The Chair’s Corner

Big Dog, Little Dog

By Robert A. Zupkus

D

avid and Goliath. Big dog and little dog. Favored to win and underdog. These verbal match-ups generate vivid mental images. They can apply to many contests in life. These images also carry into the courtroom.

Judicial jousts between large firms and solo or small firms are common. The presence of a large law firm representing one of the parties can certainly impact the complexity or cost associated with the journey to trial. The size of a legal team should not, however, determine the ultimate jury verdict. Remember, the prime directive to “keep it simple” finds a better, more nurturing home in the solo or small firm setting.

In analyzing the structure of a case, there are readily identifiable components. These include discovery, briefing legal issues, and the trial itself. Let us look at each area in turn.

Discovery rules can help the solo or small firm lawyer keep it simple. Some states allow a case to be removed from the full discovery process by certifying the amount in controversy is below a certain threshold, say $75 to $100,000. So be realistic about a case value if you are a small firm representing the plaintiff. If you do not check the threshold “box” on the initial pleadings, your case may be removed to federal court, with its inherent increased litigation costs. Conversely, if you check the box indicating a case value less than the federal diversity requirement, you may insulate the case from being removed by a large firm.

Most state courts have “presumed amounts” of discovery with reasonable limitations. This means that only upon a showing of good cause will written discovery or depositions in time and number be expanded beyond the “presumed amount.” As a small firm, you should strive hard to keep discovery limited to the basic amount. You should also set firm deposition time limits that fit the role of each witness. Do not, for example, take the easy route of agreeing to seven hours for each witness when only one or two hours will do. It is a large firm tactic to run the clock as long as possible and make a case unpleasant or unprofitable for a small firm. If your state does not have presumed discovery, find a neighboring respected jurisdiction that does. Create the case management order, arguing that those discovery rules should apply. Litigation should not be won on the field of discovery by the party with superior financial resources.

Most small firm practitioners learn that to win at trial, they do not need briefs or pleadings that would satisfy the criteria of the U.S. Supreme Court. They need one or two pivotal reported decisions and a credible story calling for fairness. Similarly, small firms do not need volumes of jury instructions to fully educate a small group of the lay community on the majesty and intricacy of the law. They learn that one or two guiding principals are needed to resonate with the collective common sense of the jury.

A briefing schedule and brief page limitations are a must. If your state does not automatically quantify such matters, you should strongly advocate limits in your case. Brief deadline and page limits work to the advantage of the time-beleaguered court. Reasonable limits will also keep the smaller firm from being scalded by large vats of molten pleadings poured upon it by the lords of the large firm keep. Note the availability of online brief banks that can speed the brief writing process for solos and small firms.

At trial be kind to the jury and yourself. Establish reasonable time limits for voir dire, opening statement, and closing argument. Do not waste this time with hyperbole and hypothetical questions. Come to the point. In voir dire, ask the jury what they actually think about important case issues. Do not ask them to think like you do about these same issues. It will never work. On open and close be prepared. Present your theme, state the important facts, connect all the dots for the jury and tell them why your client is in court and what justice your client needs. Sit down.

Do not create a witness exhibit book as large as the NYC telephone directory. Probably not one in a hundred jurors has read Tolstoy’s War and Peace. They will not read your version of it during their deliberations either.

Embrace technology. Use visuals on all key points in opening, close, and during presentation of evidence. This does not mean use visuals on all points. This will bore the jury. But make sure the visuals are large enough for the jury to see and read. Embrace technology but never let it lead the whole orchestra, if only because of cost or jury perception that cost means nothing to you or your client. Let the larger firm run wild with sci-fi technology and visuals that look like a Lucasfilm production. Keep your case to a simple theme with tightly focused technology.

Network your case issues or concerns on Internet communities such as SoloSez, which is sponsored by the ABA General Practice, Solo and Small Firm Division. This community has 3,400 subscribers. It converts a solo lawyer into a member of the largest virtual law firm in the world.

Be honest with yourself. Be honest about yourself. Be honest about the scope of the case you accepted to bring or defend. Evaluate the time and cost it will require to take the case to verdict. Never assume that your client’s complaint or answer will make the large firm and its client sue for peace.

If a particular case will require more time than you have hours in the day (or year) or cost more money than you can advance, be honest with yourself and your client. Associate with another lawyer or a small firm that can bring more available time and specialized experience to the case. Do not try to do it all alone, all the time, for a client. You will still take pride in knowing that you were indeed the small “firm” in the fray. And that sense of pride will be all the greater when you prevail for your client. Remember, the well-prepared, thoughtful lawyer will most often prevail. And only one lawyer at a time can speak in court. This fact is the great equalizer.

Robert A. Zupkus is Chair of the General Practice, Solo and Small Firm Division and a partner at Zupkus & Angell, P.C., in Denver, Colorado. He may be reached at .

Copyright 2009

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