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.

My Sons' Eyes

I sometimes wonder if the sun envies me. I get up before it rises and return home after it sets. In the morning I kiss my wife Ana, and my two boys, David, 9, and Michael, 6, goodbye and head off to work. As I drive off, the last thing I see are my boys, standing in the front doorway in their pajamas, waving and smiling, yelling their last goodbyes. I always remember their eyes. Those eyes don’t see a tired man, lugging a brief case like a life sentence, worried about the hearing that morning or the deposition that afternoon. They see only "Daddy," bigger than life, bigger than any problem, real or imagined.

During one of the morning goodbyes, David looked at me, looked at the sun rising over my shoulder and shouted, "Look Daddy! You’re bigger than the sun!" Yes, bigger than the sun, bigger than any obstacle or problem. A superhero of sorts. No cape, no tights, no bat cave or designer costume, but a superhero nonetheless. Because you see, in my sons’ eyes, Daddy is immune to Kryptonite. That’s what my boys see when they look at me. I take that look to work and conquer the day with it.

There’s power in those eyes. I want to be the man they see. The one who does the right thing, not the easy thing. The one who confronts adversity, not runs from it. The one who keeps his head while those about him are losing theirs. I want to make those boys proud, to live up to their image of me. I don’t want to do anything to make that look in their eyes wane. I’m not naive. They will grow up, become teenagers, see me differently. I’ll look smaller in their eyes. But I’m going to do my best not to contribute to my own diminution.

Those eyes define professionalism for me. It’s not about rules, codes of conduct, mission statements or a list of dos and don’ts. It’s about being the man my boys see, the man I want to be. For me, professionalism simply begins and ends by asking the question, "Would my sons be proud of my actions?" What would they think about my conversations with opposing counsel? The questions I ask the witness at deposition? What I tell the judge at the hearing? They’re a constant presence in my life, even when I’m in the office and they’re back at home watching Barney.

Sometimes when I’m sitting in my office I can almost see my boys, sprawled on the carpet, their Spider Man coloring books open, crayons everywhere. Other times, when I’m typing on the computer, I can almost feel David’s breath on my neck, his fingers on my shoulder. I act as if they’re right there in my office, in the deposition room or in the courthouse. I deal with opposing counsel as if my boys are standing by my side, watching me. I write my motions and letters as if they’re peaking over my shoulder, asking me what I’m typing. Ask me about professionalism, about what it means to be a lawyer, and I’ll tell you about two little boys who idolize their father, who, with their eyes, push him to always be the man they see.

Each of us has someone who sees us for more than what we are. It may be a child, a spouse, a parent or a friend. We want to make them proud; we want to be the person they see. It is in striving to be that person that we pursue professionalism, true ethics. It’s more than following rules for the sake of following rules. It’s doing the right thing for the sake of those who matter. I try to do the right thing because my boys expect me to, and I do it to set an example for them, so that they’ll do the right thing too. Start looking deep into your loved ones’ eyes. You’ll find what it means to be a professional in those eyes, and you’ll find the inspiration to act like one.

What Being a Lawyer Has Taught Me

The following are a few things I have learned during my short career as a civil defense attorney. As with most of my thoughts, they are in no particular order.

If you want to know a lawyer’s true character, see how he treats his secretary when he thinks no one else is looking. Better yet, how he treats the runner.

Professionalism is treating the cleaning staff that comes after hours the same way you treat the judge during motion calender.

You don’t need a pen and pad to write. Take advantage of the quiet times - the first few minutes after you wake up, when you’re in the shower, when you’re driving to work - to think through that memo or brief you’re stuck on or that legal argument that doesn’t quite work.

I would rather driver 3 ½ hours than go through airport security to catch a 45 minute flight.

I do my best writing while I’m driving.

Don’t let your standard of living increase every time your salary does. There’s nothing wrong with driving a car with over 100,000 miles or living in a working class neighborhood. Frugality gives you options in life.

But don’t be frugal when it comes to your shoes. You have to wear them 10 to 14 hours a day. How do you say good looking and comfortable? Two words - deer skin.

Learning from your mistakes is experience. Learning from others’ mistakes is wisdom.

Mentors are great. You get to learn from their mistakes.

Cross examination isn’t just for depositions or trial. You can learn a lot about what’s going on in your kids’ lives if you keep asking them questions.

I assume I don’t have much time on this earth. I live life like I won’t see my 40th birthday. I’m 36. It’s amazing the perspective you get when you think you have four years to live.

When you get to the hotel room, run the hot water and let the steam fill the bathroom. Hang the suits and shirts from your garment bag nearby. You’ll be surprised how many of the wrinkles will vanish.

The key to the practice of law is preparation. I would rather go up against an experienced lawyer who is lazy than an inexperienced one who works his butt off.

Never let another’s behavior dictate yours. No matter how obnoxious or insulting that other lawyer is, don’t respond in kind.

Take a long term view of things. It helps keep everything in perspective.

Always keep the client informed. Make sure the client knows what is happening in his case, what the problems are and what you are doing to address them. Listen to the client and seek his input when formulating a case strategy. Clients hate surprises. One surprise too many, and that client will look elsewhere for legal advice.

A client you speak with, write to and e-mail frequently is often very forgiving of the mistakes you make.

Your kids are always watching you. Live accordingly.

Work as if you’re kids are watching you.

Return messages promptly. In this age of Blackberries, Trios and other technology, the 24-hour-rule is an anachronism. Try 4 hours.

The attorney who was disbarred for misappropriating client funds started years ago by fudging on the little things. Don’t start down that path.

Learn how to use the postage machine. It’s only a matter of time until you’ll have to mail a letter after hours. While you’re at it, learn how to make two-sided copies, how to scan documents and how to send an overnight package.

Show me a lawyer who works hard and I will show you a lawyer, who sooner or later, is going to make it.

The Bible is right. You reap what you sow.

Instead of reading your kids bedtime stories, make them up yourself. Make your kids the protagonists. Have them fight ogres, slay dragons and seek buried treasure. They’ll ask for more and you’ll develop your story telling skills for trial.

Most emergencies are self-made.

Before sending anything out, proofread it at least twice. Three times is preferable.

And proofread outloud.

When you first get a file, call opposing counsel and introduce yourself. It’s harder for an attorney to be unprofessional if he’s had a pleasant conversation with opposing counsel.

Get to know opposing counsel. It’s harder to fight over trivial things if you’re asking opposing counsel about his daughter’s recital and he’s asking you about your son’s soccer game.

When the other side starts objecting during a deposition, you’ve tripped over something. When he starts making speaking objections, you’ve hit pay dirt. Keep digging.

Instant oatmeal is great. Pour a pack into a styrofoam cup, fill with hot water, and voila, breakfast at the office.

If you’re going to have breakfast at the office, make it a point to have breakfast with your kids on the weekend.

The first thing you do -- read the jury instructions. They will be your road map for the entire case. They tell you what the parties have to prove, what the defenses are and whether you stand a chance of winning or not.

If you want your clients to be happy, act like the waiter at your favorite restaurant. At my favorite restaurant, the waiter sits us at "our" table, makes sure we have plenty of bread, brings out the kids’ meals first and keeps our soda glasses filled. He knows our needs, meets them and does it all with a smile. Provide that quality of service to your clients and they’ll keeping coming back.

Funny thing. The food at that restaurant is good, but not great. We come back for the service.

You can’t win without a theme. Start developing the theme of your case early. Every interrogatory you propound, every motion you file and every deposition you take should be done to advance that theme. If you wait until two weeks before trial to develop your theme, it’s too late.

However, don’t be married to a theme. As your case develops, your theme must develop. During the course of litigation, you may pick up and drop a half a dozen themes on the way to finding one that is worth holding onto.

Have a theme for your life. What are you trying to accomplish? When it’s all said and done, and your career is over, what do you hope to have done with your life? Don’t settle for figuring out what your cases are really about. Figure out what you are really about.

Writing is all about nouns and verbs. Adverbs, adjectives and prepositions are overrated.

Actually, writing is all about verbs.

Extra words are the enemy. Eradicate them.

We all have short attention spans. When you write a motion, memo or letter, make your point up front, hit the highlights and stop writing.

Argue your motion out loud before a hearing. It’s one thing to see your arguments written down on paper. It’s quite another to listen to how they sound.

Put yourself in the shoes of the judge and opposing counsel. Anticipate the other side’s arguments and the judge’s likely questions. Thinking this way avoids surprises at hearings.

Get involved. Being a good lawyer entails so much more than working on your cases. If you want to grow and develop, join a voluntary bar association or two and volunteer your time. The relationships you will develop in these organizations will be priceless.

Make a list of your strengths and weaknesses as a lawyer. Pick one of your weaknesses and work on it this year. If you write poorly, read some books on writing, maybe take a class. If you are a poor public speaker, consider joining Toastmasters. Tackle the weaknesses, one at a time.

Also make a list of your goals for the next year. So many of us have a strategy when it comes to our cases, but many of us do not have one when it comes to our lives.

Know your opposing counsel. Look at his website, his jury verdicts and published opinions. Ask around about the type of lawyer he is.

Know your judge. Read the appellate opinions that have upheld his rulings and those that have overturned them. Know what his judicial philosophy is and most importantly, what his pet peeves are.

Prepare every case as if it’s going to trial, not as if it’s going to settle, even though most do.

Always keep a clean desk. You look like you are in control when you do, even if secretly, you are not.

Write your own obituary. Write out how you want others to remember you. Now spend a lifetime trying to live up to that description.

Your Job as a Senior Associate

You have made it this far. You are arguing motions and taking depositions and handling your own caseload. You may have even second-chaired a trial or two or more. The brass ring of partnership is within reach. So what do you need to do to receive your firm’s blessing and become a partner? Here are some thoughts.

Market on the firm’s behalf. The life blood of a firm is its clients. Without them, there are no files to work on. So it is your job to keep the firm’s current clients happy and to help the firm attract new ones. Firm marketing is not just the marketing department’s job or the senior partners’ - it is everybody’s job, particularly yours. One of the things a firm is looking for when deciding to make one of its associates a partner is whether he already has clients or has the potential of attracting them.

To show your firm you have the characteristics it is looking for, get involved in bar associations and business organizations and market your firm to the people you meet at the meetings, conferences and cocktail hours. If you see yourself only as someone who is at the firm to bill hours, that’s how the firm will perceive you. They will appreciate all the hours you bill, but they will never see you as one of them - as a potential rainmaker who deserves to be named and treated as a partner.

Seek out leadership positions in your organizations. As a junior associate, you should have become involved in local and regional bar associations. As a senior associate, it is time to reap the benefits of years of hard work and seek out leadership positions in these organizations. Try to get on their boards and rise in the ranks to become an officer, and ultimately the president of the organization. It is also time to go beyond a parochial perspective, and start getting involved in national organizations, whether it is the American Bar Association, or another national organization. Start laying the foundation in those national organizations to lead them within ten years.

Master your files. Now is the time to go beyond simply managing your files and start mastering them. Not only are you thinking of the big picture, not only are you thinking long term when it comes to your cases, but you are coming up with ways, clever, creative ways to win. You are developing and implementing strategies that get your clients the best results possible. To do this, study how the partners at your firms win the cases they shouldn’t and read everything you can about the success stories of other attorneys. These "war stories" bear precious nuggets that can show you how to elevate your game to the next level.

Act like a partner. If you want to leap from senior associate to partner, it is time to start acting like a partner. What does that mean, though? It means working to fulfill the firm’s goal. It means living the firm’s mission statement in everything you do. It means you start mentoring the younger attorneys at your firm just as you have been mentored over the last several years. It means thinking like a partner when it comes to firm resources, handling files, dealing with clients and working with the staff. The more you act like a partner the more you will be perceived as someone with partnership qualities. Of course acting like a partner does not mean you throw around your weight or take advantage of others at the firm. It means leading through serving others, it means tackling the tough issues and it means not shrinking from responsibility. Behave that way and your title will catch up with your attitude.

As a senior associate your main goal is to lay the final groundwork for becoming a partner. The brass ring is within reach. Strive to grab it.

Your Job as a Mid-Level Associate

After you have the first couple of years at the firm under your belt, you will leave the uncertainty and fear that accompany being a junior associate behind you and find yourself enveloped in the fear and uncertainty that accompany the new tasks and responsibilities that define a mid-level associate. For, as you will see, no sooner have you mastered the tasks and duties of a new attorney, you will be thrust into situations that are wholly unfamiliar. What to do?

Think big picture. As a mid-level associate, you are asked to tackle assignments that may affect the entire case. You are asked to look at the big picture, to see how your actions affect the case not only here and now, but months, possibly years, from now, when the case goes to trial and the jury weighs all the evidence.

Start thinking about partnership. It is never too early to start thinking about partnership. You need to investigate what it takes to become a partner at your firm and what you need to be doing now to get on the partnership track. What types of cases should you be working on? What extra-curricular activities should you be involved in? What marketing efforts should you be engaged in on behalf of the firm?

Accept bigger challenges. It is time to move from simply doing research and writing, motion calender hearings and record custodian depositions to meatier projects. If you are not getting those projects, ask for them. If you don’t get them, then the partners probably don’t think you are ready for them. Find out why and rectify whatever shortcomings the partners believe you have.

Start managing your own files. Move away from piece meal projects and start working on entire files. Your goal is to handle more than just a hearing or a deposition. Your goal is to handle an entire case. Study how the partners run their cases and read everything you can about how others handle their cases - from start to finish. Apply what you learn to the files you are working on and ask to run them yourselves.

Start managing your own caseload. Don’t settle with managing a case or two. Your goal is to handle your entire caseload. The more self reliant you are, the more free time you afford the partners at the firm to dedicate to other matters.

Focus on a specialty. It’s time to pick a practice area and start specializing. Choose an area and become an expert in it. If you master an area of the law, it will show through your work product and you will become the "go to" person at your firm whenever that type of case comes in through the door.

As you move out of your first years into your middle years, it is time to think about your long term career. Do you want to become a partner at your firm? If so, lay the foundation during those middle years by assuming more responsibility and tackling that responsibility with the right attitude.

What Is Expected of Junior Associates

Law school and the bar exam are behind you, and your first job as a junior associate awaits. What is expected of you?

Exemplar work product. Whether you are asked to research an issue, draft an internal memo or write a motion to the court, your job is to make sure it is perfect. But perfection takes time, you say. The partners at the firm will think I’m slow and inefficient, you say. It’s a tempting trap to fall into - not to go that extra mile for fear that others will think you are not bright or are milking a file. Don’t fall into the trap. If you are billing by the hour, the partner can cut your time if need be (junior associates often get their time cut, even when they are "efficient"). If time is an issue, you may have to spend some late nights or early mornings to keep up with your workload.

But whatever you do, make sure that your work is the best it can be. Find that extra case, go down the next rabbit hole and the one after that and proofread what you wrote not just once, but three times. Partners remembers associates who do quality work, and deep down, they know that quality takes time. They’ll forgive inefficiency. They won’t forget poor quality.

Do the dirty work. No one likes doing the mundane, detail-oriented tasks, like going through boxes of documents, answering interrogatories or tracking down hard to find witnesses. Volunteer for these tasks and do them well, and you will get noticed.

Do it with a smile. Doing your job is not enough. You need to do it with the right attitude.

Learn a practice area inside and out. Now is the time to learn everything you can about your practice area. Read the Bar journal articles relevant to your practice. Attend local CLE seminars. Go online, find and read everything you can about what you do. The greater your mastery of an area of the law, the more you will be relied upon when those types of cases come through the door.

Get involved. It’s never too early to get involved in bar associations. Your best bet is the local county or a local specialty bar association. Most bar associations have young lawyer divisions who are eager to invite new members into their fold.

Get along with the staff. Even though you are an attorney, you are, in a way, junior to your very own secretary. She probably knows more about your job than you do, as do the paralegals and possibly even the file clerks. They can help you handle all the practical aspects of your job -how to set a hearing or deposition, how to send a proposed order to the court, etc.

Learning the rules. As a junior associate, your most important job is to learn the rules - the rules of your firm, of your partners, the other associates and the staff. Every organization and every person plays by its or his own rules. Law firms are no different. If you want to get along and fit in, figure out what those rules are.

As a junior associate, your job is to integrate yourself into firm life and do the best job on your assignments, whether they are a document review, a memo or a motion. The odds are that you will not get many of the exciting assignments, but if you do what is expected, your time will come.

Write Your Eulogy

Black. There is so much black. Suits and dresses and slacks and shoes. And then there are the tears, intermingled with a laugh here and there. And in the middle of it all is the coffin, the reason why everyone is there, in black and in tears. And inside that coffin is you. Your practice is over, your career is over and most importantly, your life is over. And as you lay there, the room grows quiet as someone approaches the podium to say a few words. This is your eulogy - your life encapsulated in a few minutes - and everything you’ve done, the life you have led and the values you have held are about to be laid bare to those whose lives were influenced by your words and by your acts.

What will this person say about you? Will he speak in generalities? Will he say what he is suppose to say and will everybody nod their heads like they are suppose to nod? Or will the speaker actually be moved by your life, by your legacy and will those sitting in the folding chairs forget for a few minutes about how hard their seats are and reflect on how their lives are different - how their lives are better - because of you?

If you want to leave a legacy, if you want your life to mean something to others, to mean something after your gone, start with your eulogy. Sit down and write it out. How do you want to be remembered? What do you want those who remain behind to say about you? What are the nouns, and the verbs and the adjectives you want used to describe you? Write it down. Every last word - the anecdotes from your life, the nuggets of wisdom you shared, the acts of kindness you did - in black and white, right in front of you.

There. All your accomplishments, dreams and hopes fulfilled - reduced to a few pages. Now here comes the hard part. How close are you to fulfilling your legacy? How much of that eulogy is accurate and how much of it remains unfulfilled hopes and dreams? By writing your eulogy, you can see where you want to be and how far it is from here to there. You can reflect on what truly matters - the things you will do and the values you will live by that will cause you to have an impact well beyond your own lifetime.

You will realize, as I, that so much of what we do and so much of what consumes our thoughts is rather petty, small and insignificant. By reflecting on the life you should have lived, now instead on your deathbed, you can make the changes while there is still time. You can make the changes to leave the legacy you want, and make your funeral, whether decades or just years from now, a celebration of a life well lived. Now go and plan out how you’re going to make them dance in the aisles.

Working With Your Assistant

Your most important ally at your firm is your legal assistant. She does the things that make you look good and frees up time to tackle bigger, more important tasks. If you want to succeed at your firm, foster a respectful, caring relationship with your secretary and with the rest of the staff. How do you do that? Consider the following:

Be considerate. Your secretary is first and foremost a person. She wants and deserves to be treated with respect, consideration and appreciation. Think about your superiors in your firm. Do any of them treat you poorly? Treat you as fungible? How do they make you feel? How willing are you to go the extra mile for them? When it comes to staff, follow the golden rule - treat them the way you would want them to treat you.

Curb emergencies. How often do you find yourself asking your secretary to stay late because of an “emergency?” How often is it truly an emergency and how often is it poor planning on your part? Whenever you work on a project which will require your secretary’s help, get her involved early in the process so that she can do her job well before five.

Get involved. We all have interests outside of work. Many of us are involved in charities or organizations that we care deeply about. If your secretary has such an interest or involvement, see how you can help. Maybe you can help her with a food drive for a local shelter or lend a hand revitalizing the local youth center. Her appreciation will show up in her work.

Respect personal time. During the eight hours your secretary is at work, spouses will call, family emergencies will arise and issues from the home front will have to be dealt with. Give your secretary the time and space to deal with them. Attempts to stamp out these interruptions in the work day will only serve to alienate your secretary and ironically, make her less, not more, productive.

Be clear and precise. When asking your secretary for help, give clear and precise direction to ensure that you and her are on the same page regarding assignments. Consider taking the extra couple of minutes to write a detailed e-mail about what you want accomplished. The extra time you spend at the beginning of an assignment will be recouped when you get back exactly what you asked for.

The key to working well with yours secretary and your staff is taking the time to put them first so that they can follow your lead and put you and your cases first. To be served, you must first learn to serve.

Staying on Top of Your Cases

Handling 30, 40 or more cases is not unusual for a litigator. How do you stay on top of all them? How do you make sure you meet all the deadlines, prevent things from falling through the cracks and push your cases toward a successful resolution? Consider the following tips.

The most important fifteen minutes of the day. After pouring your morning joe and settling into your office, you are about to embark upon the most important fifteen minutes of the day.

Whether you squander them or not is entirely up to you. In the next fifteen minutes, you can either jump into the day’s work without a thought of how you want the day to unfold or you can develop a plan for the day (as well as the days and weeks to come). Take fifteen minutes to do the following:

Review your calender. See what is on your calender for the day, the week and the month ahead. Think about what needs to be done that day and what needs to be started upon to meet deadlines that are days or weeks away. Planning your day based solely on what is on the immediate horizon is a recipe for having a career driven by emergencies.

Keep a case list. Keep a list of all your cases, adding new ones as they come across your desk and removing ones as you close them out. First thing every morning, review the list to evaluate what phone calls you need to make, what e-mails you need to send and whatever else you need to do.

Keep a to do list. Keep a running list of assignments on a Word or Word Perfect document which you add to as you receive new assignment and shorten as you complete assignments. After you look at your calender and case list, look at your to do list, and see what else needs to be done.

Keep a short to do list close at hand. On a post it, write down the things "you must" finish today. On a second post it, write down a few more things you "would like" to get done today. Those post its will direct your activity for the day.

Keep a clean desk. Nothing should stay on your desk except for what you are currently working on. Everything else needs to be passed onto your secretary, another attorney in the office or the file room. To the extent you have several outstanding projects, develop a filing system in your office where you keep these documents somewhere other than in piles on your desk. For example, I use a stack of trays I keep behind me on a book shelf, where I keep documents related to outstanding projects I am working on. Once I am done with one, those documents leave my office immediately.

If it takes less than five minutes, do it! Get in the habit of doing things immediately, whether returning phone calls, responding to e-mails, or answers questions or requests by clients or others at the firm. This way, you tackle the project when it is freshest in your mind and you avoid your to do list from growing and further avoid paper from accumulating on your desk.

Staying on top of your cases can be challenging. However, by developing a system that works for you and sticking to it, you can ensure to reduce surprises and emergencies to a minimum.

Preparing Your Client for Deposition

The most important deposition in a case is not the opposing party’s. it is your client’s deposition. The admissions he makes can hand a summary judgment or a favorable jury verdict to the other side. To avoid that, consider the following when preparing your client for deposition.

It takes time. Make time. Preparing your client for deposition is time-consuming. For every hour you expect his deposition to last, plan on spending three preparing him.

Prepare early. Don’t wait until the day before (or even the week before) the deposition to start preparing your client. Preparations should start before opposing counsel sends out the notice.

Prepare a document binder for your clients. The worst feeling in the world is seeing your client being asked questions at deposition about a document he has never seen before. To avoid this, procure all the relevant documents through your case investigations, requests for production and third party subpoenas, and prepare a binder of all the documents you expect your client to see at deposition. Mail him the binder, have him review them at his leisure and then go through them in detail with him in person.

Conduct a mock deposition. Just as your client should not see a document for the first time at deposition, he should not be asked a question for the first time at deposition either. Ask him every question you expect opposing counsel to ask him. Neither you nor your client should be surprised by any of the answers he gives at deposition.

Videotape the mock deposition. Consider video taping the mock deposition and viewing portions of it with your client. Discuss with him his delivery style, his body language and his answers. Seeing oneself on video can be very educational.

Tell the truth. There are all sorts of rules attorneys tell their clients to follow at the deposition. The first and foremost is to tell the truth. A witness never has to worry about “keeping his story straight” or wondering if opposing counsel is going to trip him up on one or more of his answers if he sticks to the truth.

Give your witness a deposition transcript. You can describe a deposition all you want. You can even subject your client to a mock deposition. But there’s no substitute for an actual deposition. To give your client the complete experience before subjecting him to it, consider giving him a transcript or even a DVD from another deposition.

Strike the proper balance. There is no question that your client can sink the case with the words that come out of his mouth. Of course, he can become so conscious of this, that his nerves get the best of him. Treat the client in such a way to convey the importance of his deposition without making him impotent with fear.

Your client’s case may rise or fall on the words that come out of his mouth. Make sure he knows to choose those words carefully.

Deposing a Treating Physician - Part Three

After the court reporter swears in the doctor, consider working off the following outline.

First, review the contents of the physician’s file and do an inventory of the file, keeping an eye out for the following:

* patient questionnaire
* letter of protection
* correspondence from counsel
* notes, letters from patient
* other physicians’ records
* physician notes
* medical bills

Review subpoena and ensure doctor brought everything you asked for.

Review physician’s notes and address the following:

Review favorable notes/opinions, including:

* pre-existing conditions
* favorable opinions
* patient compliance/non-compliance
* improvement in condition
* prognosis
* admissions by patient

Attack unfavorable notes and opinions, by confronting physician with:

* records indicating pre-existing conditions
* surveillance video
* his prior depositions
* his writings
* your medical research (excerpts from texts; medical journals)

If his opinions were favorable:

* review his credentials (C.V.) and qualify him

*confirm his opinions were "within a reasonable degree of medical probability"

If his opinions were unfavorable address:

* his credentials (wherever they may be lacking)

* priors cases where his opinions were stricken or expertise questioned

* whether his license has been suspended/curtailed/revoked

* whether he has been the subject of an investigation by:

* his medical board

* medicaid

* medicare

* other
* subject of any medical malpractice suits

* subject of any administrative proceedings

* subject of any lawsuits (other than malpractice)

* whether he is a hired gun (expert for every season)

* whether he ever taught on the subject of opinions

* whether he ever has written on subject of opinions

* whether he has ever taught courses on subject of opinions

* whether he has ever been qualified on subject of opinions

* testimonial history (depositions/trial)

* prior work as expert

When you feel you are done with the deposition, go through the following checklist before adjourning. Have you:

* Reviewed all his opinions?

* Reviewed basis of all his opinions?
* Ensured you have all his records and have reviewed them?

In many ways, deposing a physician is no different than deposing anyone else. It all comes down to preparation.

Deposing a Treating Physician - Part Two

In addition to learning the medicine, you need to learn everything you can about the doctor. Treat him like you would treat an expert witness and perform the same due diligence. When investigating a physician’s background, consider the following:

Prior depositions. Use expert deposition services, voluntary bar associations’ deposition banks and your own firm’s deposition bank to procure prior deposition transcripts of the physician.

Practitioner profile. Most states have departments of health which keep track of their physicians. They have information about the doctor’s education, training, board certification and disciplinary history. Procure a copy in each state where the doctor is licensed.

Physician’s website. More and more physicians have websites where they post their curriculum vitaes, their articles, their areas of speciality and testimonials from patients. Take some time to study the doctor’s website.

Advertising. Other than the website, review any online advertising for the physician and review the brochures he leaves in his waiting room.

Curriculum vitae. Review the physician’s CV and see where he went to school (did he leave the country to go to medical school), what he specialized in, what lectures he has given and what articles he has written.

Physician’s articles. Locate on Medline or elsewhere copies of the physician’s articles relevant to the plaintiff’s condition, treatment and prognosis.

Litigation history. Locate the clerk of courts’ sites in the jurisdictions where the physician practices and view the docket sheets of any malpractice suits naming the physician.

Once you have done your due diligence on the doctor, it is time to put together a binder you will take with you to the deposition. You will want to include in the binder: (1)notice of deposition; (2) return of service; (3) practitioner profile; (4) background search; (5) all impeachment materials; (6) all anatomical drawings you intend to use as exhibits; and (7) bate-stamped copy of the medical records. These will be your tools for the deposition.

In the next entry, I will discuss what to include in your deposition outline for the physician.

Deposing a Treating Physician - Part One

If you are defending a personal injury matter, the time will come when you will depose one or more of plaintiff’s treating physicians. Before you depose them, consider the following:

Should you set the deposition? Before you depose a treater, you must first decide whether you should depose him. In reaching this decision, ask yourself: Do his records support your case? Do they advance your case themes? Do they contain admissions by the plaintiff? Are his notes illegible, requiring a deposition to understand them? Does plaintiff list him as an expert? Do you expect him to testify at trial? Remember, that by deposing a physician, you are preserving his testimony, so have a good reason for doing so.

Learn the Medicine. If you decide to depose a physician, procure all of the plaintiff’s medical records and prepare a medical chronology. As you review the records, learn the medical terms you come across and learn how to pronounce them. You can use online medical dictionaries such as:

http://cancerweb.ncl.ac.uk/omd/

http://www.nlm.nih.gov/medlineplus/mplusdictionary.html

In addition to learning the terminology, learn the medical conditions at issue. Review medical texts and medical journal articles and use online sites such as:

http://www.merck.com/mmpe/index.html

http://www.medscape.com/home

Invest in yourself, and purchase several texts to facilitate preparing for medical-related depositions, including a medical dictionary, the pocket physicians desk reference and the Merck Manual. If you depose psychologists and psychiatrists, procure DSM-IV.

In the next installment, we will address how to investigate the background of the treating physician and what to bring to the deposition.

Finding the Perfect Expert

The perfect expert is preeminently qualified, is a leader in his field, has no skeletons in his closet and makes a great witness at trial. Finding him takes time and effort. To track him down, I would suggest the following:

Enlist your firm. Start your search by asking for recommendations from the attorneys in your firm.

Enlist your friends. Form an e-mail list of colleagues with whom you have gone to school with, worked with, served on bar associations with, etc. This list will serve you in many ways, including requests for experts.

Enlist bar associations. Many bar associations have expert databases. Some allow you to e-mail members, asking for expert recommendations.

Use Westlaw. Do a jury verdict search for the category of experts you are looking for. Not only will you find several prospects, you will see the types of verdicts with which they were associated.

Use the internet. Google the type of expert you are looking for and see what names come up.

Visit Barnes & Nobles. Visit Barnes & Nobles website, type in the subject matter for which you need an expert, and see who has written text books on the topic. For example, the expert you need to evaluate a party’s closed head injury may have written three text books on the topic, and is considered the foremost expert in the field.

Enlist experts. When you call prospective experts, ask them whom they consider to be leaders in their field. Whom do they consider authoritative? Whom would they call if they had a question?

Do your due diligence. Once you have several prospects, you need to make sure the expert fits the bill. Make sure to:

1) Review his curriculum vitae.

2) Review relevant publications cited in the curriculum vitae.

3) Read at least one of his prior depositions.

4) Review prior reports he has prepared.

5) Check Westlaw to see if his opinion has ever been stricken.

6) Do an article search.

7) Do a background search.

8) Ask for references of others who have retained him. Ask the references how the expert performed and whether they discovered any skeletons in his closet.

9) Ask the expert the hard questions (Has he ever been convicted? Has he ever had his opinion stricken? Has his license ever been revoked or restricted? Has any board or association ever reprimanded him? Are his credentials legitimate?)

10) Do a Google search to see if the expert has ever been written about in chat rooms, message boards or elsewhere.

The right expert can make the difference between winning a case and losing it. The same can be said about the wrong expert. Take your time and do your diligence to ensure the expert you are hiring is the best fit for your case.

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.