The Vision Thing

If you want to succeed at work, in your family and in your community then you need to become a leader. In any organization, there are the followers – the ones who do as others tell them, who choose not to think for themselves and are content to take orders. Then there are the managers, who direct others on how to implement someone else’s idea. And then there are the leaders, the ones who as Stephen Covey puts it, "start with the end in mind" and devise a plan on how to get there. They have the "vision thing," as some call it – they think big picture, they see what others do not and are not afraid of the expanse of their dreams. They are the ones who help organizations take huge leaps forward. Most organizations lack the leadership that they crave and need. Fill that void, and you will transform your organization.

But how do you become a leader? You say you are not the managing partner of your law firm? How can you lead from the middle of the organization or even the bottom? A title is not a prerequisite to be a leader. You do not wait until you have advanced the ranks before becoming a leader. As John Maxwell says, leadership has nothing to do with your position –it has every thing to do with your attitude and your perception of who you are. Start thinking like a leader; start thinking about the bigger picture, and the "end in mind" and develop the "vision thing." And then have the nerve to present your ideas to your firm and put your back into it and put forth the effort to make those ideas into reality. No one is going to make you a leader. You cannot wait until you get a title to become one. You need to create the opportunities, think big and be willing to implement your dreams. Your position may only be "middle management," but others will soon start seeing you as a leader. And with time, your firm will reward you and your title will soon match your efforts. Your title will come to reflect your leadership.

The Lost Art of Letter Writing

There was a time when other than speaking to a person face-to-face, the mainstay of communication was writing letters. There were no e-mails or instant messages or Myspace accounts. There were no computers or Blackberries or cell phones. There was just a quill, a bottle of ink and a piece of paper. And with these simple implements, relationships developed and flourished. It is how John and Abigail Adams held each other up during this country’s fight for independence. On March 31, 1776, Abigail wrote John, “I have sometimes been ready to think that the passion for liberty cannot be equally strong in the breasts of those who have been accustomed to deprive their fellow-creatures of theirs.” Who writes like this today? What has happened to our gift to move others with our words? If you recapture the lost art of letter writing, you will find you personal and business relationships blossom.

No one writes letters any more. So when someone receives a written letter in the mail, they cherish it. Those letters are often keep. Read again. Put away, only to pulled out to be read again. If you want to make an impression, buy yourself stationary - professional looking stationary with your name and address across the top of the page and on the corner of the envelope - and commit to writing at least one letter a week. Pick an old acquaintance or an executive you met at a networking event. Sit down at your desk, with your stationary and your letter writing pen (I would suggest to make the experience complete, go out and splurge on a nice pen that you only use to write letters), and draft a letter. The first few letters are difficult. With e-mails and word processing, it is hard not to second guess every word you put down on paper. It will take some time to learn to write letters. Some of you will find the experience too bothersome to even pick up. Others will throw down your pen in frustration and your stationary will collect dust in the bottom drawer of your desk. But for those of you who stick with it, writing letters will become a natural and regular part of your life. You will find that these letters will forge closer relationships with family and friends. You will also find that these letters will forge closer relationships with business prospects and clients. In short, the forgotten art of letter writing will be good for you and good for business.

The Way of the Samurai

According to what one of the elders said, taking an enemy on the battlefield is like a hawk taking a bird. Even though it enters into the midst of a thousand of them, it gives no attention to any bird other than the one that is has first marked.

Hagakure - Yamamoto Tsunetomo

The Japanese Samurai led their lives by the Bushido code, or the "Way of the Warrior." Chosen at birth, their training began in infancy - instructed on how to bow, how to dress, how to address their masters, how to withstand cold without shivering, how to withstand pain without flinching. They were taught to use the sword as an extension of themselves. And they followed a specific etiquette in everything they did - whether in every day life or in war. Justice was supreme under their code. Crooked and unjust actions were beneath them. Honor and courage governed their deeds and words. Honesty and sincerity were valued more than their very lives. For the feudal Samurai, it was more than just a job - it was a way of life. It defined them. They would rather take their own lives (for which they carried a second, smaller sword) than betray themselves - betray the Way of the Samurai. There was honor in the Way, and disgrace outside of it. There was meaning in fighting for their towns and provinces and emptiness in choosing to simply stand by.

Today, we lawyers belong to a similar warrior class. Though we have hung up the swords and silenced the battle cries, there remains in us a warrior spirit. We carry the duty and the privilege to fight for our clients, and we do so according to our own code of ethics -our own Way of the Samurai. It is easy to forget this as we perform the day to day tasks of responding to discovery and preparing motions and writing confirmatory letters. It is easy to forget the privilege and obligation we have to provide our clients the best representation possible. Just as the Samurai defended their feudal lords, we stand in defense of our clients, with the proverbial sword at the ready.

There is great honor in what we do. We can derive pride and solace and meaning in our roles as modern day warriors. What we do is more than just a job or a career - it is a way of life. We cannot allow the drudgeries and the small tasks get in the way. They obscure our calling, the reason we became lawyers in the first place - to fight for our clients, to give them a voice, to defend their rights.

We can learn about ourselves from the warriors who came before us. We can appreciate that our profession, in giving a voice to our clients and ushering them through the civil justice system, is a noble one - where words have replaced swords and our professional code of ethics have replaced the Bushido code. We are modern day warriors, and to consider ourselves something less - ones who simply push paper or bill hours, is to cheapen ourselves, to lose sight of who we are, who we are called to be. Work can become unsatisfying if we focus on the mundane - defining our lives by the little tasks and bothersome obstacles. We are so much more than that.

It is time to recapture our warrior spirit. It is time to don the robe, sheath the sword in its scabbard and prepare for battle. It is time to reclaim the honor and the responsibility and the grace that comes with representing our clients, lending them our voices and standing before them, prepared to bring the sword down in all alacrity. We are the modern day Samurai. And we are prepared to do justice.

10 Things You Should Be Doing Now

1) Writing Letters. Buy stationary and get in the habit of writing letters to colleagues and folks you meet at networking events. Handwritten notes are a great way to develop professional relationships.

2) Make the most of your drive to work. Learn a foreign language on CD or listen to motivational or business books on CD.

3) Exercise. What we do is very stressful. Take the time to spend 30 minutes a day to exercise.

4) Watch what you eat. You are constantly traveling for depositions and hearings. Prepack healthy snacks like nuts or protein bars to avoid the candy bars at the airport.

5) Get to know everyone at your firm. Make the effort to develop relationships with as many co-workers as you can, from the top partner to the mail room guy. These personal relationships make work more enjoyable.

6) Get a mentor. Find someone who can help you navigate the practice of law.

7) Be a mentor. Help someone else navigate the practice of law.

8) Read the legal news. Keep up with what’s going in your legal community. You learn a lot about the lawyers you go up against and the judges you appear before.

9) Borrow CLE materials. Ask to borrow CLE materials other attorneys bring back from their seminars. They generally contain a lot of "how-to" practical advice.

10) Read others’ transcripts. Read the deposition and hearing transcripts of other attorneys at the office to gain a different perspective on how to do things.

Time Management 101

What, the day is over? How about the research you wanted to get to? Or those phone calls you wanted to make? Or that letter that should have gone out? Sometimes it seems that being a lawyer means playing catch up. It does not have to be that way though. A few changes can allow you to squeeze more time out of your day, whether you need it for work, for family or for leisure.
Get a jump on the day. Many attorneys start their day at 9:00 a.m. Why not start at 8:30 or even 8:00? Getting a jump on the day, before the phone starts ringing and others start strolling into the office, is a great way to tackle projects without interruptions. Getting into the office early improves the odds of getting out early.

Keep lists. To avoid wasting time figuring out what to do next, prepare a list which tells you what to do next. In fact prepare two lists, a case list and a “to do” list.

Keep a running list of all your active cases. Scan it every day to determine if you need to do anything new on your cases.

Keep a “to do” list where you list all the projects you have to work on. Delete items as you complete them and add new ones as you think of them. The list lets you see everything you have to do all at once, helping you prioritize what to tackle first.

Develop action plans. Whenever you start working on a new file, develop an action plan. Plan a strategy to win the case and plot out what you need to do to get there. If you develop an action plan and know what you need to do to implement it, you won’t waste time constantly trying to figure out what to do next.

Don’t underestimate the power of thinking over doing. My high school English teacher used to tell me that the real writing occurs when the pen is down. What she meant is that before you start you need to know where you want to end up, whether it’s writing a motion, doing research or attacking a case. If you want to save time, really save time, then expend some time thinking through what you want to accomplish.

Act, Don’t React. As a follow up to thinking things through, learn to make things happen in your cases rather than reacting to what others do. Whether you’re the plaintiff or the defendant, you can set the course of your case, and by doing so, you can create timetables that fit your schedule. You can initiate the court to enter a scheduling order that suits you. You can be the one who sets the key witnesses when you want them set. If you want to be in charge of your calender, don’t let opposing counsel set the agenda.

Become intimately familiar with your calender. Every day, look at your calender and scan through the next month’s appointments and deadlines. This way you can plan ahead and avoid any surprises.

Put yourself on a schedule. Create deadlines for yourself and stick to them. When you give yourself an assignment give yourself a due date to ensure you’re not rushing at the last minute.
Set realistic deadlines. When you set deadlines for yourself, set reasonable ones. You’re not going to be able to finish that motion for summary judgment in two days, especially if you have a deposition to take and interrogatories to answer. When setting deadlines, set them far enough in advance to allow yourself enough time to do what you need to do.

Keep a clean desk. So much of time management is organization. If the research you want is under a huge pile and the phone number you want is under another huge pile, then expect to waste a lot of time. Avoid this by keeping a neat office and a neat desk.

Leverage the staff. Learn what to do yourself and what you can assign to a junior associate, a paralegal or to your secretary. Making the most of your time sometimes means making the most of others’ time. Determine what you can do and what can competently be done by someone else and assign it.

It never seems as though we have enough time to do everything we want to do. You blink and another day has gone by and your “to do” pile gets higher. To take control of your schedule rather than having it control you, take the time to plan ahead, making sure that every step you take takes you a step closer to reaching your objectives.

How to Be a Better Negotiator

Everyone hears about the million dollar verdicts. But what about the million dollar settlements? Though not as glamorous, they require no less skill to achieve.

Do Your Homework. Learn everything you can about the other side. Do they have a take-no-prisoners attitude toward negotiation or are they friendly and cooperative? Are they the type to blow their top and walk away from the table, or are they dedicated to solving problems and reaching resolutions? You can get this information from other executives who have dealt with them, from news story articles or possibly from the internet.

Think Win-Win. So often, we think win-lose. For us to win, it must come at a cost to the other side. However, with a little thought, you can think of solutions that benefit both parties. Why help the other side? Because to the extent you can help others reach their goals, they will be more open to helping you reach yours.

Think Outside the Box. Think of new, innovative approaches to negotiation. There may be alternatives to simply paying the other side more money in order to reach a deal.

Know Your Bottom Line. Go into a negotiation knowing what your bottom line is and be prepared to walk away if your minimum needs are not being met. Otherwise you may reach a deal on terms you cannot live with.

Know the Other Side’s Bottom Line. Just as you need to know what your bottom line is, try to discover what the other side’s bottom line is. That way, you don’t force the other side into a deal that they can’t live with. A deal does not mean anything if its only on paper.

Put Yourself in the Other’s Shoes. Do your best to learn what the other side’s needs and wants are. Try to understand what motivates them, what they seek to get out of the negotiation. That way, you will be able to devise solutions that will satisfy those needs and in turn, will encourage the other side to meet your needs.

Be Patient. Reaching a deal takes time. Sometimes, it takes a lot of time. Be prepared to negotiate, to haggle, to go back and forth until a resolution is reached or until it’s painfully obvious that it will never be reached. If you’re going to sit down with the other side to work something out, take the time to do it right.

Be Honest. You may be tempted to lie during negotiations. Don’t. A successful negotiation is built first on trust. If the other side can’t trust you, he never will be willing to settle on your terms. When you say something mean it. If it’s your last offer, take it or leave, be prepared to walk away if they reject it. Otherwise, you’ll lose credibility.

Don’t Assume the Other Side Will Be Honest. Just because you’re honest does not mean the other side will be. Take everything you hear with a grain of salt.

Mastering Technology

There was a time when attorneys could get away with not learning how to use a computer, and burying their heads in the sand when it came to technology. Those days are long gone. If you want to succeed and thrive in the modern law firm, you not only have to be familiar with technology - you have to master it. To do so, consider the following:

Learn Word. Knowing Word Perfect is well and good, but today, most everyone uses Word as their word processor, and more than that, are intimately familiar with all its features. Take the time to go through the help functions that accompany the program and consider buying an Idiot Guide or Word for Dummies to learn it well.

Learn Excel. In addition to learning Word, learn Excel, the leading spreadsheet program. Whether you are preparing charts or keeping track of a lot of information, Excel is the perfect program for such jobs and an application that merits being mastered.

Learn Power Point. Whether it is for trial, a hearing on a dispositive motion, a presentation to a client or for a CLE course, today Power Point presentations are everywhere, and if you haven’ t prepared one yet, you’re one of the few who hasn’t. Again, there are books for the uninitiated. Buy them and read them.

Learn Westlaw. Law libraries have become an anachronism. You need to learn Westlaw, and to save your firm and your clients money, learn it efficiently. Also, Westlaw has all sorts of databases other than cases and statutes that have the information you are looking for.

Master the web. The internet is your best friend. Through Google, you will find out all sorts of things about that plaintiff or that expert you are preparing to depose. You will find all sorts of journal articles and websites dedicated to the scientific issues you are trying to get your brain wrapped around. Facts and data that would taken days to find in the basement of some library are at your fingertips.

Scan, scan, scan. We are headed toward a paperless law firm. It is only a matter of time before every document, whether received by a law firm or sent out, including every piece of discovery, will be scanned, sorted and organized, to be retrieved and reviewed with the touch of a few keys. Get used to scanning or having your secretary scan all your documents. You will be amazed how much time is saved when you no longer have to track down pieces of paper in your firm’s file room or at the bottom of a pile on the partner’s desk.

Get a PDA. Today, with clients expecting every access every minute of every day, you cannot leave the office without a PDA (personal digital assistant), to access your e-mail, the communication mode of choice these days.

External access to your firm’s computer system. Chances are you r firm has a way for you to access its computer system, whether you are at home, at the airport or in a hotel. If not, discuss with your firm about getting external access for everyone. This will allow you to work from home or anywhere else for that matter. Today, law offices are no longer confined by four walls.

Learn trial technology. These days, technology is king in the courtroom. So, what is the latest technology? Well, that is a bit of a trick question, because court room technology is always changing. By the time this is published, the newest and latest would have changed. That’s why it’s important to keep an eye out for seminars, articles and web articles discussing the latest fads, trends and what works and what does n0t in the courtroom.

Technology, regardless of how overwhelming it gets at times, can and will make your job easier. It will particularly make it easier to manage the ever increasing amount of information and documents involved in litigation. Learn it, master it and live it.

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.

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.

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.

Know Your Opponent

If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.

- Sun Tzu

When I get a new case, the first question I want answered is, "Who is opposing counsel?" The answer to that question will shape the strategy I employ, the resources I use and the goals I set. Knowing your opponent is crucial in knowing how to handle your case. Is opposing counsel practicing outside of his field of expertise? Has he lost his last six trials? Or does he have a top flight reputation, an attorney who only accepts cases he believes he can win and win big?

But how do you learn these things? How do you get an accurate picture of whom you’re up against? Consider the following suggestions when sizing up opposing counsel:

Search Martindale Hubble. Use Martindale Hubble online. It’s easy to use and it’s free. It will let you know whether opposing counsel is rated and will provide you some general background information, including what law school he attended, year admitted to the Florida Bar and academic and bar accomplishments. It also provides a link to the attorney’s web page.

Search the attorney’s web page. After visiting Martindale, visit the attorney’s web page. You can learn a lot about a firm just from how its web page looks. Is it professional looking? Does it look like the firm invested some time and money developing its web page? Does the firm even have one?

Look up the attorney’s profile on the web page. Has he published any articles? Are they on the webpage? You may want to print and review them. Has he received any awards? What are the attorney’s practice areas? Does he practice in a specialized area? Is he a jack of all trades?

Search the internet. Do a Google search for the attorney on the internet and see what you find. Perhaps you’ll find one or more of the articles he has written. Perhaps you’ll find an article about him and his practice. Perhaps you’ll come across an article where he is quoted on a given legal issue.

Perform a jury verdict search. Go on Westlaw and perform a search of all of opposing counsel’s jury verdicts. How many cases has he taken to trial? How often has he won and how often has he lost? When he wins, how big does he win, and when loses, how badly does he lose? What types of cases does he take to trial and what types of cases does he win once he gets there?

Do a caselaw search. Do a search on Westlaw of any appellate opinions where opposing counsel wrote a brief, whether for the appellant or the appellee. See if his arguments convinced the appellate court to find in his favor.

Ask friends. What do attorneys whom you know and respect say about opposing counsel? Is he good at what he does? Can he be trusted? Is he aggressive? Overly so? Or is he mild mannered and easy to get along with? Is he the type to conceive and implement long term strategies or does he does he shoot from the hip?

Check with the Florida Bar. Call the Florida Bar and ask if opposing counsel is an attorney in good standing. Has he been suspended or reprimanded? An attorney with a history of ethical problems may prove problematic.

Read. Read legal news columns. Read similar columns in your local business newspapers. Get accustomed to reading what your potential opponents are doing -- whether they have been appointed to a board, given a lecture or recently switched firms. Keep abreast of what attorneys in your community are doing. That attorney you read about today may be on the other side of the "v" tomorrow.

When you first get a case, don’t just research the facts and the law. Research opposing counsel. What you find may be more useful that what you find in the law library.

Life at the Firm

A law firm is a microcosm. It is a miniature universe, with its own inhabitants, its own rules and its own social construct. To survive in it, you must play the role of anthropologist - you must study this world - its social order, its social behavior, its laws, its politics, its values and its beliefs. And to thrive in it, you must abandon your role as anthropologist and become part of the tribe, you must stop observing this world and start adapting to it, embracing it and making it your own. Do less and run the risk of remaining an observer, an outsider, never becoming part of the clan. Outsiders don’t stick around. They either leave to observe the next tribe or are asked to do so.

So life at the firm begins with learning about life at the firm. No doubt, you will make the following observations:

There is a hierarchy. Like any society, a firm has a hierarchy. As a new member of the society, you start at the bottom. Ignore the pecking order, presume your stature is greater than it is, and you will upset others, namely those above you whom you perceive are beneath you. Being that they are above you, they have the power to make things easy for you or make them difficult. What they do is largely a reaction to what you do.

The firm has a code. Each firm has its own rules, a code if you will. Some are written down, such as in an employee handbook. Most are not. No doubt, you were introduced to some of them during your interview. You picked up some more during lunch conversations with other attorneys. Some rules are obvious and some are universal to every firm.

The hard part is figuring out the not so obvious ones, the ones that define your firm and make it different from others. When are you expected to be in the office? When should you leave? Are inter-office e-mails encouraged? What should an inter-office memo look like? How about interactions with the staff? What is encouraged and what isn’t? To learn the code, seek out a mentor, a senior associate or junior partner, who can teach you the code in its entirety.

Each attorney has a code. In addition to the firm code, every attorney abides by his own code - a set of rules, eccentricities and pet peeves, by which he lives. Some are reasonable, some are not. Some make sense, some do not. Your job is not to tell these attorneys to stop insisting that others do things their way. Your job is to do things their way. Learn each attorney’s writing style, research methods and drafting techniques. Learn how they interact with clients, with other attorneys in the office and with the staff. They do things their way because they believe it is the right way to do things. If you want them to perceive you’re doing things the right way, emulate them. Conversely, learn their pet peeves, and avoid them.

The firm has values. Each firm has a set of values. Some are explicit and can be found in their mission statements. Others are less obvious. Whatever they are, they guide the firm. You will be expected to live by them. If you do not share the firm’s values, if you do not share the firm’s vision, you will not thrive there.

The firm has a dress code. Each law firm has its own dress code. Some expect you to wear a suit each day, some are casual year round, and there are many permutations along the spectrum. But what is considered dressing up and what is considered casual? As with everything else, you need to observe what is considered appropriate and acceptable attire and emulate it. This may require some adjustments in your wardrobe. This will be money well spent.

You’re in or you’re out. If you are going to join a firm, you have to jump in with both feet. Sticking your toe in the water isn’t going to do. You have to embrace the firm’s goals, its mission, its values, its structure, its rules and its hierarchy. Do less, and you will never truly belong. Do less, and you will remain an observer. And the days of an observer are always numbered.

Getting Published

If you want others to see you as an expert in a given practice area, consider getting published. Published articles tell others that what you have to say is important enough and authoritative enough to be in print. But how do you get your article published? Consider the following in order to get your idea read by hundreds, possibly thousands, of others.

Brainstorm. So what do you want to write about? Sit down and brainstorm different ideas worthy of being transformed into articles. Where are you going to find your sources of inspiration? A landmark U.S. or Florida Supreme Court decision can serve as the basis of an article. How about a recent legal trend? A "how to" piece on how to take a deposition or retain an expert? How about an issue a client has asked you to look into? If you’re going to be a writer, always be on the lookout for ideas and ask yourself, "Would this make a good article?" Once you start thinking like a writer, you’ll never be short of ideas to turn into publishable pieces.

Compile a list of potential publishers. Before you sit down to write, decide where you want to get your article published. Compile a list of publications, including trade journals, newspapers, magazines and newsletters, which might be interested in your idea. You don’t know which publication to pitch your idea to? Most bar and trade associations have their own magazines and newsletters, and their editors are always looking for articles to fill the pages of those publications. If you can’t think of any publications to write for, look at the web pages of these associations to see what publications are out there.

Read the publications you want to write for. If you’re going to write something a magazine wants to print you first have to know what it wants. To do this, you need to read the publication. Don’t pitch a story without first knowing what types of articles appear in the pages of that publication.

Read the writer’s guidelines. Many publications provide guidelines about what articles they are looking for, how they want articles pitched, and to whom. Read them carefully and follow the recommendations.

Write a query letter. Once you know who you’ll be writing for, write a letter pitching your idea. In the letter, provide a brief summary of your proposed article, a proposed title, why the piece is relevant to the publication’s readers, your qualifications to write the article and a brief history of your writing experience. To save money on postage and speed up the process, determine whether the publication accepts email queries.

Study the masthead. Most magazines and journals have a masthead, which contains the name of their various editors and staff writers. The list is important, because it will tell you who the different editors are and which one you should address your query to.

Update your resume. The editor you’re pitching your idea to will likely ask to see your resume. Therefore, make sure yours is updated. Include any writing experience and editing experience you have, whether as an editor on law review, a writer for the school newspaper or a contributor to a firm newsletter.

Start small. If you want to see your article in a national magazine or trade journal, start out small and work your way up. Generally, the bigger the publication, the more likely that it does not work with novice writers. Those big publications are looking for authors who have written articles elsewhere and have a proven track record. Generally, the smaller publications are open to working with new writers. Start small, get some experience and climb the ladder to the bigger magazines and trade journals.

Gather clips. Make sure to save any articles, or clips, you publish. Editors will want to see them to get a flavor of your talent and style.

Avoid editors’ pet peeves. If you want to increase the odds that your article will be accepted for publication, avoid the pet peeves of the decision makers. Make sure your query is flawless, with no typos or grammatical errors. If an editor doesn’t want you calling to pitch an idea, don’t. If you’re given a deadline, meet it. If you’re asked to make revisions, make them. Trust that the editor knows best about what the final piece should look like.

Writing an article is only half the work. The other half is getting it published. To get your article published, look for publications which would be interested in your idea, and when you find them, pitch your idea in a persuasive, convincing way. Start out with the smaller publications, and soon you’ll have enough clips to see your name bylined in a piece which is read nationally.

What Judges Expect from the Lawyers Who Appear Before Them

Having attended my share of motion calenders, special set hearings and judicial receptions and luncheons, I have been afforded the opportunity to hear what judges expect from the lawyers who appear before them. What never ceases to amaze me is how uniform their expectations are. Some are obvious. Others are not. However, they all bear repeating:

Be respectful to the court. Never interrupt the judge or speak over her. Surprisingly, it happens more than you think.

Be respectful to opposing counsel. Never interrupt, belittle or berate opposing counsel. Also, never address opposing counsel. Your arguments are always to be directed to the court.

Don’t mislead the court. If the court misunderstands the facts or misconstrues the law, set the record straight. The misunderstanding may benefit your client, but it is an underhanded way to get the upper hand. And by the way, the judge likely will find out that you snookered him. Nothing upsets a judge more than feeling taken advantaged of by the attorneys that appear before him.

Do your best to work things out before appearing before the judge. Most judges agree that many of the motions that land on their desk, particularly discovery disputes, should and could have been worked out without the need for a hearing. Attorneys need to treat the court for what it is - a last resort after they have exerted every effort to work things out on their own.

Don’t waste the court’s time. Judges have many more cases on their dockets than they should. So, not only should not you set for hearing motions that you should be able to resolve with a phone call to opposing counsel, you should make every effort to get to the point on those occasions when judicial intervention is warranted. Cut that ten page motion to six pages. Cut that six page motion to three. Reduce those five arguments to three and those three arguments to two or even one. Figure out the crux of your argument, articulate it succinctly and then stop talking. The court will find your brevity refreshing.

Judges talk to each other about the lawyers that appear before them. Many judges know that lawyers compare notes about the judges they appear before. Guess what? Judges compare notes about the lawyers that appear before them. That lawyer who was rude and obnoxious, who thought that it did not matter because what does one judge’s opinion matter? Well, that judge, who was taken aback by that behavior, may have share the experience over lunch with his colleagues, who will remember those comments the next time that attorney appears before them. Everything we do before a given judge may affect how every other judge perceives us.

What you do reflects on your firm. Just as what you say before one judge may affect how other judges perceive you, what you say may affect how that judge and other judges perceive your firm. You are your firm every time you step before a judge. Your reputation is inextricably tied with your firm’s, and everything you say and do either improves that reputation or diminishes it.

Be self-deprecating. When you think of arguing a motion, humor probably does not come to mind. Of course you should never joke at the expense of opposing counsel or the court. But at times, injecting a bit of humor goes a long way in reducing the tension and stress, particularly if it is self-deprecating in nature.

Judges are no different than the rest of us, and they have the same expectations as the rest of us. Just as we expect good service with a positive attitude when we go to our favorite restaurants or retail stores, judges expect that the lawyers who appear before them to provide good service - to be prepared. They also expect them to do it with a smile, namely, to act professionally.

Travel Tips for Associates

The next time you have to travel for a deposition, hearing or a meeting with a client, keep the following in mind to ensure that your trip goes off with a hitch.

Confirm everything. Confirm everyone’s attendance - the court reporter, the witness, opposing counsel, co-defense counsel. Have your secretary call everyone and confirm that they will be there. You don’t want to find out a key party can’t attend after you’ve already boarded the plane.

Make flight arrangements early. Once you learn you have to travel, make flight arrangements. The sooner you make them, the better fares you’ll get. Also, when reserving a flight, purchase refundable tickets. Often, hearings or depositions are canceled or rescheduled at the last minute. If that happens, you don’t want to be stuck with a non-refundable ticket.

Make sure your car rental agency has its vehicles on the airport’s premises. Time is money. Make sure if you’re going to rent a car, that the car rental agency has its vehicles at the airport. Taking a shuttle to an offsite facility can be very time consuming.

Get a weather report. Check the weather to ensure you’ll be dressed appropriately. Traveling from Miami to New York in January requires a change in wardrobe.

Find convenient accommodations. Instead of staying at a hotel near the airport, find a place close to the deposition or hearing site, to ensure you arrive with plenty of time.

Get detailed directions. Before you leave the office, get detailed directions from the airport to your hotel and from your hotel to the deposition or hearing site. And don’t rely on Mapquest. Online map sites can be wrong and confusing. Call ahead and obtain detailed directions directly from the hotel or the court reporter’s office.

Prepare an itinerary. Have your secretary prepare an itinerary that has all your travel arrangements, directions and any other relevant information. This one-page reference source will prove very useful as you from one from place to the next.

Take everyone’s phone numbers. Have everyone’s phone numbers, from the court report to opposing counsel, in case you need to reach them for any reason.

Allow plenty of time. Whenever you travel, allow plenty of time to get there. Assume there will be traffic, that airport security will be slow, that weather will be bad and that flights will get delayed. Plan accordingly.

Pack snacks. Sometimes you won’t have time to grab lunch when you’re running from the airport to your deposition. Pack some protein or snack bars in your briefcase in case of such an emergency.

Take extra work. Because you’ll be giving yourself plenty of time when you travel, you’ll face some dead time in the airport. Take extra work with you so you don’t lose precious billable time. A lot of things can go wrong when you travel for work. You can avoid most problems by planning ahead. Plan wisely.

Drafting Requests for Production - Getting the Documents You Want

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

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

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

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

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

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

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

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

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

How To Improve Your Research Skills

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

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

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

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

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

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

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

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

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

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

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

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

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

How to Write a Motion in State Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who Should Conduct a Medical Examination?

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

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

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

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

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

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

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

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

Finding the Witnesses You Need

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

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

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

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

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

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

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

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