No More Secrets - Investigating a Witness

It used to be that to investigate a witness’s background, you needed to hire a private investigator. With the advent and rise of the internet, you can put on Sherlock Holmes’s deerstalker cap and find out unimaginable information about a witness. When searching into a person’s background, consider the following:

Myspace and Facebook. There are several popular sites such as Myspace and Facebook that allow one to post photos, video and personal information of oneself. Many reveal too much about themselves on these websites. Look up a witness on these sites and see if they have their own web page. If they do have one, but it is set to “private,” do a request to be allowed to view it (and also request that it not be changed, so that incriminating evidence is not removed).

Blogs. Just like information sharing sites like Myspace, more and more folks are starting their own blogs or posting to others’ blogs, possibly revealing information relevant to your case.

Alumni associations. High schools and colleges work hard to stay connected with their alumni. If you know where your witness went to school, you might find interesting information at his alma mata’s website.

Google. A simple google search of the witness can pull up a wealth of information, including companies he is associated with, articles he has written and articles written about him.

Westlaw. See if the witness has ever been the party to a published opinion or a published verdict.

Criminal records. There are various sites that allow you to check a witness’s criminal record, including your state’s law enforcement department. You can also check to see if he is in arrears in child support.

Litigation history. Check the local county’s clerk page to see if your witness has ever been involved in litigation and check the local bankruptcy court to see if he has ever filed for bankruptcy.

Odds are that there is valuable information about that key witness on the internet. Take the time to look. You may be surprised by what you find.

Investigating An Auto Accident Case

With advances in technology, there is more and more information out there relevant to your auto case. Some of the following may help you build your case or undermine your opponent’s:

Sun Pass. Based on the tolls paid, you can find out where a vehicle was on the day it was involved in the accident.

Cell records: Was the driver on the phone at the time of the accident? Who was he talking to? After the accident, whom did he call? He may have made admissions about the accident.

Text messages and e-mails: Instead of calling someone, the driver may have been sending a text message or an e-mail. Being on the phone is distracting. Typing on your phone is so much more distracting.

Traffic reports: Reports reflecting lane closures or accidents may give an indication of the flow of traffic at the time of an auto accident. The traffic conditions may make a claim of a speeding vehicle preposterous.

Video footage: There may be footage of the accident, particularly if it happened during rush hour, where the traffic helicopter may have caught your accident on video.

Black box. Some vehicles have "black boxes" that preserve information at the time of the accident, such as the speed of the vehicle. The parties can enter into an agreement to secure the black boxes from the vehicles involved in the accident and have them analyzed by mutually agreed upon experts.

Aerial shots: An aerial shot of the accident scene may prove helpful. Google Earth is a good source for such a photograph.

GPS. Were the drivers using GPS, such as Garmin or Magellan? Were they using an online service like Onstar? There may be information about the driver’s route.

The police report is a good start when investigating a car accident case, but it is only a start. There are so many other avenues to pursue when investigating who caused the accident.

New Year’s Resolutions

With the new year practically upon us, it is time to start thinking of a resolution or two. Each year, I make two resolutions, one centered around my family and one centered around my career as a lawyer. When coming up with your own resolution, you might want to consider one of the following:

Learn a second language. The practice of law, like commerce, has become global. Knowing a second language can distinguish you from most other lawyers. But who has the time? Turn your car into a classroom by listening to foreign language CDs which you can either buy online or check out from your local library. Watch foreign-language shows on television and subscribe to foreign-language magazines or newspapers. The more you can immerse yourself in another language, the faster you will learn it.

Learn a new skill. Learn Power Point, prepare a firm newsletter or organize a fund raiser for a bar association. Being a lawyer is so much more than drafting motions and taking depositions. Take the time this coming year to learn much needed networking and business development skills.

Try a case. Trials are harder and harder to come by, and when they do, young lawyers are generally relegated to a second or even third chair status, if that. Seek out pro bono opportunities that may result in a trial. For example, you may be able to represent pro se prisoners in civil rights cases or children in dependency proceedings. Not only are you helping those who cannot help themselves, you are developing trial skills in the process.

Find a mentor. If you do not already have one, seek one out. Find someone at your firm or someone you volunteer with at a bar association and develop a mentoring relationship with that person. There are no self-made attorneys. Find someone to help you fulfill your potential.

Get published. There are so many publications out there looking for articles. Getting your article published in one of them is easier than you think. Take the time to write an article and walk it through the publication process until you see it in print with your name underneath the title.

Make a difference. Join a community or charitable organization dedicated to helping the less fortunate. Help build a house for Habitat for Humanity or organize a food drive or discover a local need and develop a plan to address it.

Make next year one to remember by making a commitment to better yourself and see it through. Happy New Year!

Getting the Other Side’s Attention

Generally, scheduling a hearing or deposition takes little more than a call by one’s legal assistant to opposing counsel’s legal assistant. There are times, however, that those calls go unreturned. Despite your assistant’s best efforts, no dates are provided and hearings and depositions remain to be set. How do you handle this situation? Consider the following:

Reach out and touch someone. At the commencement of any case, consider picking up the phone and introducing yourself to opposing counsel. Have a pleasant chat and lay the foundation for cooperation during the course of the upcoming litigation. Such calls help ensure that your office’s requests for dates do not go unanswered.

Call for dates. When setting a hearing or deposition, never do it unilaterally. Have your legal assistant call opposing counsel’s and ask for mutually convenient dates. If she does not receive a response to the first call, have your secretary call again.

Follow up with an e-mail. If your legal assistant does not receive a response, send opposing counsel an e-mail letting him know that your office called and is waiting on dates. Propose several dates for him to choose from. Make it easy for him to cooperate with you.

Follow up with the notice. Your office calls. No response. You send an e-mail. No response. What next? Consider sending a letter, enclosing a notice for the hearing or deposition on a date and time that is convenient for you. In the letter, note your secretary called twice and you sent an e-mail, but despite your best efforts, you either have not been given dates or have been given inconvenient ones. Also note that the date on the notice you sent is not written in stone. If it is inconvenient, you will reschedule it if opposing counsel provides a reasonable alternative date. This way, you apply pressure to opposing counsel to cooperate. He either provides another date or accepts yours.

Setting hearings and depositions should be uneventful. However, under those rare circumstances when opposing counsel does not cooperate, following the steps above can help you ensure that you set the hearings and depositions you need to advance your client’s interests.

Setting Depositions - All At Once

When tackling your next case consider setting all your depositions at once. When you first sit down with the case, decide what depositions you need to take, in what order you want to take them and coordinate all of them with opposing counsel in a single phone call. Do not wait to take a deposition before setting the next one, and do not wait on taking the next one before setting the one after that. Instead, schedule all your depositions as soon as you know who the witnesses are. Set them out far enough so you have time to receive responses to your written discovery and procure third party records. Spread them out enough so you have enough time after finishing each to prepare for the next one. This way, once the depositions start, you will have them all lined up, in the order you want, on the date and time and at the location you want.

You can see there are several benefits of setting your depositions in this manner:

You set the agenda. By coordinating the depositions, you set the agenda and drive the case on your terms.

Motions for continuance become obsolete. If you schedule all your depositions at the beginning of the case, even if they are set months later, the odds are you will be able to conduct your discovery on a timely basis and avoid seeking leave for a continuance of the trial date.

Unavailability becomes a thing of the past. How often do you hear that opposing counsel’s first date of availability is weeks, sometimes, months away? By setting the depositions at the beginning of the case, opposing counsel’s tight schedule should not create problems in timely completing discovery.

Shows you mean business. By taking charge, you show the other side you are committed to litigating a case and trying it if necessary.

Problems can be dealt with early. What about the witness you cannot find? What about the witness who is in poor health? These issues are easier to deal with if you are not staring at discovery deadlines.

More likely to preserve important testimony. The longer you wait, the greater the risk you run of not capturing important witness testimony. Memories fade. Witnesses move away. They get sick. Sometimes they die. By scheduling your depositions as soon as possible, you preserve favorable testimony.

Setting all your depositions at once is not appropriate for every case. First, your client may not want to incur the expense. Second, you may not want to telegraph to the other side all the witnesses you think are important. However, it is an approach worth considering.

Begin with the End in Mind

In his best-selling book, The Seven Habits of Highly Effective People, Stephen Covey recommends that we "begin with the end in mind." You start with an image of where you want to end up - whether in your life, your career or a lawsuit - and devise a plan on how to get there. When you first get a case, you need to envision its resolution. Do you prevail at summary judgment? Does it settle at mediation? If so, how much do you hope to settle for? Does it go to trial? If so, what verdict are you hoping for?

Start by thinking how you and your client define a "win." Ironically, with only 2% of cases going to trial, you probably will not define a win as delivering a closing argument worthy of Clarence Darrow. In fact, the best "win" you can muster may be quite modest. You have to take stock of the law and the facts and based on what you have to work with, decide what your goal is. If you are plaintiff’s counsel, the best you may be able to hope for is to escape summary judgment and hobble to mediation, getting something for your client. If you are defense counsel, the best you may be able to muster is settling the case for $5 million instead of $7 million.

Once you "have the end in mind," devise a plan which details how to get there. What law do you have to research? What facts do you need to develop? What records do you need to get your hands on? What depositions do you need to take? Think about every step you need to take and plot it all out on a yellow pad. Anything missing? Anything out of order? Add to, subtract from and rearrange the items on your to do list. Once you are satisfied with it, prepare a letter to the client outlining your plan of attack. This way, your client has your blueprint for the case, and knows exactly where you are going and how you plan on getting there, and just as importantly, has a sense about how much it will all cost. Keep this letter close to you. You will refer to it regularly throughout the case and modify it as your case evolves. This letter will keep you focused on attaining your desired goals.

Become a Storyteller

Shakespeare, Faulkner and Poe have a lot to teach us about being litigators. That is because they have a lot to teach us about telling a story. When it comes down to it, we litigators are first and foremost storytellers. We cast our client in the role of the protagonist. We arrange the facts to develop the plot. And everything we do in the case - every question we ask in deposition, every interrogatory we propound, every motion we file - is directed to developing our theme - the heart of the story, without which there are no "happily ever afters."

Do not underestimate the power of a story. Stories have preserved the histories of ancient civilizations. Stories captivate our children’s attention, whether we read them from a book or invent them while sitting at the foot of their beds. Every day, stories spill out of our radios and our televisions and our theaters like milk pouring out a carton. And stories have inspired many of us to pursue this profession - stories like To Kill A Mockingbird. They are one of the most powerful tools at a litigator’s disposal. I would go so far as to say that to be a good litigator one must first be a good story teller.

When you first get a case, you need to start thinking what story you are going to tell the judge or jury. Is the story based on the facts? Does it hold together? Is there a central theme that runs throughout? Is it captivating? Most importantly, in your story, does the fact finder want to root for your client? Does he want your client to win? It is never too early to start developing your story. And if it turns out the facts prevent you from telling a compelling story that casts your client as the hero, then perhaps it is time to seriously consider settlement.

But before you sit down and start mapping out stories, you need to know how to tell one, and before you can do that, you need to have read a few. So I would suggest that your legal education does not start and end with cases and statutes, but rather in the pages of Hemmingway and Camus and Vonnegut. Pick up the classics, and commit to read one a month. As you read them, think about the story being told, how it plays on your intellect and on your emotions, and how it directs you to think or feel a certain way. The elements of the story - the characterization, the plot, the theme, the symbolism, the scenes - these are the elements that you need to acquaint yourself with, to study and to use when you develop the stories of your cases, the stories that tell how your client wins and how everybody lives happily ever after.