The Trial Practice Tips Weblog

Blawg Review #322

Get caught up on the blawgosphere with Blawg Review #322, by Kevin A. Thompson at Cyberlaw Central.

Litigators: Excel at the Basics

Here's a good post from Max Kennerly at Litigation & Trial: "How To Excel At The Basics As A Young Litigator," which includes a list of five "basics" and tips for excelling at each.

Depositions with an iPad, Document Edition

Compare these two recent posts--

On April 11, Jim Dedman, in a post at NC Law Blog, described how iPads might be used to do away with paper exhibits at depositions. He concluded, "Someday, though, someday, we’ll be able to arrive at the deposition with just our laptop or tablet . . . But, alas, that day has not yet arrived."

Just two days later, Jeff Richardson at iPhone J.D. brought news of this very development:

I took a deposition yesterday in which the witness had produced thousands of pages of documents. In the past, that would have meant lugging tons lots of boxes and binders to the deposition. Instead, I just put everything on my iPad. I used Apple's Numbers app to read some Excel files. The PDF files went in to my Dropbox account, and while it took over an hour to sync almost 2 GB of data to GoodReader, everything worked great once it was there. Searching for a term in a 2900 page PDF file was slower in GoodReader than it would have been with a laptop computer, but it was fast enough for what I needed during the deposition. It worked great, and reminded me (once again) of why the iPad is such a great litigation tool.

Read both posts in full for more good ideas about the use of iPads at depositions.

Appellate Argument and a Judge's "Motivating Principles"

From Persuasive Litigator: "Aim Your Oral Argument at Your Judge's Motivating Principle"--

The essential lesson is that you need to adapt to your audience. But the legal arena, with its emphasis on the neutral standards of law, can sometimes trick advocates into a belief that success just depends on the correct application of law and facts. Without an appreciation of the uniqueness of your decision maker, however, you aren't really persuading. This post takes a look at this principle as it relates to Justice Kennedy's dialogue in the healthcare oral arguments.

The full post explains a three-step process for aligning your argument with a judge's motivating principles.

Trial by Agreement

From Forbes: "Litigator Pushes Mutual-Disarmament Pacts To Cut Costs," which is about Houston lawyer Steve Susman--

He’s built a website, Trial by Agreement, that provides a sort of 0pen-source repository of pre-trial agreements that lawyers can use to reduce the often needless expense of electronic discovery, depositions and tit-for-tat motions. Susman himself has used these agreements for years, including in a 2009 trial that resulted in a $179 million jury verdict for his clients against billionaire Harold Simmons and his NL Industries. He wants lawyers to download them for free, modify them, and adopt them as a way to speed up trials and hopefully slow the shift toward arbitration and other less costly ways of settling fights.

I orginally saw the link at Overlawyered. When I return from Argentina, I'm going to study Susman's website very closely . . .

Preparing for Oral Argument

From Lawyerist.com: "How to Prepare for Oral Argument," by Sam Glover--

Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally-talented presenter, you can still improve. The important thing is to get away from your outline and use a more “modular” approach to oral argument.

The article continues by describing a comprehensive approach to preparing for oral argument.

Finally, here are some related posts from Trial Practice Tips--

"Oral Argument Tips from Someone Who Does It a Lot"

"Improve Your Oral Argument"

The Appeal Category

Banish These Words from Your Lexicon

At The Third Apple, Bill Wilson writes about "Legalese and other words to banish," including enjoin, "comes now" (a favorite target), and purported.

Timeout for Tech

Here are two posts from other weblogs worth reading:

"Review: TranscriptPad -- review and manage depositions on your iPad," by Jeff Richardson at iPhone J.D. Richardson reviews a new $50 iPad app called TranscriptPad, an app dedicated to the task of reviewing depositions. "With TranscriptPad on my iPad, I'm actually looking forward to the next time I have to review a bunch of depositions, and I don't believe I've ever said that before."

"CCCleaner - Clean House Today," by Rick Georges at Future Lawyer. Georges writes, "CCCleaner is a free software tool that will clean up your registry, erase files you no longer need, remove history, cookies and temporary files."

Legal Writing Tip: Remote Relative Pronouns

According to Bryan Garner, a remote relative pronoun is a "prime indicator of a sloppy sentence." A relative pronoun such as that or which is "remote" when it doesn't appear immediately after the noun it modifies.

Garner provides these examples:

Defendants knowingly conspired to bring securities onto the market that could not be legally marketed.

There is an outstanding warrant against Mr. Erutu in Ethiopia, which on its face declares that he is to be arrested for expressing his political beliefs.

Sentences like these cause confusion in the reader. In every case, the sentence should be rewritten so that the relative pronoun follows the noun it modifies.

Source: The Winning Brief, by Bryan A. Garner.

Related post: "Self-Editing Tips for Legal Writers."

Experts and Costs

A tip from Michael J. Wagner: When selecting an expert, don't automatically choose the expert with the lowest rate.

It there is a substantial reason for the higher rate, then the more expensive expert may be more efficient. Many experienced experts have higher rates because they have done the work before and can now do it faster . . . The result of somewhat higher rates and much greater efficiency may be a lower bill.

Source: "Expert problems," by Michael J. Wagner, The Litigation Manual: Pretrial (ABA Litigation).

Deposition Objections: Good and Bad

What deposition objections are proper? Which are improper? Find out at the Lawyerist: "Proper Deposition Objections."

And see this related post at Trial Practice Tips: "Objections to the Form of a Question: A Partial List."

The iPad and Jury Selection

At the Persuasive Litigator, Ken Broda-Bahm reviews two apps, iJuror and Jury Duty, "based on their functional ability to replace paper notes, or other PC-based systems." Link from iPhone J.D.

Cross-Examination: Tips from James R. Elkins

Cross-examination tips: A page of links from Professor James R. Elkins at the West Virginia University College of Law, including articles, videos, and book recommendations.

Legal Briefs: How to Make Them Shorter

From the archives: "Legal Writing: Is Shorter Really Better?"

Examining Witnesses: Tips from Pace Law Library

Recommended: A page from the Pace Law Library website titled "Examination and Cross-Examination: Getting the Facts," which includes a number of articles, orqanizations, and other resources that you can bookmark and review later.

Deposition Checklists and Strategies, Fifth Revision

The fifth revision to my book, Deposition Checklists and Strategies, has been published by James Publishing.

The new revision contains a number of new practice tips, a section listing practice tips by type and category, a long appendix featuring real-life deposition transcripts for study, and much more.

Here's a testimonial about the book from Ross Mann, an attorney whom I don't know, yet who was kind enough to email me last month about my book--

Your deposition book was INSTRUMENTAL in my first deposition. I proceeded to take my first adverse dep without ever having seen a dep in my life--and I had full confidence because I thoroughly studied your book. Thanks so much for the work!

You can view and print a detailed brochure about Deposition Checklists and Strategies at this link (pdf).

Telling Stories at Trial

"[E]excessive strategizing about trial advocacy is counterproductive," writes Max Kennerly of the Litigation & Trial blog in this paragraph--

All of which leads me to believe that excessive strategizing about trial advocacy is counterproductive, a product of our intuition leading us astray with psychological illusions like confirmation bias. Facts win cases. The minimum performance required for a trial lawyer to be considered competent is quite high (and there are many incompetent trial lawyers), and there are differences in style and performance that separate the great trial lawyers from the competent ones, but no one reasonable decision at trial ever sways the case one way or another.

The quote is pulled from the end of a long post about trial styles and story-telling: "Trial Lawyers As Storytellers, The Narratives Versus The Numbers." It's a useful read if you've been thinking about how to organize trial facts into a compelling narrative, and how much this matters to the outcome of your case.

Thinking About Going Solo?

From Keith Lee's Associate's Mind, "Review: Solo by Choice"--

[F]rom what I’ve read around the web, the general consensus for the best place for advice regarding going solo is Carolyn Elefant’s book, Solo By Choice (and her accompanying website, myshingle.com). With that in mind, I purchased a copy to see for myself.

The remainder of Lee's long post is a comprehesive review of Solo By Choice, which concludes "it's a fantastic book." (My own review of Solo By Choice, which has a similar conclusion, is here.)

Seven Tips for Opening Statement

From the New York Law Journal: "Opening to Win: Seven tips for delivering an effective opening statement," by David R. Marriott and Richard Sullivan--

While the opening statement occupies a small portion of most trials, it is difficult to overstate its importance in a jury trial. Done well, a lawyer's opening statement can shape the way jurors receive the evidence and create a lasting positive impression. Done poorly, an opening statement can put counsel at an early disadvantage from which it may be difficult to recover. Although there is no single formula for every case, this article outlines seven tips for delivering a winning opening statement.

In the full article, the authors make the following recommendations:

• Recognize the importance of opening statement;
• Argue without being argumentative;
• Tell your story;
• Focus on your key facts;
• Account for the bad facts;
• Use demonstrative and visual aids; and
• Communicate with conviction.

For details, read the full article. For other tips, see this weblog's opening statement category.

Depositions: Five Pointless Questions

From Michael P. Maslanka at Work Matters: "Five pointless questions to ask in a deposition," which concludes--

Once upon a time, I anguished over every answer to every pointless question. No more. A judge or a jury looks at a case from a 30,000 foot perspective. It is not about the trees; it is about the forest. It is not about the minutiae; it is about the broad narrative. So, take a breather.

A nice sentiment! See the full post for the pointless questions, about which Maslanka confesses, "I have sinned as to each."