Saturday, April 26, 2008

Finding the Witnesses You Need

How do you find that ever elusive witness? The one who saw the accident but no one can find? The former employee who has first knowledge about the negotiations to a contract, whose last known phone number is disconnected? It’s time to start playing sleuth and tracking down the witnesses you need to prove your case. How? Consider the following.

Who are you looking for? First things first. You need to figure out who the relevant witnesses are. Ask your client for the names of everyone he knows who has or may have information about the case. Look at all the documents and see whom they reference as potential witnesses. Think of categories of witnesses who should have relevant information - eyewitnesses, investigators, foreman, supervisors, family, friends, neighbors - and then try to figure out whether any witnesses exist in any of these categories. Your first job is to compile a list of every potential available witness and then devise a game plan. Decide which witnesses you can and should locate, and think through how you are going to find them.

Let your fingers do the walking. Once you know whom to look for, do a white pages search on the internet for the witness. Chances are you’ll find their phone numbers and addresses with just a few taps on the keyboard.

Google them. If the white pages don’t produce fruit, do a Google search of the witnesses you are looking for. You may find their Myspace page, or their blog, or an article about them, or their high school reunion site - something with their contact information. With the internet, anonymity is hard to find.

Ask the other witnesses. One witness probably knows not only the names of other witnesses you’d be interested in interviewing, but how to reach them. Let your witnesses help you find other witnesses.

Review the documents. Just as you check with your witnesses, review your documents for potential contact information for other witnesses.

Knock on some doors. If phone calls are going unanswered, get in your car and go knock on some doors in hopes of finding those elusive witnesses.

Hire an investigator. If all else fails, hire an investigator to find that witness that you cannot. That’s what investigators do. If the witness is important enough, recommend to your client that he incur the cost of an investigator’s services to find that witness on whose testimony the case may turn.

Saturday, April 19, 2008

Using Your Depositions to Win

Why take depositions? You take them to advance your case. You take them, because they will support a motion for summary judgment or because they will strengthen your position at mediation or because they will help you prevail at trial. You take them because they help you win. Before you take your next deposition, think through how it helps you win the case.

Take a deposition to lay the foundation for a summary judgment motion. Summary judgments are won or lost on the facts. Look at the relevant jury instructions, statutes and cases, and determine what facts you need to elicit to lay the groundwork for a successful motion for summary judgment. Sometimes you’ll come across a case similar to yours, where certain facts led the appellate court to affirm a motion for summary judgment. Use that case as a guide. If you can elicit the same facts in your depositions as the facts referenced in that case, then you can reference the facts you elicit and the case you found as the foundation for a successful motion for summary judgment.

Take a deposition to improve your settlement posture. If you can dismantle the other side’s key witness in deposition, then you’ve gone a long way in changing your client’s position when it comes to settlement talks. Think through why the other side thinks this witness makes his case and breaks yours and ask the types of questions that cuts that witness down to size.

Take a deposition to prevail at trial. What are the admissions you would want to hear at trial? What are the statements you want the jury to hear? Think through the themes you want to have reverberate through trial and then think through the facts and statements that play into and support those themes. Working backwards from there, use the depositions to build a foundation for those themes. Remember, you never want to ask a question of the witness at trial you don’t know the answer to. Therefore, you want to use depositions to get the admissions you need, because if you didn’t ask the questions at deposition you run a huge risk asking them for the first time at trial.

Before taking your next deposition, consider how it advances your case. How it proves one or more of the elements of the cause of action or undermines one or more of the affirmative defenses if you’re plaintiff’s counsel, or how it undermines one or more of the elements of the cause of action or supports one or more of the affirmative defenses, if you’re defense counsel. If the deposition doesn’t accomplish any of this, consider whether it is worth taking at all.

Saturday, April 12, 2008

Getting Past the Fear

Here you are. A litigator tackling a large caseload, attending hearings, taking depositions and preparing for trials. You remember law school with some nostalgia now that you’re at a job where you’re called upon to make important decisions every day. Sometimes it’s challenging. Sometimes it’s overwhelming. Sometimes it’s downright frightening. And sometimes that fear can get the best of you. How do you tackle the fear and make it work for you? Consider the following suggestions.

Accept failure. You will make mistakes. Every associate does. It’s part of the job description. When you make them, learn from them and move on. Don’t dwell on them. Don’t let them color your perspective or define who you are. When you fail your life won’t end, you won’t lose your job and others won’t think you’re an idiot. Because they too have made mistakes. And you know what? They’re still making them.

Accept your limitations. Fear is often a byproduct of getting in over your head. Now, don’t get me wrong. It’s important to challenge yourself, to strive beyond what other attorneys at your level are doing. However, take it too far, and you’ll quickly find yourself in unfamiliar territory, making decisions without having a frame of reference to make them. Don’t stray far from the supervising attorney. Her direction will ensure you stay on the right track and the proximity will give you piece of mind.

Get ahead of the curve. In law school, you learned the law. Now you realize that knowing the law is not enough. You have to learn how to get things done. Not knowing how things work, how the process works, can be disabling. "Am I making the right decision?" "Am I doing the right thing?" "The right way?" The faster you can learn how things work, the faster you’ll overcome the uncertainty.

But how do you get ahead of the curve? A great way is to attend CLE seminars or listen to CLE tapes that address the mechanics of being a lawyer. In addition, you can find a lot of practice pieces in bar association newsletters, magazines and peer reviewed journals. Most everything you didn’t learn in law school has been reduced to writing by some attorney who doesn’t want you to make the mistakes he did.

Research the outcomes of your decision. Not knowing how things will turn out is unsettling. "What will happen if I choose option X?" If you’ve never chosen option X before, you’re not sure what the possible outcomes may be. However, others have been in your shoes. Ask other attorneys at your firm what they’ve done and why they did it.

Your decision may turn on what the law says. If that’s the case, you need to research what the law says. When you first get a case, you should research the elements and defenses of the case. That way, you know what plaintiff needs to prove and what the defendant needs to disprove. This information will provide you a roadmap to where the case should go, and knowing where to go will do a lot to alleviate the uncertainty.

Fear is natural. Being at a new job, dealing with new people, tackling new situations can be unnerving. Get ahead of the fear. Don’t settle with tackling problems as they come. Take the time to read, and study and learn how more experienced attorneys deal with the problems you will be dealing with, so when they come, you’ll be prepared. You’ll react with knowledge, not with fear.

Saturday, April 5, 2008

How to Prepare for a Hearing in State Court

As a new lawyer, you often feel like the underdog, especially when it comes to arguing motions in state court. More often than not, your opponent is more experienced, more suave, more in control. He knows everyone in the courthouse by their first name, whether they are attorneys, judicial assistants or bailiffs. Even the judges go out of their way to say hello to him. How can you compete? Preparation can go a long way toward leveling the playing field. The following are some tips to consider.

Pick your fights wisely. Is it wise to file the motion? Is the law on your side? What are the odds the judge will grant your motion? Does the motion really serve my client’s interests? Having a winning track record at arguing motions begins with knowing what battles to fight and which ones to walk away from.

Try to work it out with opposing counsel. Before you draft a motion, call opposing counsel and try to work it out. You may save yourself the time and expense of the motion. If not, you can let the Court know that you tried to work things out.

Keep the motion simple. In state court, particularly during motion calender, courts are swamped with dozens of motions. Make your motion short, simple and to the point. In my motions, I tell the judge up front the relief I am seeking and why I am entitled to it.

Learn everything you can about your judge. Ask around your office about your judge. Is she plaintiff or defense oriented? Is she slow to impose sanctions? Also, obtain a copy of the judge’s protocols for setting and arguing motions. In addition, do a search on Westlaw for all the cases where your judge has been upheld or overturned. One of these cases may address the same issue you raise in your motion.

Learn everything you can about opposing counsel. Look up your opponent on Martindale-Hubble. Also, look at the attorney’s web page to learn about his area of expertise, years of experience, whether he’s been published and anything else to get a sense of his strengths and weaknesses.

Be courteous when setting the motion. Before you set a motion for hearing, clear the date with opposing counsel. Also, be courteous to the judge by not setting motions on motion calender that will take more than five minutes to argue. Some judges have a list of the type of motions they refuse to hear on motion calender.

Send the court a courtesy copy. Send the court a courtesy copy of the motion and a copy of all the cases cited in the motion, with a cover letter informing the judge the date and time of the hearing.

Order a court reporter. Consider ordering a court reporter. Sometimes, opposing counsel or the judge will address issues you were not expecting. It is good to have a transcript of these digressions. Also, parties cannot always agree to the language of an order, claiming the judge said one thing or another. A transcript often resolves these disputes.

Make sure you made the calender. A day or two before the hearing, make sure you made the judge’s calender. Also, confirm with opposing counsel and the court reporter that they will be attending the hearing.

Prepare a hearing file. Prepare a hearing file containing the following: (1) notice of hearing; (2) two copies of the motion (the second copy for the judge if the courtesy copy you previously sent is not at arm’s length); (3) three copies of all the cases, with the relevant portions highlighted; and (4) a blank order (most judges prefer the form orders with the carbon paper).

Introduce yourself and your case. At the hearing, say your name, your client’s name and the title of your motion. Give a brief description of the facts of the case and present your argument clearly and succinctly.

Be professional. Don’t interrupt opposing counsel or the judge. Don’t raise your voice or become upset. Don’t allow yourself to be baited by opposing counsel. And don’t argue after the Court has ruled.

Make a record. Have the judge make a ruling on the record, and try to have the judge address all the issues you raised in your motion. If you filed a motion to compel and for sanctions, have the judge address both issues. If the judge rules against you, do your best to have her limit her ruling. For example, if she denies your motion, have her do so without prejudice.

Prepare the order before leaving the courthouse. If possible, prepare the order at the conclusion of the hearing. That way, if a dispute arises over the language, you can go back to the judge and ask her to resolve the dispute.