Saturday, July 19, 2008

Pay It Forward

A few years ago a novel came out titled "Pay It Forward," followed by a movie adaptation. The protagonist was a 12-year-old whose teacher challenged him and his classmates to come up with an idea that would change the world and to implement it. The boy’s idea? "Pay it forward." He does something really good for three people. When they offer to repay the favor, he tells them to "pay it forward." He asks each of them to do really good things for three others, and when those others ask how they can repay the favor, they are to be asked to do something really good for three others, and so on. The idea is that from three acts of kindness, thousands more will be born. Now it’s your turn to "pay it forward."

As young attorneys, we may not view ourselves in a position to help others. We may think we do not have sufficient experience, or know-how or influence to be a positive influence on others. How can I help the other young associates when I’m still figuring things out? How can I handle that pro bono case when I have never argued a motion in court? But the fact is that you know more than you think, you have learned more than you can know and you can change things beyond your beliefs. It starts with finding a need and meeting it.

Perhaps another attorney in the office struggles with his writing. Perhaps your firm needs help with the staff. Perhaps a charitable organization needs the analytical skills of an attorney, even an inexperienced one. Find what those needs are, seek them out, and fill them. You have been blessed with a career in law. There are billions of people on this world who, because of their financial and social circumstances, are barely scraping by each day. They could never have made the life you have. If you had been them, you would not be here. Reflect on that, take it to heart, remember it, and when you come to terms with the fact that so little of your success has anything to do with you, pay what you have been given in this world forward.

What are some of the things you can do to share your blessings with others? Consider the following:

Volunteer. There are so many avenues available to you to volunteer. The obvious? Do pro bono. Most voluntary bar associations have an arm that pairs attorneys like you with needy clients who, because of their lack of financial wherewithal, cannot afford the legal services they need. The may lose their homes, get thrown out of their apartments, get thrown in jail, lose government benefits or even get deported without your help. You can make a real difference in these people’s lives.

In addition to pro bono, consider doing volunteer work for organizations that help out kids - Big Brother, Big Sister, The Boys Club, your local YMCA. These kids need role models and what better role model than someone who has made it through law school, passed the Florida Bar and spends every day speaking on behalf of others?

Lead. If you want to make a difference in the lives of others, become a leader in your law firm, in your local bar association, in your community. You don’t need a title to be a leader. Even if you’re not the managing partner, the president of an organization or have a title at a charitable organization, you can lead. Understand the organization’s values, its mission, its projects, and direct your efforts to advance them and bring others with you in the process.

Bring others with you. In your pursuit of making a difference, bring others with you on the journey. Don’t settle with impacting others. Help build up others so that they too can impact others. The concept of paying it forward is that each person who benefits in turn around and benefits others. As you help out in your firm, at your bar association and in your community, identify others who have the same desire, partner with them, and help them affect the lives of others for the better. You can do a lot. You and others can do so much more.

Don’t expect anything in return. Go out of your way to help others. If someone asks for help, give it. When someone seems to need help, offer it. And when no one needs or asks for it? Offer it anyway. And never, never do any of it with any expectation to get anything in return. You’re not doing these things for the payback. The payback is in the doing. Motive is everything and it is better to do less for the right reasons than more for the wrong ones.

When it comes to being a lawyer, a good one that makes a difference, you it owe to yourself to do more than produce good work product. You owe it to yourself to look beyond yourself and your needs to those around you - at work, at other attorneys and at your community. Find out what those needs are and start working on meeting them. It’s only when you start affecting the lives of others for the better that you can aspire to become a great lawyer.

Sunday, July 13, 2008

Mistakes Associates Make And How To Avoid Them

"If I only knew then what I know now," is a common refrain by senior associates and junior partners alike. When attorneys start out, we do not have the experience nor have we developed the instinct to know what the potential land mines are, much less to know how to avoid them. I certainly did not. Because of my naivete and inexperience, I ignored doing some things that today are second nature. For attorneys starting out, try to avoid the following:

Not speaking with the client. Nothing upsets a client more than being ignored. He wants to know what is going on with his case and wants a role in the big decisions, and sometimes the small ones. If you want to upset a client, don’t call, write or e-mail. Just let him get bills month after month without knowing what you’re doing or what you’re charging him for. To develop good client relations, seek your client’s input before making any big decisions, sometimes even before making small ones. Find out what documents the client wants to receive during the course of litigation, how often he wants to hear from you, what he wants to be bothered with and what he would be happy with you simply handling on your own. Once you know what he wants, give it to him. He’ll appreciate you for it.

Not speaking with the partner before speaking with the client. Before you speak with the client though, especially about such things as case strategy, such as deciding which experts to hire, what depositions to take or what the law says about his case, speak with the partner on the file first. You want to be on the same page with the partner on the file, make sure you both see the case the same way and have the same game plan in mind. Nothing undermines a client’s confidence to hear two different, and possibly contradictory game plans from the same firm. And the partner, who likely has worked with the client longer and who likely has handled similar cases, probably already has a case strategy in mind or has strong opinions about just about anything you plan on speaking with the client about. Go to the partner first, discuss with her her views, and then speak with the client after everyone has decided on a plan and how to execute it.

Not getting client approval. Before spending the client’s money, get the client’s approval. Need an expert? Get the client’s approval? Want to depose a witness? Get the client’s approval? Want to videotape that deposition? Get the client’s approval. A client should never be surprised by your bill.

Sugar coating. Clients like good news. The thing with good news is that it is often in scarce supply in litigation. Do not tell clients things are going well when they are not. Do not tell them they have a strong case when they don’t. And when evaluating a case, when asked what the case is worth, give them an honest evaluation. If you’re going to err, err on the pessimistic, not optimistic side. When putting a dollar value on a case, do the research. See what juries have awarded in similar cases. If the client complains, says you’re overblowing it’s exposure, you have the verdicts to support your view. It’s always better to be in the position where you settled the case for less than what you thought it was worth than paying more than what you valued it at.

Shoot from the hip. When the client calls for advice or with a question, it is tempting to tell him whatever comes to mind. Don’t do it. Stop, take a breath, and let him know that you will look into or research the issue he raised and that you’ll get back to him as soon as possible. Then talk to the partner on the file, get his thoughts, hit the library, look at the file, be prepared for other questions that may be asked related to that topic area, and then, and only then, call the client back and have an intelligent discussion about whatever he asked about.

Not thinking things through the end of trial. It’s tempting to look at a research assignment, a deposition or a hearing as simply that, and not look beyond it as to how it affects the entire case. Get in the habit of seeing the big picture in your cases, analyze where the cases are going and how to get there. Once you develop that view, then everything you do in your cases will be more meaningful and should contribute to achieving that larger goal.

Turning in drafts. It’s tempting to turn in rough drafts to other attorneys in the office. They’re not the client and because they’re more experienced, they can put the finishing touches on your memo, letter or motion. The problem with that is that the lawyers in your office start seeing your work product as substandard. No matter what a lawyer says, no matter how quickly he wants something and no matter how often he says that a draft, no matter how rough, is fine, don’t give him anything but your best work. Treat the lawyers in your office like your client. Don’t give anything you wouldn’t give the client, which means it has to be perfect. I always review my drafts three times. It seems a bit time consuming, but it always guarantees a strong, clear and concise work product.

Sacrificing quality for quantity. As defense attorneys, we are under constant pressure to bill to meet our annual billable hourly requirements. In addition to billing so many hours each year, we know that some of those hours will get cut because clients will not pay for what they perceive as too much time spent researching, drafting or revising. Now the problem is clients want perfect work product but often don’t want to pay for the time it takes to make it perfect. That often translates into associates who produce great work having some of their time written off, which translates into longer hours to make those billable hour requirements. It is tempting to cut some corners so as to produce the same product in less time and reduce the risk of having your time cut. The problem with that, is that you can’t cut corners and expect the quality to remain at the same level. And at the end of the day, you want to base your reputation on the quality of your work, not on the fact that you meet, or even exceed your hours but that your work product is average.

Shying away from the hard assignments. It is tempting to avoid the tough assignments. They are tough for a reason. They take long, there are not always clear answers and things can go wrong, sometimes very wrong. But if you want to succeed, you need to tackle the tough challenges. Because they’re tough, it’s more likely you want be as successful at handling them as you would your run of the mill cases. But if you want to grow as a lawyer and earn your stripes, you need to handle them.

Avoiding social engagements. With all the hours to bill, who has time to attend bar meetings, get involved in local organizations or attend cocktail parties with judges? You do if you want to start developing the relationships that will be off in the long term. It’s easy to get caught up in billing the hours and forget about everything else. However, it is the everything else that will pave the way for developing clients and becoming partner.

Ignoring mistakes. If a mistake happens, it’s human nature to ignore it, to hope it goes away. The problem is that if you ignore it, there’s a good chance it will become bigger and that wart you ignored today may become tomorrow’s tumor. When you made a mistake, acknowledge it, talk to the partner about it and figure out how best to handle it. Problems have a way of growing when they are not dealt with.

Not appreciating that you are providing a service. Many young lawyers think of themselves as simply lawyers. Lawyers of all ages often forget that we are providing a service, just as a doctor, or a sales representative of a waiter does. Think of the last time you were served in a restaurant. What made you like a waiter and made you want to give him a bigger tip? What about that other waiter that you didn’t like? As lawyers, we are not all that different. Think about what service you receive from various sectors and what you like about that service and what you dislike. You probably like prompt, friendly service. You need to keep in mind that you are providing a service and that you need to do everything you can to make the experience a pleasant one. Otherwise, just as you might decide not to return to a restaurant because you had a bad experience with a waiter, a client may decide not to return to your law firm because he had a bad experience with you.

Not getting involved.
Another mistake young lawyers make is not getting involved - not getting involved in bar associations, not participating in presentations to trade groups or not writing articles. Again, the strain and demands of the billable hour makes such pursuits difficult. However, you have to find the time to pursue those interests. Those are the interests that will help you develop the relationships that you need to prosper as a lawyer.

Saturday, July 5, 2008

The Art of Cross Examination

I grew up watching L.A. Law. My favorite character was Michael Kuzak, the firm’s hotshot trial lawyer. Nobody cross examined witnesses like Kuzak. You knew when he stood up in the court room, buttoned his jacket and approached the witness stand, something big was going to happen. By the end of his cross examination, Kuzak had destroyed the witness and with him, the opponent’s case. Nobody did it like Kuzak.

Real life is not as exciting as L.A. Law and cross examination is not as easy as Kuzak made it look. But by following a few simple rules, you can make your cross examination just as devastating.

An effective cross examination starts at deposition. Some attorneys wait until trial to prepare their cross examination outlines. That’s too late. You need to try out your cross examination questions at deposition. In fact, every question you intend to ask at trial should be asked at deposition so you know what answer to expect at trial. If it’s an answer you like, then you have a ready made question for trial. If not, dump it. If it did not work at deposition it won’t work in front of six jurors.

Don’t ask a question if you don’t know the answer. Something you have heard over and over is that you don’t ask a question at trial unless you already know the answer. Trial is not the time to be surprised. Be surprised when you investigate your case, when you receive responses to interrogatories or at deposition. But don’t be surprised at trial. But how do you find out the answers to the questions you intend on asking? Simple. You find out the answers in deposition. Do your work in deposition to take the guess work out of trial. When you’re at trial you will know what the answers are because they will be in black and white in the deposition transcript.

Prepare a cross examination binder. Prepare a cross examination binder for every witness you will cross examine at trial. The binder will contain your cross examination outline and your impeachment materials.

First, prepare a detailed cross examination outline. Start by brainstorming the topics you want to address during your cross examination. Such a topic could include witness bias. For each topic area, prepare a two column chart. On the left column, include all the questions you intend to ask the witness. I suggest, however, that instead of writing out the questions, that your write out the answers you expect to elicit from the witness. At trial, when you look at your outline and see the answers, you’ll know what question to ask.

In the right column, across from each answer you intend to elicit, cite the source of that answer, whether it’s page 12 from the witness’s deposition, the ER admission note or some other document. If you can’t find a source for the answer, don’t ask the question. Why? Because if the witness does not give you the answer you want, the one you have written down on your outline, you won’t have anything with which to impeach him.

That brings us to the second part of your cross examination notebook. Behind your outline, keep all your source documents, your defacto impeachment materials. The document you’ll be relying on the most will be the witness’s own deposition, where months, or perhaps years before, you tried out all your cross examination questions.

Ask only leading questions. Cross examination is not the time to ask the witness to tell his story. Don’t ask open ended questions. Ask only leading questions which suggest the answer. You want to direct the witness to give you the answers you have in your outline. Don’t give him the opportunity to say something else by asking open-ended questions.

Don’t use the word “correct” at the end of your questions. Don’t end your leading questions with such words as “correct” or “isn’t that so.” In fact, don’t ask questions. Instead, make statements and get the witness to agree to them. Instead of saying, “You treated the plaintiff on January 23, 2003, correct?” simply make the statement, “You treated the plaintiff on January 23, 2003.” You’ll get the same answer whether you ask the question or put it in the form of a statement. Such words as “correct” detract from the power of your cross examination and if used at the end of every question, become distracting and downright annoying.

Ask “yes” questions. When you ask leading questions, you want to ask questions that require only a “yes” answer. You want the witness to agree with you and say “yes” to your questions as often as possible. You want the jury to see and hear the witness agreeing with you time and time again. “You’re an orthopedist.” “Yes.” “You treated Mr. Smith.” “Yes.” “At the request of his attorney.” “Yes.” “And you charged his attorney $600 for that examination.” “Yes.” “An examination which took twenty minutes.” “Yes.” The more the jurors hear the witness saying “yes” to your questions, the more the jurors will perceive that the witness is agreeing with you and with your position.

Only include one fact per question. Avoid asking long-winded questions that are overburdened with facts. Keep your questions simple and only include one fact per question. By doing this, you keep your cross examination clear and crisp. Also, it’s easier to impeach a witness about a single fact as opposed to a whole host of them. In addition, single fact questions increase the number of questions you can ask the witness to which you will get a “yes” answer. You would rather have the witness say “yes” to you 50 times than 5 times.

Don’t argue with the witness. Sometimes cross examination does not go as planned. A witness trips you up, and despite your best efforts, you don’t get that “yes” answer you expected. Some attorneys would argue with the witness. If you find yourself here, stop. Consider moving on to the next question on your outline.

Start Strong. End strong. When you’re organizing your outline into topic areas, start with a topic that makes a strong point and end the same way. Consider starting with the witness’s bias. By doing so, you color all the witness’s answers.

Don’t ask the ultimate question. It’s tempting, after getting the witness to agree with you again and again, to ask the ultimate question. Don’t do it. Very rarely will you get the answer you want. For example, if you’re cross examining the Plaintiff’s treater, you may ask 30 or more questions detailing every time the plaintiff did not show up for physical therapy. You will leave the jury with the impression that the plaintiff did not comply with doctors’ orders and, in the process, may have compromised his condition.

But whatever you do, don’t ask the witness the ultimate question. For example, don’t ask the doctor the following: “By not going to physical therapy, you agree, doctor, that plaintiff compromised his outcome?” The doctor won’t agree with you. He’ll find some way to explain how plaintiff’s repeated non-compliance had absolutely no affect on the plaintiff’s outcome. It’s tempting to ask that ultimate question. Do it at your own peril. Instead, argue the ultimate point in your closing.

If you insist on asking the ultimate question, do it at deposition. In fact, I strongly recommend you ask ultimate questions in deposition. Every once in a while you’ll get a witness to agree with you on that ultimate question. If they do, ask it again at trial. If the witness refuses to agree with you, impeach him with his deposition testimony.

Effective cross examination comes down to preparation. If you want to get the answers you want, you need to lay the groundwork long before trial commences. Because in real life, unlike television, you don’t have a group of writers scripting a devastating cross-examination.