Saturday, May 24, 2008

Drafting Requests for Production - Getting the Documents You Want

In litigation, the right documents can make the difference between winning and losing. In your pursuit of the smoking gun, make the most of the requests for production you serve on the other side. Strong requests may get you the documents you need to win. Weak requests may get you little else than a mountain of objections. When drafting requests for production, consider the following:

Ask the opposing party to preserve all relevant documents. Along with your request, send a letter to the opposing party requesting that they preserve all the documents you consider relevant and provide categories of documents which are relevant to the case. By placing them on notice of the significance of given documents may serve as a basis for spoliation if they fail to preserve the documents.

Be specific. Broad requests invite objections from the other side. When they don’t, they produce mountains of paper, with little useful information. Tailor your requests to be as specific as possible so as to get the documents you really need.

Propound different versions of the same request. Sometimes, you know what category of documents you want the other side to produce but you don’t know how to draft the request without making it too broad or too narrow. When this happens, it is best to draft several versions of the same request, ranging from a broad request to a very narrow request. Multiple requests increase the odds of getting what you were looking for.

Request a privilege log. If opposing counsel objects to some of your requests claiming that you have requested privileged documents, request that he produce a privilege log which describes the nature of the documents which he claims are privileged. Parties who claim a privilege must produce privilege logs or run the risk of waiving that privilege. By forcing the other side to produce a privilege log, you may cause them to take a hard look at their privilege objections, realize some of them are unfounded and produce some documents.

Use contention requests for production. As you can do with interrogatories, propound contention requests for production. Such a request would entail asking the opposing party to produce all the documents which support a given allegation in his complaint or an affirmative defense asserted in his answer. By doing so, you can acquire all the documents the other side claims supports his case.

Don’t leave to interpretation to opposing counsel what you meant. There are attorneys out there who will try to construe your requests as narrowly as possible so as not to produce any documents. To limit this from happening, prepare a definition section, and define all the terms you’ll be using your request and define them so that the opposing counsel knows exactly what you’re asking for.

Agree with opposing counsel to bate stamp all documents. In some cases, the number of documents produced is inconsequential, making bate-stamping a novel, but unnecessary procedure. However, in most cases, many documents will exchange hands. To facilitate the use of these documents during the course of litigation, secure an agreement with opposing counsel that whenever anyone produces a document, he will bate stamp it.

Take time to draft meaningful requests for production. A single request may result in the production of a smoking gun.

Saturday, May 17, 2008

How To Improve Your Research Skills

Lawyers often complain that law school did not teach them how to be lawyers. Maybe it taught them how to do research, how to write, but not how to practice law. The fact is, we lawyers don’t know how to research, how to really research, until we leave law school and start practicing. Research for law school briefs and moot court competitions is not the same as when everything is on the line and the outcome depends on the cases you find. As you hone your research skills to find that much sought after case, consider the following:

Understand the issue you are researching. Before you run off to the library, make sure you know the issue you are researching. This is an obvious point, but how many of us have gone back to the partner only to find out we were going down the wrong path. It’s better to risk looking foolish by asking questions when you first get an assignment rather than guarantee looking foolish by wasting two hours in the library.

Know the facts of the case. Don’t settle for knowing what issue to research. You need context. Find out all the facts of your case, so that when you start researching you know what fact patterns to look for in the cases you read.

Ask around. Before you run off to the library or jump on Westlaw, ask other associates if they have done the same research. Perhaps your office has a document management system in place such as Imanage that allows you to search all office memos for key words. Such a search may pull up a memo identical to the one you were about to prepare.

Go from general to specific. Before you start researching cases and statutes, read through treatises to obtain an overview of the subject matter you are researching. This overview will help put into context the cases you find which address your issue.

Use the right tools. Rely on the correct tools to get the job done. There is a plethora of treatises and reference books out there. If you have any sway in what books your law firm buys, ask for the leading reference books that apply to your field.

Use key numbers. Once you have read through the relevant legal articles and treatises, it is time to start looking up cases and statutes. If you’re a new attorney, chances are you do all your research on Westlaw. If that’s the case, become accustomed to doing key number searches. Westlaw has taken every legal issue imaginable, and has assigned it a key number. Click on the key number that references your issue and up pops every headnote in every case addressing that issue. By doing this, you can feel assured that you have found every case on point.

Find cases involving your jurisdiction. Make sure you have found all the relevant cases in your jurisdiction.

Find cases involving your Judge. Even more important than finding a case in your jurisdiction is finding a case involving your judge. Do a word search for your judge’s name and see what cases you come up with. See when his opinions have been upheld and when they have been overturned.

Lean on a Westlaw representative. If you use Westlaw, you have access to hundreds of research attorneys whose only job is to help you find the cases you want. When your research isn’t producing fruit, don’t be shy to pick up the phone and ask a Westlaw representative for some help.

Chase the rabbit. During your research, you may find a few cases that address your issue. Don’t stop there. What other cases do those cases cite? Look them up and read them. What cases cite the cases you found? Look them up and read them. Keep doing this until you have reviewed every case addressing your issue. Don’t be satisfied until you’ve gone down every rabbit hole.

Take your time. Good research takes time. It takes time to read treatises and law review articles. It takes time to read cases, to key cite them and to read those cases. Take the time. It can be the difference between a winning and losing motion.

At first glance, research seems simple enough. That is, until that case your boss insists is out there, the one he read in the advance sheets six months ago, becomes elusive. Then, you have to muster all these skills to track that case down.

Saturday, May 10, 2008

How to Write a Motion in State Court

If you only had thirty seconds to convince someone of your position, what would you say? Whenever I write a motion, I have the attitude that I have thirty seconds to convince the judge that my position is the right one. I have one page, maybe two, to grab her attention and convince her I’m right. Thirty seconds. The rest of the motion is spent proving I’m right. Here’s how to do it:

Start with a strong introduction. In a sentence or two, tell the court why your position is the right one. Hit the ground running with a strong start that makes your case.

Get to your point. Let the court know why you are seeking relief. Do not leave her guessing why you filed your motion.

Stick to your point.
Once you make your point, stick to it throughout the motion. Don’t wander off the path. Digressions distract.

Support your point. Once you make the point, support it with the law. Do your research and find the cases that support your positions. When doing research, think outside the box. Do not limit yourself to cases and statutes. Find law review and Florida bar journal articles. Cite Florida Bar publications, such as the Discovery Handbook.

Confront your weaknesses. If there are cases that hurt your position, confront them. Don’t ignore the other sides strengths. Point them out to the judge and show why you win despite them.

Less is more. Keep the motion brief. Say as much as you can with as few words as possible. Judges are busy. A three page motion that makes a strong point is better than a ten page motion that makes no point at all.

Use the Active Voice. The subjects of your sentences should not be victims. Things don’t happen to them. They make things happen. Speak in the active voice. Avoid passive verbs such as "is" or "was." Active sentences are clearer and get to the point faster.

Edit, Edit, Edit.
Don’t be happy with your first draft, your second, or perhaps even your third. Edit out the excess sentences, phrases and words. Make sure your argument holds water, the transitions are smooth and the word choice is proper.

Speak plainly.
Avoid legalize and ten dollar words. Use short words, direct sentences, and avoid the "heretofores" and the "saids."

Speak confidently.
Don’t be bashful. If you are not confident about your position do not expect the Judge to be.

Make it a good read.
You may not be John Grisham but that does not mean your motion should put a judge to sleep. Make your writing strong, persuasive and interesting.

Make it clear what relief you are seeking.
Don’t simply ask the judge for relief. Be specific about the relief you are seeking.

Do not overstate or misstate.
Remember your job is to persuade, not misrepresent. If a case does not support your position, do not say that it does.

Do not take personal shots.
Keep it professional. Do not attack the other side or opposing counsel. Do not confuse being an advocate with being a jerk.

Attach the relevant documents.
If you are going to reference a document or affidavit, attach it to the motion so the judge can see it for herself.

When you write a motion, keep in mind that someone else is going to read it. Put yourself in the judge’s shoes and give her what she wants. Tell the judge what your position is, why she should agree with it and what relief she should grant. By doing so you increase the likelihood that the motion you drafted will be a winning one.

Saturday, May 3, 2008

Who Should Conduct a Medical Examination?

Whether you call it an "independent medical examination," "a defense medical examination" or "compulsory medical examination," your first decision is whether to subject the plaintiff to one. Is his physical or mental condition at issue? Do you want that condition evaluated by an expert of your choice? If so, you need to decide who should conduct it. When choosing an expert to evaluate the plaintiff, consider the following:

Do you need the plaintiff examined by more than one specialist? Perhaps the plaintiff has physical and cognitive injuries? If so, you may need to have him examined by both a neurologist or orthopedic surgeon and a neuropsychologist. Perhaps a third and even a fourth examination may be in order (an ophthalmologist for an injury to the eye, a vocational rehabilitation counselor to evaluate earning capacity, etc). If you plan on subjecting the plaintiff to multiple exams, it is best to get plaintiff’s O.K. first. If he refuses, seek court intervention. You want to resolve the number of medical examinations before setting the first one, because you don’t want to start setting medical examinations and then have to abandon one or more, perhaps the most important ones, because the court has determined you already have subjected the plaintiff to too many exams.

What kind of expert do you need? Once you’ve isolated the injuries or conditions that need evaluation, you need the find the right expert to evaluate them. Don’t settle for an expert in the general field related to plaintiff’s condition. Find an expert in the sub-specialty related to that condition. For example, if you want to evaluate whether a prescription drug caused a plaintiff’s stroke, don’t settle on a board-certified neurologist. Search out a board-certified vascular neurologist. If you want to examine whether a fall caused a plaintiff’s knee injury, don’t settle on a general orthopedic surgeon. Find one who specializes in knees. Better yet, find a sports medicine physician who specializes in knees. Always search out the expert who is best suited to evaluate the plaintiff’s condition.

Search out the best. When looking for an expert, find the best. Don’t settle for a second rate expert simply because you believe he will give you the opinion you’re hoping for. If the expert is going to be convincing, not only to the jury for purposes of trial, but to opposing counsel for purposes of settlement discussions, search out the best expert available.

Start with looking at the websites of Florida’s medical schools. Look for the chairs of the departments, the ones who went to the ivy league schools, who were chief residents, who have a long list of publications and are frequent lecturers. You are looking for the best of the best. If you found someone who has been named the Best of America’s Doctors year after year and has a 30-plus page resume, you’ve likely found your expert.

Of course, chair or co-chairs of departments tend to be busy. Sometimes you have to schedule medical examinations with them months in advance. Sometimes, they simply don’t do medical examinations for litigation. If so, keep going down the list of tenured professors until you find someone that fits your needs and has an impressive resume.

Confirm the expert is the best. He looks good on paper, but how do you know the expert lives up to the resume? Ask for references - the names of attorneys who have previously retained him. Find out the type of expert he really is. Just as important, find out the type of witness he is - how does he perform at deposition? How about at trial? It does not matter if you have a brilliant expert if he can’t put two words together when staring at a jury.

When retaining an expert to conduct a medical examination, take the time to find the right expert to evaluate plaintiff’s condition. The right one with respect to his curriculum vitae and also to the type of witness he will make.