1. Do What You’re Supposed to Do
After a particularly hard law school exam, my roommate and I were walking home when I thought out loud, “I am glad I studied hard.” Channeling his inner Chris Rock, my roommate exclaimed, “What do you want, a cookie?! You’re supposed to study hard!” (Chris Rock was, of course, more poignant: “‘I take care of my kids.’ You’re supposed to. . . . ‘I ain’t never been to jail!’ What do you want, a cookie?! You’re not supposed to go to jail. . . .” Chris Rock: Bring the Pain (HBO television broadcast June 1, 1996).) Do what you are supposed to do by developing and following a proper plan.
A “trial lawyer” is no longer limited to trials. Trial lawyers must also encompass the highly valued skills related to pretrial practice, discovery, arbitrations, mediations, and other methods of accomplishing dispute settlements. A serious trial lawyer, serious about his or her client’s case and, necessarily, serious about pretrial practice, discovery, advocacy, trials, and dispute resolution, will have a proper plan. Without a proper plan, a lawyer will inevitably be less effective throughout the entire case.
Not only does proper planning increase your ability to present the best case possible, proper planning also decreases mistakes that can lead to malpractice. According to the ABA Standing Committee on Lawyers’ Professional Liability, 49.3 percent of legal malpractice claims between 2004 and 2007 resulted from the following types of errors:
Planning error (8.9 percent)
Inadequate discovery/investigation (8.8 percent)
Failure to file documents—no deadline (8.6 percent)
Failure to calendar (6.7 percent)
Failure to know deadlines (6.6 percent)
Procrastination (5.9 percent)
Failure to react to calendar (3.8 percent)
Dan Pinnington, “The Most Common Legal Malpractice Claims by Type of Alleged Error,” Law Prac., July/Aug. 2010.
The figure of 49.3 percent is astonishing. Clearly, proper planning has an immense impact on the quality of a legal career. The good news is that proper planning is completely within a lawyer’s control and is the simplest principle to apply. A nuts-and-bolts plan that includes, at a minimum, the following will be helpful to young—and some old—trial attorneys: (a) learn about your judge, (b) properly calculate and meet deadlines, (c) determine what you need to prove your client’s case and how to get it, and (d) use 90-, 60-, and 30-day readiness checklists.
Conduct due diligence about your assigned judge. “The best way to understand a judge’s reaction[s] in court is to do your homework before [entering court] to learn about the judge’s temperament and pet peeves.” James M. Stanton, What Judges Want: A Former Judge’s Guide to Success in Court 33 (Dana DuTerroil ed., Texas Lawyer Books 2d ed. 2014). The same applies to courtroom procedure. Consult local bar resources to determine whether they publish pertinent information about your judge. Access your assigned judge’s web page, if there is one, and read the information provided by your judge. Speak with coworkers and other colleagues about your judge. Your colleagues, coworkers, and friends can provide a treasure trove of information regarding your judge’s tendencies and rulings on dispositive motions, discovery disputes, and continuances.
Is the judge proactive in moving cases along, or does the judge take a passive approach? Is the court hesitant to grant dispositive motions or other important motions such as a motion to strike an expert witness? What is the court’s approach to discovery? Does the judge give the parties wide latitude to conduct discovery, or will the judge entertain reasonable limitations on discovery? Determining the judge’s preferences on these issues will allow you to plan a strategy that keeps the judge and your client pleased from the outset.
Make sure all deadlines are calendared. Deadlines are essential in determining how to prepare your case. Missing deadlines is perhaps the easiest way to commit malpractice. To ensure all deadlines are calendared, first determine whether your court issues a standard scheduling order. If so, pull and review the order. If the court does not issue a standard scheduling order, determine the operative deadlines by consulting the governing rules of procedure in your jurisdiction, including local rules and court-specific rules that might set some guidelines.
In a passionately contested case, I obtained an order striking the other side’s motion for summary judgment because opposing counsel filed and served the motion too late, failing to take into account the deadline set in the court’s docket control order issued nine months prior and the court’s local procedures affecting hearing and submission dates. In the order striking the opposing side’s motion for summary judgment, the court highlighted the importance of local rules by taking time to handwrite the following:
Further, the Court wishes to note that oral hearings and submission dockets have always been held on Mondays during this Judge’s tenure.
Once you determine the applicable deadlines, you must calendar all deadlines with sufficient reminders to ensure you can meet those deadlines. Notice I said “you” and not your legal assistant or paralegal. Lawyers should take time to calendar their own deadlines. Years ago, I believed calendaring deadlines was a minor task best left to legal assistants or paralegals because, darn it, I had bigger things to worry about. Then I was “politely asked” by an attorney many years my senior, “What could be more important than making sure you, as the lawyer, correctly calculate and are aware of the deadlines affecting your cases?” If you miss deadlines, you likely won’t need to worry about the bigger things.
The Fifth Circuit Court of Appeals’ decision in Harris v. Boyd Tunica, Inc., 628 F.3d 237 (5th Cir. 2010), is a must-read for every lawyer who relies on his or her paralegal or legal assistant to calendar filing deadlines correctly. In Harris, the plaintiff lawyer’s paralegal skipped an entire month when calculating the filing deadline under the statute of limitations, and the lawsuit was not filed in time. The Fifth Circuit did not find that the paralegal’s mistake—and therefore the lawyer’s mistake—in calculating the deadline to file suit was excusable. Instead, the Fifth Circuit called the situation another “garden variety act of attorney negligence.” Id. at 240. Bottom line, the lawsuit was not timely filed and the failure to timely file was not excused.
Of course, mistakes and missed deadlines will occur despite lawyers’ best efforts, but there is little room for neglect as shown by Harris, especially with the advent of Microsoft’s Outlook and other electronic calendaring software. There is a reliable method that will lessen the chances a calendaring mistake lands at your feet: Calculate the deadlines; enter the deadlines into your electronic calendar; set electronic reminders in advance of the deadlines; invite your supervising attorney, if there is one, and your legal assistant or paralegal; and then ask your supervising attorney, legal assistant, or paralegal to verify that the deadlines have been entered correctly. Do this each and every time you are calendaring deadlines.
Figure out your story and what you need to tell your story. “Good trial lawyers know that it is difficult to win at trial if you don’t have a good story to tell. . . . Certainly, good trial lawyers know that a proven way to lose at trial is to tell no story at all.” Jeffrey R. Parsons, “Trial Strategies in Insurance Coverage Lawsuits: Practical Advice for Defending the Insurer,” in State Bar of Texas 8th Annual Advanced Insurance Law Course (Apr. 2011). A good start to developing your case is to interview the key client witnesses early in the case. Id. “From early witness interviews you can determine the broad outlines of the client’s story.” Id. Early witness interviews may yield key documents that will help form your story, may reveal weaknesses that you can begin to think about how best to address, and will allow you to identify “who will be the most effective storyteller—the most likeable, credible and best witness to sell your client’s side of the story.” Id. In conjunction with these witnesses, secure the relevant documents in your client’s possession and review them, if possible, before the interviews.
After you interview your key client witnesses and review the documents in your client’s possession, prepare a draft opening statement that can be used as a starting point for your story—or at least a bullet-point sketch of what the opening statement would look like.Id. This will help you formulate the story you want to tell and reveal the holes in your story that need to be filled during discovery. It is not important that your opening statement bear much of a resemblance to what your final opening statement ends up being. What matters is that you spend the time to think about your side of the story, and how you will tell that story, right from the inception of the case.
Next, begin assembling a notebook containing the key documents in the case that are placed in chronological order, and continually update and supplement the notebook with additional key documents as they are located. The key document chronology “will help you to mold, shape, test, poke and probe the client’s story until it becomes sound and, with luck, poke holes in the story told by the [opposing party].” Id.
The discovery tools are there to help your client’s case, whether you are representing a plaintiff or a defendant. From the beginning of your investigation, you must locate evidence that is consistent with your trial strategy, that exposes the strengths and weaknesses of your case and the opposing party’s case, that supports or contradicts liability and damages, that develops the character of your client and the opposition, and that is helpful to your client’s story. “Look for witnesses and documents which will permit you to present a simple, credible and orderly case, founded upon a few key themes. The case you are planning must be consistent with the law and rest upon solid proof.” Id.
In one case I handled, a company officer asked me to forgo discovery, initially, to save costs and to move aggressively on certain legal issues that could be decided as a matter of law. While I was confident in my client’s story and our legal position, I experienced that sinking feeling in my stomach and spent restless nights worrying about how much I did not know about the other side’s case.
Although I was able to obtain a satisfactory outcome, I wondered whether a lawyer can realistically represent his or her clients “aggressively” without discovering something about the opposing side’s case. I concluded “no.” Expensive, mass discovery is not necessary in every case. But you should evaluate how much and what kind of discovery is reasonable for each case, and conduct necessary document discovery, fact witness discovery, and expert discovery (consultation and testimonial) as appropriate to the needs of the case. Although the amount of discovery varies with the needs of the case, some amount of discovery is almost always necessary. It is your job to determine what amount that is.
Another case development issue you should think about early in the case is whether your case requires opinions from an expert witness. Expert testimony may be required by law to support or defend certain claims, such as in most professional malpractice cases. Expert testimony may also be crucial if a case is especially complex because the expert can be your vehicle to simplifying the issues for the judge and jury.
For example, a case arising from a defective airplane engine may involve technological issues that are not easily understood by laypersons. “In a perfect world, the facts of a case, when well presented by the trial lawyer, should determine the outcome of the trial. We are not living in a perfect world.” Michael B. Lee, “My Kingdom for an Expert!,” ACC Docket, Feb. 2005. “Trying a lawsuit is much more than letting the facts speak for themselves. Regardless of the size of the case, every trial involves real people with a real story.” Robert J. Shaughnessy, “The Value of an Expert Witness,” Disp. Resol. Insights, Summer 2010. In many instances, “[t]he lawyer is likely to be stuck with some fact witnesses who are inarticulate or otherwise unlikely to persuade for any number of reasons.” Expert witnesses, by their very definition, will play a vital role in telling your client’s story. By definition, an expert is a person with specialized knowledge, skill, experience, training, or education that qualifies that person to form opinions that will assist the trier of fact. Fed. R. Evid. 702; see, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
In addition, your case will, most likely, require expert testimony if the opposing side designates an expert on a particular subject. Imagine a scenario where one side of a dispute has hired a team of expert witnesses who are prepared to make a case for its client. Remember the old saying “don’t bring a knife to a gun fight,” and make every reasonable effort to retain credible expert witnesses to make an argument for your client.
I remember trying a case that hinged, in part, on the definition of certain words used in the mortgage banking industry. I designated an expert to provide helpful opinions on the meaning of those words according to their use in the industry. The other side did not. During trial, the judge asked, “Why didn’t [the other side] hire an expert?” If my memory is correct, opposing counsel responded to the judge’s question by saying, “My client could not afford an expert.” Fair point. Experts can be expensive and may not fit within the economics of your case. But this could also be fatal to your case, so this needs to be addressed with the client at the earliest opportunity.
Prepare readiness checklists. Another step to ensure proper planning is preparing 90-day, 60-day, and 30-day readiness checklists to review as trial or other final disposition nears. The checklist should identify items that need to be completed prior to “GO! time” in accordance with the rules and applicable court orders. Include items such as the following:
Status on Docket
Compliance—Scheduling Order and Deadlines
Discovery Responses Supplemented
Pretrial Dispositive Motions
Master Witness Lists
Master Exhibit Lists
Client Witnesses Notified
Expert Witnesses Notified
Calendar Witness Prep
Deposition Summarized and Reviewed
Fact Witness Deposition Designations—Completed
Expert Witness Designations—Completed
Deposition Video Redactions
Client Status Conference
Witness Examination Outlines
Motions in Limine
Trial Exhibits Selected
Unique Evidence Issues/Problems
Voir Dire Outline
While sitting in a courtroom one day, I watched a lawyer representing a plaintiff corporation call his only witness to the stand, and before the witness could utter a word, the other side objected to the witness because the witness was not disclosed in discovery. The objection was sustained, and the trial was over before it even began. This will not happen if you use readiness checklists.
Read orders and other correspondence from the court to avoid disaster. The events in a recent case, Two-Way Media LLC v. AT&T, Inc., 782 F.3d 1311 (Fed. Cir. 2015) (O’Malley, J.), shed light on the catastrophic effects of not treating a court’s correspondence with due respect. In Two-Way Media LLC, AT&T’s attorneys filed motions for judgment as a matter of law after a jury found AT&T guilty of patent infringement and awarded Two-Way Media LLC $40 million in damages. AT&T’s attorneys also moved to file the motions under seal. The district court eventually denied AT&T’s motions, and the clock began to tick on AT&T’s time to appeal.
The electronic court filing (ECF) notices emailed to the attorneys mistakenly indicated only that the motions to seal had been denied, but the actual orders, which were linked to the ECF notices, clearly denied all the motions filed by AT&T. More than a month later, AT&T’s attorneys contacted the court to advise that they had just come across the actual orders denying all the post-trial motions. AT&T’s attorneys asked for more time to file an appeal, arguing they had not been properly notified that both motions were denied.
The district court denied AT&T’s request, concluding that “it is the responsibility of every attorney to read the substance of each order received from the court. . . .” Id. at 1315. The Federal Circuit affirmed the district court’s finding “that AT&T did not satisfy its burden to show excusable neglect for its failure to read the underlying orders and check the docket for more than a month after the court issued the final orders.” Id. at 1317.
2. Conduct Yourself with Civility and Professionalism
Now more than ever, citizens desire civil interactions, even at the courthouse. Jonathan Smaby, “New Texas Lawyer’s Oath to Stress Civility,” Tex. Lawbook, May 19, 2015. Respect the court, court staff, and opposing counsel, and act the same way society expects everyone to act. Justice Cardozo once observed:
“Membership in the bar is a privilege burdened with conditions.” [An attorney is] received into that ancient fellowship for something more than private gain. He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.
In re Snyder, 472 U.S. 634, 644 (1985) (citation omitted).
Justice Cardozo went on to write that “[t]he license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.” Id. at 644–45. Disrespect for the court, court staff, and opposing counsel leads to doubt that “may becloud the public’s view of the ethics of the legal profession and thus impugn the integrity of the judicial process.” United States ex rel. Sheldon Elec. Co. v. Blackhawk Heating & Plumbing Co., 423 F. Supp. 486, 489 (S.D.N.Y. 1976). And it is the court’s responsibility to punish misbehavior and the disobedience or resistance of its decisions so that the standards of ethics remain high and so that order and the due administration of justice are preserved.Id.; Bessette v. W. B. Conkey Co., 194 U.S. 324, 326–27 (1904).
A jaundiced, young lawyer once took a court’s order to mediate lightheartedly and decided mediation was not appropriate at the time, rationalizing that the plaintiff’s case clearly lacked any merit, the case would not settle at mediation, the plaintiff was unreasonable, it was too early to mediate, mediation was a waste of the client’s money, the court-appointed mediator was incapable, etc. As the lawyer would later come to understand, the soundness or infirmity of such reasoning was rendered inconsequential at a subsequent hearing when the larger and only meaningful question was whether to punish the lawyer for contempt. The young lawyer was not thrown in jail or sanctioned that day, but a valuable lesson was learned.
Disrespecting the court, court staff, and opposing counsel will only hurt your client’s case and will ensure that you draw the court’s ire. Stanton, supra, at 35. “They say you never get a second chance to make a first impression. It’s a lesson that all too often gets learned the hard way.” Jonathan Hershberg, “It’s Not Just What You Say,” Soapbox, May 2005. “Don’t preach! Don’t strut! Don’t wag your finger! Does anyone respond well to [those actions]—ever?” Jack E. Urquhart, Trial Advocacy (June 2011) (unpublished manuscript). Remember, “[o]utrage has its place. Its place is for a moment. Relentless raging signals a need for serious therapy.” Id.
Less than 1 percent of civil cases are tried to a jury. So the next time you consider telling the judge your “true” feelings about the judge’s adverse rulings, interrupting the judge or opposing counsel, or displaying bad manners, remember to “first consider the impression you are making on the ‘jury of one’ who will likely resolve the disputed legal and factual issues in your case.” Stanton, supra, at 34. And, practically speaking, it doesn’t make much sense to “[get] into a power struggle with someone who wields a gavel, wears a robe, and has armed bailiff[.]” Id. at 35. It is “not a fair fight, and the talented lawyer is careful about picking fights he cannot win.” Id.
While a hostile judge is, most likely, the very worst thing for you and your client, you should not stop being a zealous advocate. Judges inevitably make mistakes, just like everyone else. If you believe the court missed certain facts or misinterpreted applicable law, develop a sensitive but persuasive strategy for providing a judge the opportunity to gracefully reverse his or her position. Id. at 34.
Finally, certain ABA statistics serve as a gentle reminder that lawyers are expected to conduct themselves in a manner that coincides with social norms. According to the ABA, between 2004 and 2007, 12.3 percent of legal malpractice claims fell into the following categories:
Fraud (5.0 percent)
Malicious prosecution (3.8 percent)
Libel or slander (1.8 percent)
Civil rights violations (1.7 percent)
3. Communicate with Your Client Regularly about All Things, Good and Bad
As your cases progress, clients may change their minds about a multitude of items for many varying reasons. Honest, open, and ongoing communication with your client will only help you and your client evaluate the client’s appetite for moving forward and in what manner. Not only is this essential to the proper presentment of your case, it is also required by standards of professional conduct.
Do what you are supposed to do, conduct yourself with civility and professionalism, regularly communicate with your clients, and you will be on your way to being an effective advocate.
Simple, isn’t it?
Keywords: litigation, trial evidence, trial calendar, planning, civility, professionalism, client relations