Friday, November 28, 2008

The Back of an Envelope

After 22 years, the president of my alma mater is stepping down. Modesto "Mitch" Maidique recently announced that he is stepping down as President of Florida International University. Why? The answer lies on the back of an envelope.

IN 1986, Maidique became president of a small South Florida university. At the time, he was a former Stanford professor and entrepreneur with no experience in university administration. That did not deter him. On the back of an Eastern Airlines envelope, he laid out his dream for the university, listing his goals:

* transforming the school into a research powerhouse
* reaching $100 million in research grants
* securing an endowment of $100 million
* seeing 100 doctoral students graduate
* creating a law school
* creating a medical school
* creating an architectural school
* creating a 1-A football team

Despite being approached by 29 other colleges to be their leader, he remained at FIU. His dedication paid off. This year, he finished checking the last items off his list. Having accomplished his dream, his job was finished and it was time to step down. And it all started with some notes on the back of an envelope.

So many of us went through high school and college and law school with big dreams. Maybe it was to run for office or start a charity or write a book. Perhaps it was to start a business or travel the world. But somewhere along the way, those dreams were pushed aside and packed away like old magazines in the back of the closet. Families, jobs and responsibilities took over. You promise yourself you will pursue them some day - after you finish that big case, after the kids graduate, after you retire. Pushing them further into the distance.

I am going to suggest something novel. You probably have a dream that gnaws at you, that you daydream about while driving to work, that keeps you up at night as you lie in bed, with your arm tucked under the pillow. Take one of your business cards, turn it around to the blank side, and write it down. Coach high school football? Write it down. Teach a law school class? Write it down. Whatever it is, no matter how big or small, permit yourself to reduce it to writing. Now you have it in black and white. Carry this card in your wallet or purse until you accomplish what is on the back of it. Depending on the dream, it may take months, even years - possibly 22 as in the case of Maidique.

Spend the next week or two thinking about how you can achieve this dream. You do not have the time? You probably have more time than you think. When you shower, think about how you will accomplish your dream. When you drive to and from work, think about it. Watch just one less half-hour of television each day and think about it. You have the end in mind - the dream - just think about how to get there. Just as you write a business plan for a new venture or draft your strategy for trial, do the same for your dream. Keep your roadmap handy. Consult it regularly and do not be shy to modify it. The dream will stay the same. The route there, however, may change.

And every day do something to fulfill the dream. Some days you will have an hour or more. Some days you will only have a few minutes. But each day, work toward achieving the goal. You will not get closer to your dreams by standing still. They will not come to you - you have to pursue them.

Many lawyers are dissatisfied with their careers. We get bogged down with the minutia of the daily grind and lose track of the big picture, of the big ideas we once held dear and sacred. Permit yourself to reduce those dreams to writing and chase them. The passion and enthusiasm of the pursuit will permeate everything else you do, and reinvigorate you at home and at work.

Now go find that business card.

Saturday, November 22, 2008

Preparing for the Deposition of the Opposing Party

The most important deposition you will take is the deposition of the opposing party. Getting him to make the right admissions can secure your case and sink his. How do you prepare for it? Consider the following.

Learn everything you can about the opposing party. Do your due diligence and find out everything you can about the opposing party. Do a background search on him to see if he has a criminal record. Do a Google search to see if he has his own website or blog or if he is the subject of a chatroom or has been written about in an article. Do a litigation search to see if he has ever sued or been sued before. If he has, track down any depositions he gave or answers to interrogatories he signed. Do a bankruptcy search to see if he has ever filed for bankruptcy. If appropriate, get his medical, employment, IRS, social security, medicare and military records.

Get all the records and prepare a chronology. Get all the relevant records, whether they be contracts, handwritten notes, or medical records, and put them in chronological order. Then prepare a chronology summarizing these records. Put the chronology and all the records referenced in the chronology into a binder. This will help you gain an appreciation of everything that has occurred and the significance of the various events and documents.

Consider what you hope the opposing party will say. You need to go into the deposition of the opposing party as you would go into any deposition, with a plan of what you hope to get him to say. Depositions serve to gather information. But more importantly, they serve to pin down witnesses and to procure admissions favorable to your case and harmful to theirs. But before you can secure those helpful admissions, you have to decide what admissions you wish to procure. To do that, look at the jury instructions to see what you need to prove and what the other side needs to prove. Then consider what admissions you could elicit that support your position or undermining theirs.

For example, if you represent the defendant, you would try to get the plaintiff to admit to facts that show he does not meet one of the elements of the cause of action he alleges in the complaint. Alternatively, you would try to get the plaintiff to admit to facts that support one of your affirmative defenses. Whatever questions you ask, start with figuring out what you want the opposing party to say and then draft an outline that attempts to elicit that information.

Prepare a detailed outline for the deposition. After you’ve gathered all the facts and understand how the law applies to those facts and the allegations and affirmative defenses in the complaint and answer, then you’ll be prepared to draft an outline for the deposition.

Prepare your outline similar to the one you would prepare for trial. In fact, the more you think of this deposition as if it were trial, the more clear, the more concise and the more penetrating your questions will be.

Divide the outline into sections, with each section addressing a specific point or issue you want the opposing party to address. For example, you would have a section on the party’s prior litigation (if you are aware, for example, that this is his third personal injury suit).

When addressing a given topic, start with general questions, and proceed from there to asking more specific questions, until you focus on the specific issues you want the deponent to discuss. Make sure your questions are simple and only contain one fact per question. And most importantly, ask as many leading questions as possible, as you are allowed to do when deposing the opposing party. You want your questions to tell the other side the answer you are looking for and you are hoping that he will agree with you as much as possible.

When preparing for the opposing party deposition, take the time to learn everything you can about the party and about the facts and law that relate to the litigation. Once you’ve gathered and digested all this information, take the time to think through what you hope to get the other side to say and prepare an outline aimed at getting the admissions you are looking for.

Sunday, November 9, 2008

How to Prepare a Case for Trial

When should you start preparing for trial? Days before? Weeks before? The best time to start preparing for trial is at the start of the case. Start every case with the end in mind - the verdict you want - and pursue that end during every step in the litigation. You cannot assume that your case will settle. Do not prepare to settle a case. Prepare to try it. That way, if you do settle it, it will be due in part to your trial preparation. And if you do not settle it, you will be prepared to try the case and win. The following are some suggestions to keep in mind to help you achieve the results you seek at trial.

Develop a trial theme. At trial, you should have a theme around which you will present your case. The theme serves as the foundation of your case. Everything you do during the course of litigation, should build on that theme. Keep it simple and short. You should start developing your theme as early as possible. With a theme in mind, you can start thinking about what evidence you will want to introduce at trial and what evidence you will want to keep out. The theme will assist you in deciding what motions to file, what witnesses to interview, whom to depose and what to ask them to advance your theme.

During litigation, you may realize that your theme needs some tweaking or deserves to be discarded and be replaced altogether. You are better off if you realize that your theme doesn’t work early on in the case, when you have enough time to change it, than to realize it on the eve of trial, when it is too late for improvisations.

Be first. Always be a step ahead of opposing counsel. You want to be proactive and set the course of litigation. Be the first to interview witnesses, to serve written discovery, to subpoena records from third parties and take depositions. Being first often affects the outcome of litigation. The first attorney to interview witnesses can take their sworn statements and lock them into their testimony. The first to serve discovery gets a jump on obtaining records and facts to support his case. Also, by pushing your case ahead, you show the other side that you and your client are in control.

Think out of the box. What can you do differently? Look at your case from different perspectives. Be creative. Are there other causes of actions you can plead? Other defenses to raise? Are there other witnesses or other documents which may support your case? Too often, lawyers get into a rut of following the same protocol when they work on a certain type of case. Don’t fall into this trap. Whether it’s a slip and fall or breach of contract, think of new ways to approach the case.

Think your case through. When you first start a case, develop a case strategy. Figure out what you need to do to win at trial and prepare a step by step plan to achieve your goal. Developing a plan ensures that everything you do has a purpose. Without a detailed plan, you’re likely to pursue avenues and do things which do nothing to advance your case, or worse, undermine it.

Do your research. Spend some quality time in the library to research the elements of the causes of action in your case and the affirmative defenses. You need to know what each side has to prove to win his case, what discovery to pursue, what to ask witnesses in deposition and what motions to file.

Read the jury instructions. If you are plaintiff’s counsel, the jury instructions tell you what elements you have to prove to win at trial. If you are defense counsel, the instructions give you a road map to poking holes in your opponent’s case. From the beginning of the case, you need to know what the jury instructions expect you to present to a jury, so that during every step in the litigation you are gathering those facts in the interrogatories and request for production you propound, the subpoena for records you issue and in the questions you ask in depositions.

Having the facts you need to win shouldn’t be an accident. If you don’t know the jury instructions from the beginning of the case, the information you elicit which supports your case will be nothing more than coincidental. Know what you need to prove at trial and take the needed steps to elicit that information.

Have the court enter a scheduling order. Some courts enter detailed scheduling orders which spell out each phase of discovery and pre-trial deadlines. Others provide less guidance. Whether you are the plaintiff or the defendant, take steps to ensure that a detailed scheduling order is entered spelling out deadlines for expert disclosure, who discloses first, physical examinations of the plaintiff, depositions, etc.

File dispositive motions early. If you can win on summary judgment, start building your case early and file your motion as soon as it is appropriate to do so. Early analysis can help you isolate the weaknesses in your opponents case, one or more of which may be fatal.

Get your experts lined up early. Due to the expense, many clients prefer to delay the hiring of experts. However, being an ounce wise may prove to be a pound foolish. Experts can help you evaluate the strengths and weaknesses of your case and that of your opponent. An expert can help you develop your case strategy and determine what discovery to propound and what questions to ask at deposition.

Let the client know what to expect. Whether it is the cost associated with trial or what the outcome may be, make sure your client knows what to expect if the case goes to trial.

Success at trial is not an accident. It takes time and preparation, and that commitment of time and effort starts at the very inception of the case and continues through the time of trial. There are no shortcuts. Think through your case, come up with a theme and game plan and commit all your energies to seeing your goals fulfilled.

Saturday, November 1, 2008

Breaking The Ice

It won't be long until your next cocktail hour, conference or reception. There is no value to attend these by standing in a corner, clutching your drink and waiting for it to be over. They are networking events. But how do you network, you ask? How do you break the ice with total strangers? Consider the following tips:

Bring a friend. Bring someone you know with whom you can talk between mingling with others. You will feel less nervous if you have someone you know nearby. However, make it clear to your friend that the purpose of the event is to network. Don't fall into complacency and spend the entire night speaking with your friend.

Look for a friend. Odds are that you know someone at the event. When you spot her, she will likely be in a small group. Walk up, re-introduce yourself and introduce yourself to the others in the group. You have now met several new people you can get to know.

Come early. It is easier to meet new people when there are fewer people to meet. Arrive early and you will likely find a number of individuals by themselves, like you, that you can walk up to and start a conversation with.

Lines are a great place to meet people.
When standing in line to get a drink or standing at the buffet table, make a point to introduce yourself to those in front and behind you.

Work the room.
Make a point to make your way around the room, making an effort to speak to folks you do not know. You will find that most people at the event are there for the same reason you are - to network.

Stay engaged.
When you are in a conversation, stay engaged. Do not constantly be looking over a person's shoulders in search of someone else. No one likes to feel that they are simply filling time for you while you look for someone more interesting or more important with whom to speak.

Bring business cards.
Make sure you bring enough business cards to hand out. When you receive one in return make sure to study it a second and make a connection between the card and the person handing it to you. Also, to the extent you promise someone you are going to send them an article you wrote, put them in contact with someone else or provide them information, make a point to write that down on the card they hand you. It will serve as a reminder to you and it will show them that you are conscientious and plan on carrying out your promise.

Follow up with hand written notes.
When you return to your office, send handwritten notes on personal stationary to the folks you met. No one writes notes anymore. They will be remembered.

With a little planning and a little effort, you can make your next networking opportunity a successful one.