source: Ashley Lipson, Guerrilla Discovery §10.52 (James Publishing)

Writing for the Court: Control Your Outrage and Scorn

Here's a worthwhile post from Maxwell Kennerly's Litigation & Trial weblog: "How To Write Your Brief So That The Judge Will Hate You."

Kennerly's post came about like this. First, Kennerly read an article about a judge who wasn't happy with a tone of a lawyer's brief. Next, Kennerly went on PACER and found the offending brief. On his weblog, he highlighted some of the places where the brief's tone was suspect and made the whole thing available by clicking a link.

The offending brief includes a lot of vitriol and sarcasm aimed at the other side: it snidely says the plaintiffs (two legal professors) were motivated to sue by mere "unhappiness," says their claims are hard to understand, accuses them of "feigning injury," says they are wasting the court's time, and calls their action "obviously unmeritorious."

Does it sound like a lot of briefs you've read in your career? At the end of his post, Kennerly gives this advice:

Outrage and scorn are not wholly forbidden in front of a judge or a jury but you have to earn it.

An opening brief filled with sarcasm will perturb a judge doing his or her best to reserve judgment until they've heard both sides just as much as an opening statement filled with indignity will repulse a jury doing their best to be fair and impartial until they've heard all of the evidence.

Kennerly's post stands as a good reminder to all of us who write for judges--judges who are always more interested in the facts and the law than our own belly-aching about the other side.

Keeping Up with Tech for Lawyers: Some Resources

If you're a tech junkie like I am, you probably like to keep up on the latest tech news for lawyers. Here are some resources to keep in mind:

• DennisKennedy.blog
• iPhone J.D.
• PDF for Lawyers
• Digital Workflow
• Dennis Kennedy's tech columns in the ABA Journal
• FutureLawyer
• This Week in Law (podcast)
• TechnoEsq
• Law.com Legal Technology
• Law.com In-House Tech
• Law.com Legal Technology White Papers
• Law.com Legal Technology Downloads
• Mac Litigator
• Mac Lawyer's Notebook
• MacLaw Online
• ISBA Legal Tech Newsletters
• Law Tech Guru Blog
• Digital Practice of Law
• ABA TechShow Blog
• The Mac Lawyer
• Acrobat for Legal Professionals
• Apple site for lawyers
• Home Office Lawyer
• The Trial Technlogist's View

If you know of other sites like these, please send me an email or leave a comment. (Meanwhile, why aren't there any resources dedicated solely to "cloud computing for lawyers"? It's some Internet space that's ready to be snatched up!)

Plaintiffs' Lawyers: How to Prepare for Your Client's Deposition

Your client's deposition can make or break a case. Because of its importance, always plan to do too much preparation, rather than too little.

Here is a suggested procedure:

• A few weeks before the deposition, send your client a letter with pre-printed materials explaining the deposition process, what you expect the client to do, and what the client should bring to the deposition (e.g., requested documents).
• Meet with the client, not once but twice. The first meeting should take place a week or so before the deposition. The second meeting should take place the day before (or the same day).
• Plan to spend at least two hours in the first meeting. Here's a checklist of points to cover:
  • The purpose and use of the deposition ("it's the other lawyer's chance to hear your story. Once you tell him, you won't be able to change the details later");
  • The layout and procedure--what the client should wear, who will be present, where people will sit ("I'll be sitting right next to you"), how the deposition will begin, the court reporter's role, etc.;
  • How to answer questions ("listen to the question, then answer only the question that was asked"; "don't volunteer"; "if there is silence, don't think you have to fill it up"; "'I don't know' and 'I don't remember' can be acceptable answers, if true"; "the deposition isn't a test to see if you remember dates, just do the best you can");
  • What your client has said previously about the facts of the case--interrogatory answers, letters, documents, medical records;
  • What others have said about the facts of the case as it pertains to your client's testimony;
  • How you expect the questioning to go; 
  • Common pitfalls--arguing with the opposing lawyer, exaggerating small details. (Credibility and a good demeanor are keys to a successful deposition.)
  • Do some role playing in order to give your client confidence that he or she will be able to get through the deposition;
  • What your client should do when you object ("give me a chance to object before you answer, and listen closely if I make an objection");
  • Areas that you think will be a problem for the client;
  • Areas that are important for the case that you think will be asked (for a plaintiff, "What are your physical complaints?" and "What were you once able to do that you can't do now?").
• In the second meeting, ask your client if he or she has questions, then do a review of the first meeting, with an emphasis on how to answer questions, particularly problem questions that you anticipate will be asked.

An ill-prepared client can wreck a case. When it happens, it's usually the lawyer's fault.

Don't just prepare for your client's deposition--overprepare.

Related posts:

1. "Preparing Witnesses for Depositions: Here's a Step That's Often Forgotten."

2. "Defense Lawyers: How to Prepare Witnesses for Depositions."

3. "Testifying at Trial: Don't Let Your Client Make These Disastrous Mistakes."

Researching Medical Experts Online

At the James Publishing weblog, Dorothy Clay Sims has a book excerpt titled "Checklist for Researching Defense Doctors," which includes a number of tips that will work for researching doctors hired by either side in a case.

Sims lists these sites, among others--

• ALMexperts.com
• Florida Med-Mal Claims Information
• Florida Office of Insurance Regulation
• AMA Links to State Medical Boards
• National Register of Health Service Providers in Psychology
• PubMed
• Google Scholar
• Amazon.com

To get the specifics as to the best way to use these sites (as well as some other sites I omitted from the list), you should read the full post.

Sims' post also also includes detailed instructions for using eight different databases within Lexis for researching medical experts. Sims' book is titled Exposing Deceptive Doctors.

Tips for Locating Missing Witnesses

Although you can always hire someone to do your "skip tracing" for you, online resources often make it easy to find missing witnesses yourself. Some tips and ideas:

• Ask family, friends, and neighbors. If you have an address for your missing witness, neighbors will be easy to find. To find family, use a Google search beginning with the word "phonebook:" This search term will help you find people with the same last name living in the same city, zip code, or state.
• Make inquiries with licensing agencies. This tip will work for people who work in professions in which licensing is required.
• Try public resources such as property and voter records.
• Make use of the Internet. An article at About.com, "Find People on the Web," lists ten free web resources for finding people, including reverse look-up and military search tools. You'll find hundreds of other resources at the "Skip Trace Portal" at the PI Mall.

Finally, as the authors note in "Locating Elusive Witnesses," cited below, always make sure that you have the correct, full name of the missing witness, including suffixes like Jr. and Sr.

Partial source for this post: "Locating Elusive Witnesses: An Introduction," by Peggy Shapiro and Perry Myers, Illinois Bar Journal, July 2003.

Deposition Podcasts: Advanced Techniques

For free deposition advice, why not try my three podcasts on advanced deposition techniques? Originally posted Legal Underground, I'm reprising them here (again). Just follow the links--

Advanced Deposition Techniques #1: Five Tips for Asserting Control at Depositions

Advanced Deposition Techniques #2: Four Ways to Use Psychology at Your Next Deposition

Advanced Deposition Techniques #3: Miscellaneous Tips for Expert Depositions

Combined, these three podcasts have now had nearly 3,000 downloads. You can listen on a computer with speakers or even better, on any iPod or mp3 player.

If you like what you hear, don't forget my book: Deposition Checklists & Strategies (James Publishing, 2d Ed. 2007).