It seems like only yesterday that I was sitting down to draft my first tips for litigators. I have covered tips for writing briefs and motions, how to behave in court, and being a better lawyer. Because this is my last column, I will have to include everything else I know in two pages. Thus, no theme for this one— just thoughts on various aspects of practicing law.
1) Beware Email
I have a love hate relationship with my email, and I am guessing that the same is true of many of you. Never before have we lawyers been able to communicate with clients and opposing counsel with such ease and speed, day and night, 24/7. There are many reasons why this seemingly breakthrough technology is also a curse, but here are the real problems with email. First, it speeds things up exponentially. Not that I am a Luddite, but in “the good old days,” you wrote a letter to opposing counsel or whomever. It took a few days to be delivered. In the meantime, the issue you wrote about might have resolved itself. At a minimum, if the letter was contentious, everyone had a little time to cool off. By the time the recipient responded, they’d had time to reflect. With email, everything is speeded up. If you do not reply to a client within an hour, they think you are ignoring their case. If you receive an email to which you take offense, the natural tendency is to respond within seconds—a practice that usually does not result in anything good.
Also, the sheer volume of emails that have to be produced in litigation has multiplied. Although programs are being developed that are more and more accurate in identifying responsive documents, they are still expensive and imperfect. Thus, instead of reducing documents produced during litigation, more documents (albeit electronic) are being generated and stored (usually in multiple computers). Hence, the cost of discovery, and the opportunity to unintentionally delete relevant electronic documents, has mushroomed.
2) Keep Clients in the Loop
Don’t leave a client wondering about the status of a case, or what happened at a court hearing, deposition, or other event. Keep the client informed and regularly discuss the status and current expectations. Give the client news, whether good or bad, as soon as possible. The client, particularly in-house counsel, hires you so that they don’t have to worry about the case daily. It is your responsibility to keep them informed. You don’t want a client calling and asking what happened in court or what you are doing about a particular issue. You stay up at night worrying about a motion or a deposition so that they don’t have to. When your secretary tells you that a client is on the line, you should feel good because the client is probably calling as a result of a development that you have already told them about, or to give you more work. You should not be saying to yourself that you should have called them first or that now you will have to give them the bad news.
3) Trust Until Proven Wrong
I am an eternal optimist. I continue to think that most lawyers are good, honest people that can be trusted. Over the years, I have learned that may not always be the case. Still, my approach is to assume that opposing counsel is trustworthy unless I have been told otherwise by lawyers that have worked with him or her, or they do something in my case to show that they cannot be trusted. The one exception is that if the issue is really important, I might not rely on opposing counsel, even if I think they are trustworthy. This also relates to the next topic.
4) Parties Can’t Speak for the Judge—Get an Order
Lawyers can agree on some things without the need for a court order, but there are other things that need a court order. Sometimes the local rules address what falls within each category. Other times, you have to look at the regular rules. For example, unless the local rules expressly say otherwise, you must get a court order to extend the time for responding to requests to admit. Even if opposing counsel says you can have more time, a court can rule that the requests are admitted if the deadline is not met and there is no extension from the court. Objections to interrogatories might be waived if you do not have a court order extending the time to respond. And, most significantly, a default judgment can be entered if you do not answer or otherwise plead within the required time, regardless of whether opposing counsel has said you can have more time. The solution is simple. Once you get opposing counsel’s agreement, file a motion for entry of an agreed motion. Most courts won’t make you appear, and you’ll sleep better at night.
5) A Few Thoughts on Discovery
Listen to the deponent’s answers. The biggest mistake I see during depositions is the lawyer asking the questions not paying close attention to the answers. The lawyer is busy thinking about the next question, or looking through documents. Answers to questions lead to other questions. They tell you what the deponent was coached to say (and therefore the other side’s arguments at trial). They tell you when you need to follow-up on an area of inquiry because the answer makes it clear that there is more to the topic.
Speeches on the record at a deposition rarely have much value. If you are going to move to compel or move for sanctions, or anything else regarding the deposition, you are going to have to put it in your pleadings anyway. No one ever attaches his or her speech from the deposition and says, “Here’s my motion.” You might want to make a short statement to preserve an argument. “I object to the late production of documents from the other side, making it impossible for me to fully prepare for and depose this witness, and I therefore reserve the right to re-depose the witness based on the additional documents.” That puts the other side on notice of your position and they cannot complain that you took them by surprise. A long recitation of the history of discovery doesn’t get you much more.
Look at the privilege log. A privilege log can be a goldmine of information. First, it is often the case that in thoroughly reviewing a privilege log, you find documents that are not really privileged. The documents that are inappropriately included are frequently documents that are harmful to the other side’s case, and they “stretch” a little to withhold them on the basis of privilege. A privilege log also can be instrumental in determining when a party first learned of something (statute of limitations).
6) Read the Rules
The federal and state rules have been around for a long time. They are amended from time to time to address issues that are not included or that have changed. Most of what we need to know procedurally is included in the rules. Before doing a lot of legal research or asking the more senior lawyers at your firm about how something should be done, read the rules. Chances are pretty good the answer is in there.
7) A Few Random Thoughts on Being a Newer Attorney, Particularly at a Large Law Firm
Volunteer. The best way to get on good cases and the best way to get good experiences is to volunteer. If you hear that a good case came into the office, volunteer to work on it. If you are already working on a case and depositions are being scheduled, volunteer to take them. Even if the more senior lawyer had not considered that you might take the deposition, your volunteering might make her think about it.
Offer ideas. You are assigned to a case because your work on it will add value. Even if you are only working on a small part of a case, you will know that part and you should be able to voice ideas. It may be that someone has already thought of whatever you are suggesting, or that it doesn’t make sense in the context of the case as a whole, but generally speaking, you will not be penalized for making suggestions. Even if only a few of them are useful, they will be appreciated.
Take notes. If you are the junior lawyer at a meeting with a client or other lawyers, and you are either playing a very minor role, or adding very little, the least you can do is take notes. I am always aggravated when a lawyer shows up for a meeting without even a pad and pen. What do they think they are going to do?
8) My Most Important Rule
This should not have to be said, but it does: Do not miss deadlines. This applies to court-ordered deadlines, but also to deadlines set by clients and deadlines set by others in your law firm.
That’s it. Thank you for reading my tips over the last year. I hope you found them helpful, or at least interesting. Congratulations and good luck to Laurence Pulgram who will soon be Section chair and writing these articles.