The Trial Practice Tips Weblog

How to Organize Simple Cases for Trial Without Software

In his post "A Basic Manual System to Organize Materials for Trial," lawyer Paul Luvera describes a step-by-step procedure for preparing for simple trial matters. He concludes, "This isn’t rocket science and certainly software management is probably superior to my procedure, but for simple cases it works for me." It's worth a read.

Fastcase: Free Research for the iPhone

Fastcase is free for the iPhone. There are two good reviews here--

• "Review of the Fastcase iPhone App," at Legal Geekery;
• "Review: Fastcase -- free caselaw and statute research for the iPhone," at iPhone J.D.

Requests for Admissions: Admitting of Denying Part of a Request

A commenter writes--

I couldn't find an answer about how to respond when a requesting party stated many facts in one paragraph, some of which were true and others were not.

Actually, it's easy to admit or deny only part of a request. Here an actual example from a past case--

3. At the time of the purchase of the motorcycle in question, you were present, when Joe Johnson delivered a check on your behalf to the motorcycle dealership in question.

Response: Defendant ADMITS that Joe Johnson delivered a check in his presence to the motorcycle dealership, but denies the remainder of this request.

In this manner, a request to admit can be broken down into parts or sub-parts in order to isolate a particular portion of the request that you want to admit, deny, object to, etc.

Federal Rule of Civil Procedure 36(a)(4) states, in part: "A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest."

Related Post: "Responding to Request for Admissions Under the Federal Rules."

Read About the 7th Circuit's E-Discovery Pilot Program

From the Electronic Discovery Law weblog of K&L Gates:

Beginning October 1, [2009], Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin. The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.

The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”

The first phase of the Pilot Program will end on May 1. To learn, read the full post from Electronic Discovery Law, as well as the Statement of Purpose from the 7th Circuit (pdf).

Trial Tip: Authenticating Web Pages

From Law Technology News: "Authenticating Web Pages as Evidence," by M. Anderson Berry and David Kiernan--

Plaintiff sues your client, claiming that his injuries have significantly affected his lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges loss of consortium. On the eve of trial, you discover pictures and other details on a social networking website about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier. As you approach the witness with printouts of the web pages, you are stopped in your tracks: "Objection, lack of foundation."

This article contains for authenticating web pages and Federal Rule of Evidence 201, 901 and 902. It also has an interesting section about court cases involving the Internet Archive or "Wayback Machine."  

Related post: "Using Emails in Support of Summary Judgment or at Trial."

Objections During Depositions: When and How

From the Atkinson-Baker Discovery Update: "When and How to Object During a Deposition," by Paul Mark Sandler and John J. Lovejoy--

At a deposition, an attorney is required to object to those defects that are immediately curable--that is, irregularities that opposing counsel can correct at the deposition. Such defects include procedural matters, such as the manner of taking a deposition, the form of questions or answers, the oath or affirmation, and the conduct of the parties.

Timely objections are necessary, for instance, where a question is leading, vague or unintelligible, mischaracterizes prior testimony, calls for speculation, or constitutes a compound question. Problems can also arise with answers. If the attorney taking the deposition believes the witness has not provided a responsive answer, that attorney should object accordingly.

There's much more in the complete article. The authors are lawyers at Shapiro Sher Guinot & Sandler.

Depositions: Thirteen Tips

My book about depositions is titled "Deposition Checklists and Strategies" (James Publishing). You can read thirteen practice tips from the book here (pdf), including--

• Impeachment nuggets;
• Uncooperative witnesses;
• Forgetful witnesses;
• Form objections; and
• Controlling witnesses.

An iPhone for You

At iPhone J.D., Jeff Richardson answers the question, "Which iPhone should I buy?"

Making Jury Instructions Easy to Understand

Free to download: "Communicating with Juries: How to Draft More Understandable Jury Instructions," by Peter Tiersma of Loyola Law School Los Angeles.

According to Raymond Ward at the (new) legal writer, "If you’re a trial judge or trial lawyer, you need to read it."

Using Requests for Admission to Simplify Your Case

In preparing your case for trial, don't overlook requests for admissions.

Requests for admissions are powerful tool for establishing proof on matters your opponent won't be able to (or doesn't plan to) to deny at trial.

In an auto case, a plaintiff might simplify the case with requests for admissions like the following:

• Admit that the collision occurred on Vencil Street.
• Admit that the speed limit on Vencil Street was 35 mph at the time of the collision.
• Admit that the defendant was traveling about 55 mph at the time of the collision.
• Admit that the eastbound defendant collided with the westbound plaintiff in the westbound lane of traffic.
• Admit that the plaintiff missed work for a period of time as a result of her injuries.
• Admit that the plaintiff missed work for 193 days as a result of the injuries she sustained in the collision.
• Admit that the plaintiff incurred reasonable and necessary medical bills in the amount of $52,000 from St. Joseph's Hospital as a result of the crash.
• Admit that the injury to the plaintiff's right hip, sustained in this collision, is permanent.

Source: "Jump-start your case with requests for admissions," by J. Franklin Long, Trial, 4/02. (The examples are quoted from a sidebar in the article; there are many more examples in the article.)

Related posts:

1. "Authenticating Exhibits Using Requests for Admissions: Two Methods"

2. "Responding to Request for Admissions Under the Federal Rules"

3. "Discovery Tip: Interrogatories About Requests for Admissions"

4. "Interrogatory Answers "Subject To" Objections: Send a Request for Admission"

Deposing Difficult Doctors: 15 Tips

At the website for the book Deposing and Examining Doctors, by Kim Patrick Hart (James Publishing), you'll find 15 free practice tips from the book.

An example--

Points of agreement. No matter how much of an advocate the defense physician is, you will find things in his report that you can agree on. For instance, this is a perfect time to re-emphasize the points in your client’s history that bear underlining, such as cause of the crash, the severity of the impact, and the fact that your client was wearing a seatbelt. Beginning the cross-examination with five to ten leading questions with which the compulsory medical examiner admits he agrees is a great way to give the impression that there really is not much of a debate about the injury. It also sets up a great closing argument technique.

There's more at the link. Just scroll down . . .

Five More Legal-Writing Tips

Need five ways to improve your legal writing? See my article "Improve Your Legal Writing with Five Simple Rules," first published in the Illinois Bar Journal.

Write Persuasively

After you've written your first draft, you'll want to make sure it's persuasive. You'll find some tips in my article "Five Steps Towards Persuasive Writing," first published in the Illinois Bar Journal.

Writing First Drafts

Writer's block? You'll find a number of tips for writing first drafts in my article "First Drafts Made Easy," originally published in the Illinois Bar Journal.

Conducting Discovery by Focusing on Witnesses

A tip from "A Snipe-Hunter's Guide to Coaxing Answers from Hostile Witnesses," by Judge Ron Spears--

From the beginning, keep a separate folder on each potential witness and maintain a list of facts that witness may be able to testify to and how it could help or hurt your case. Craft questions throughout discovery that will fully elicit the adverse witness's knowledge on those important issues before trial and especially during depositions, always with an eye to use at a later proceeding.

As Spears points out, "You cannot impeach with a question never asked or an answer never given."

The full article can be found in the May, 2009, issue of the Illinois Bar Journal (available online only to ISBA members).

Illinois Practice: Documents Produced by Your Opponent Must Still Be Authenticated

There are two important lessons for Illinois lawyers in the recent Complete Conference Coordinators, Inc. v. Kumon North America, Inc., 915 N.E.2d 88 (2d Dist. 2009)--

• "Evidence that would be inadmissible at trial is not admissible in support of or in opposition to a motion for summary judgment." This means that documents used to support a motion for summary judgment, including emails produced by the other side in discovery, must be properly authenticated.
• In Illinois, production of a document in discovery does not establish the document's authenticity. In other words, you can't establish authenticity merely by arguing that your opponent produced the document in discovery.

Though some states, like Texas, "have enacted civil procedure rules allowing the fact that a party produced a document in discovery to establish its authenticity," the Kumon court declined to establish such a rule in Illinois.

For further discussion of this case, see "eDiscovery issues: Authenticating e-mail produced in discovery," by Scott A. Carlson, Trial Briefs, Vol. 55, No. 4, 12/09 (newsletter of the ISBA's Section on Civil Practice & Procedure).

Related post: "Using Emails in Support of Summary Judgment or at Trial."

Choose a Citation Style, Then Stick To It

Your choices for a citation style?

The Bluebook. The Greenbook. The Maroonbook. Plus others, which you'll find listed in an article at the University of North Texas: "Citing Legal Materials/Legal Style Manuals."

What's important isn't so much the one you use, but that you choose one and use it consistently throughout any single document.

Otherwise, you'll look sloppy, an impression that will cast your legal reasoning in a negative light.

Further reading: "Communicating Your Authority," by Maureen B. Collins, Illinois Bar Journal, 12/03.

My Other Weblog Is Recognized by the ABA

My other weblog, Beyond the Underground (formerly The Legal Underground), was included in the Third Annual ABA Journal Blawg 100.

Here's what Molly McDonough and Sarah Randag had to say--

Beyond the Underground is where we go to keep tabs on St. Louis lawyer/writer Evan Schaeffer. There he lists links to his latest practice management posts from Trial Practice Tips Weblog. A favorite, however, is his “Weekly Law School Roundup” of worthy posts from future lawyers.

Twitter: @eschaeff

Quick Take: Schaeffer has collected and assembled many of his posts to form a sort of e-book, The Sixteen Types of Lawyers, and Other Observations from a Lawyer with a Weblog.

If you haven't read Beyond the Underground, please take a look. It's less law-focused than it used to be . . . but maybe that's a good thing!

Case Law on Google Scholar

The news that Google Scholar now includes caselaw is getting wide play on legal blogs. Here's Google's post explaining the news: "Finding the law that governs us."

Meanwhile, at iPhone J.D., Jeff Richardson provides an iPhone twist--

Lots of blawgs are discussing Google Scholar right now, but I don't see anyone talking about how nice it is that this service lets you view or search for virtually any case at any time on your iPhone (or other smartphone). Now, even if you are out of your office, you can quickly search for cases or pull up a specific case on your iPhone for free.

Finally, Ernie the Attorney gives more background: "Google now helps with legal research."

Google at the Center of Dispute Between Two Wisconsin Firms

At Wisconsin Personal Injury Lawyers Blog, Frank Pasternak writes about "an interesting lawsuit among Wisconsin personal injury attorneys"--

Habush, Habush & Rottier, an old-guard Wisconsin personal injury law firm, is suing Cannon & Dunphy, another such firm for paying Google to link to the Cannon & Dunphy website when Google user searches the name Habush or Rottier. It's actually quite interesting given that the Habush law firm was one of the first to advertise quite heavily on T.V. here in Wisconsin, but was one of the last among major Wisconsin personal injury law firms to start advertising on the web.

More details in the full post.