The Trial Practice Tips Weblog

Getting the Complete Story from Your Client

Here's a tip from Ashley Lipson's Guerilla Discovery. To insure you're getting the full story from your client, try asking a question something like the following:

I know that you've told me the truth and I believe you. But we have to prepare for those lying S.O.B.'s on the other side. What kind of lies are they going to tell? Tell me what lying description of the events they are going to tell so I can prepare for them.

Lipson suggests this question for deposition preparation, but it might also be useful during initial client interviews. According to Lipson, it's likely you'll hear some things from your client you didn't know before--things you'll need to know about your client's case before getting in too deep.

Another Trial Tips Weblog

Some recent posts at TrialLawyerTips.com, which is primarily plaintiff-oriented:

• "Wrap Up Your Voir Dire With These Questions"
• "Blow Up and Use Your Verdict Form in Closing Argument"
• "During Closing Argument, Always Remind the Jury That This is Their Only Opportunity To Right a Wrong and To Compensate Your Client For Her Losses"

Thanks for the heads up to the weblog's authors, Mitch Jackson and Lisa Wilson.

Motion Practice: Quit When You're Ahead

A good, and very true, reminder from Legal Blog Watch: "Rule 1: When the Judge Agrees With You, Stop Talking."

Can you believe that some lawyers violate this rule? Most likely, they're not listening.

See below, #3.

Related posts:

1. "Look at the Judge, Not Your Opposing Counsel"

2. "Arguing a Motion Before a Trial Court: Begin at the Beginning"

3. "Motion Hearings: Listening to the Judge"

Improving Your Motions for Summary Judgment

Here are some tips for defense lawyers on summary judgment from Michael Reitzell’s: "Focus on the Material Facts for a Successful Motion for Summary Judgment" (pdf). 

Link from the (new) legal writer.

Related posts:

1. "An Entertaining Discourse on Summary Judgment?"

2. "Discourse on Summary Judgment, Part II"

3. "Discourse on Summary Judgment, Part III"

Jury Selection: a List of Rules

At Mark Bennett's Defending People, you'll find "Simple Rules for Better Jury Selection."

The post is self-explanatory. Add it to your list of jury-selection references.

Views on Trial from a Veteran Trial Lawyer

On his weblog Plaintiff Trial Lawyer Tips, Paul Luvera has published a list of "personal views" about trials, titled "My General Views about Plaintiff Trial Work."

Some of the questions that are answered in the post--

• How a high-low agreement changes trial strategies;
• Should you be chummy with your opponent; why or why not?;
• Who typically wins cases perceived as "complex"?; and
• How a lawyer's ego can get in the way of winning.

Luvera's views are interesting and worth reading.

Metadata Update: Views from Around the U.S.

The ABA's Legal Technology Resource Center has published an article titled "Metadata Ethics Opinions Around the U.S." The jurisdictions included are--

• Alabama
• Arizona
• Colorado
• Florida
• Maine
• Maryland
• New Hampshire
• New York
• Pennsylvania
• Vermont
• Washington, D.C.
• West Virgina

Links to the source documents from the various jurisdictions are included, as is a link to the ABA's own opinions on the metadata issue. A chart answers the following questions for each jurisdiction:

• What is the sender's duty when transmitting metadata?
• May the recipient review or "mine" metadata?
• Must the recipient notify the sender if metadata is found?

Finally, a number of past posts I've done on the metadata issue can be found at the end of the post "New ABA Ethics Opinion on Metadata" at Legal Underground.

Illinois: New Ethics Rules

From the Illinois Bar Journal: "Get Ready for Illinois’ New Rules of Professional Conduct," by By Robert A. Creamer--

On July 1, the Illinois Supreme Court announced adoption of a new set of rules of professional conduct for Illinois lawyers that take effect January 1, 2010. This article describes the background of the new Rules and highlights significant changes. The new rules are available on the court’s website . . .

The article is recommended for Illinois lawyers. Meanwhile, the ISBA is offering CLE programs about the new rules--the programs in Springfield and Carbondale are coming up.

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 (yet 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. The 48 other podcasts I did before giving it up can be found here.

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

A Digression for Law Students: Outlining and Exam-Taking

Even though I graduated from law school way back in 1990, the outline-making and exam-taking experience is something that is, unfortunately, impossible to forget. That's why I wanted to point out a few useful posts:

• "Outlining 101: On Figuring Out What This 'Outline' Thing Is, Anyway." This is a recent post in which the author of the weblog Thanks, But No Thanks explains an outlining method that works.
• "This Weblog Is Going Downhill Fast: A Post About Issue-Spotting on Law School Exam." This second post, which I wrote for Legal Underground, explains my method of using the outlining process as a way of preparing to issue-spot on law school exams.

Finally, there are a number of other tips for law-school success at the Blawg Wisdom weblog, which isn't updated anymore but which contains tons of stuff in its archives.

iPhone and Smartphone Apps for Lawyers: Update

From the ABA Journal: "70 Sizzling Apps Pump up your PC, PDA and smartphone with these lawyer-friendly favorites"--

Apps: It’s a little word for those mini-programs that can pay off big in productivity, knowledge or just plain fun. And they come at all price points, from expensive-but-worth-it to absolutely free.

Whether you’re a born techie or a reluctant one, you, too, can harness the power of technology with these 70 apps lawyers are sure to love.

The article gives all the details. Meanwhile, there's other interesting iPhone news at iPhone J.D., "In the news," where I first read about the article in the ABA Journal.

Related posts:

1. "Best iPhone Applications for Lawyers"

2. "Carry the Rules With You On Your iPhone"

Getting Documents into Evidence at Trial: Basic Procedural Steps

In introducing documents at trial, there are four important hurdles to overcome--that is, four important questions to answer.

• Is the document authentic?
• Is the document relevant?
• Does the document violate the hearsay rule?
• Does the document violate the best-evidence rule?

When these questions are answered, you have "laid a foundation" for the introduction of the document into evidence. These questions are generally answered by witness testimony.

If the document has not been pre-marked, a lawyer begins the process by saying something like, "Your Honor, may I have this document marked as Exhibit 1 for identification?" The "for identification" tag indicates that the document has not yet been admitted into evidence. It should be used until the judge has ruled on admissibility.

Next, the lawyer will ask questions of the witness (or witnesses) that will get the document over the four hurdles mentioned above. These questions and answers will differ according to the type and content of the document. There are many resources available that describe the substantive requirements for different types of documents.

After laying the proper foundation, the lawyer will offer the exhibit into evidence. The opposing lawyer may interpose objections at this point, after which the judge will rule on the document's admissibility.

Cross-Examination: Some Representative Posts

Over the years, I've done almost fifty posts on cross-examination. The easiest way to find them is in the weblog's cross-examination category.

Some representative posts:

• "Scott Turow's Five Essentials of Cross-Examination"
• "Cross-Examining by Body Language and Tone of Voice"
• "Cross-Examination at Trial: Just Say No."
• "Craft a Cross-Examination Using the Witness's Own Documents." 
• "Where and How to Stand During Direct and Cross-Examination"
• "Cross-Examining the Liar at Trial: Two Absolute Prerequisites"
• "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial."

To make this weblog easier to navigate, almost every post has been assigned to one or more categories. These categories are listed in a column on the weblog's left side.

In addition to cross-examination, you can find categories for legal writing, depositions, voir dire, opening statement, evidence, experts, closing argument, and many other topics.

Help for the Lawyers with Depression

Here's an off-topic post as a public service.

Lawyers with Depression is a website "created for lawyers with depression by a lawyer with depression." Its founder, Daniel Lukasik, writes--

Since I launched [the site] two years ago, it has gotten national, statewide and local attention and been featured in The Wall Street Journal, The New York Law Journal, The ABA Journal, The National Law Journal, Trial Magazine and many others. I am also writing a book about depression in the legal profession that's going to be published next year by the ABA.

Lukasik also maintains a weblog about lawyers and depression.  It's there that Lukasik answers such questions as "Is There Any Room for Kindness in the Law?"

Please take a look.

Related post at Legal Underground: "Depression, The Lawyers' Epidemic: How You Can Recognize the Signs."

Who's Reading Your Email? Whose Email Are You Reading?

If you work for a large organization, you might find this article a little creepy. "What your emails say about you: Our electronic trails are powerfully revealing – for those who can decode them."

Although the article has only a cursory relation to the topic of this weblog -- it mentions e-discovery --  it might be relevant to lawyers for other reasons. The article profiles a company called Cataphora that "tries to model what an 'effective' employee looks like based upon her electronic trail." For example, Cataphora can look for "who's using all-caps (typically a sign of high emotion) or who is communicating with people on a distant part of the org chart – a relationship that makes no organizational sense."

And there are some law-related applications:

Over the years, Cataphora has helped out in many cases where it's useful to know whether an employee is thriving within the company. This may indicate whether he will be a co-operative witness. Or take the example of a whistle-blower. While it's against the law to conduct a witch-hunt and fire the whistle-blower, it's very advantageous to know, before you get into court, who the whistle-blower may be (i.e., is it someone in a position to give a lot of information to the government?). When dealing with these kinds of issues, Cataphora started with the basic tradecraft assumption that a happy employee is unlikely to cause problems.

Want to know more? Here's a link to Cataphora's website.

Next Year in My Deposition Book: Breach of Contract

The third yearly update to my book Deposition Checklists & Strategies is at the publisher, which means it's time to start on the next update. During the next year, I plan to write a new chapter, Breach of Contract, which will be added to other chapters with titles like "Products Liability" and "Insurance Coverage Disputes."

If you own the book (thanks in advance!), please send an email with any input or suggestions about the Breach of Contract chapter. The usual format is an overview of the law, a discovery outline, then some sample depositions. All emails are welcome.

Appellate Briefs: Examples

The task of writing legal documents is often easier if one seeks out examples to use as models.

To this end, the Seventh Circuit Court of Appeals provides access to briefs on its website.

Although you cannot search by topic, you can find hundreds of example briefs. The briefs are free and do not require PACER to access them.

To find these briefs, go to the Seventh Circuit Court of Appeals and look on the left side under "case information." Follow the link for "Briefs - 2007 + prior."

Related Posts:

1. "By Popular Demand, a Writing Sample."

2. "Self-Editing Tips for Legal Writers."

Illinois Lawyers: Can You List Your Specialties on LinkedIn?

In the LawPulse section of this month's Illinois Bar Journal, Helen Gunnarsson interviews experts about the ethics of listing specialties in a LinkedIn profile. There is a right way to do it.

Read here: "Social media and legal ethics May an Illinois lawyer list his or her 'Specialties' on LinkedIn without running afoul of Illinois RPC 7.4?"

The Art of the Reply Brief

At the (new) legal writer, Raymond Ward offers a "collection of articles on reply briefs" in response to a reader who complained in an email that "I have been unable to find any guidance with regard to developing an effective reply brief."

Ward's post merits a look. And Thanks for the link to Celia Elwell, a paralegal in Oklahoma City.

Related post: "Writing Tip: Draft Your Brief Before Reading Your Opponent's."

Interrogatories Before Depositions

Plaintiffs' lawyer Ron Miller has an informative post explaining why he serves interrogatories at the time he files a complaint, noting in part--

The advantage in first obtaining answers to interrogatories is that the answers should help the attorney determine who should be deposed, what questions should be asked of those deponents and what documents should be obtained in the case. Having the interrogatory answers, in some cases, also may tend to shorten the length of time required for the deposition. A possible advantage in taking the opposing party's deposition before serving interrogatories is that the party's deponent will not have thought out the factual and legal position thoroughly with the attorney and be as prepared as he/she might be otherwise.

As Miller writes, there's a split of opinion on this issue among plaintiffs' lawyers. The full post, which contains much additional discussion, is titled "When to Serve Interrogatories?"

Related post from Trial Practice Tips: "Depositions Before Interrogatories?"