The Trial Practice Tips Weblog

Need the Discovery Rules from Another State?

Do you often find yourself hunting around for the discovery rules from a distant state? Now you can look no further than a very helpful compilation from Atkinson Baker Court Reporters titled "Index of State Discovery Rules." (As with all Internet-based law sites, if the content of the rule is critical to your research, make sure to double check the information for accuracy.)

Recommended Reading About Arbitration Clauses: Bess v. Direct TV

In Bess v. Direct TV, No. 99-L-55A (8/24/04), the Fifth District reversed a determination by the trial court that an arbitration clause was unenforceable, but remanded so that the trial court could consider plaintiff's other arguments why arbitration should not be compelled.

The decision offers an interesting look at the interplay between the law of arbitration and class actions. In the Bess case, plaintiff filed a putative class action arguing that the defendant's late fee violated consumer laws. The plaintiff's agreement with the defendant included an arbitration clause, which the defendant moved to enforce in the trial court. The motion was denied, but the defendant took an interlocutory appeal.

The Bess court reversed, disagreeing with the trial court that the failure of the arbitration clause to provide for a class action remedy made it unenforceable. In so holding, the Bess court relied on the recent U.S. Supreme Court case on arbitration clauses, Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 156 L.Ed. 2d 414, 123 S.Ct. 2402 (2003).

[Below the fold: More about arbitration and class actions in Illinois.]

A Simple Tip for Controlling Witnesses on Cross-Examination

A simple way to keep a hostile witness under control is to ask questions that can be answered only one of three ways: "yes," "no," or "I don't know." If given no opportunity to explain, the witness won't try to do it as often.

As is true of any good cross-examination, this method requires you to ask very short questions. It's a good habit to get into. You'll use the short questions to lead the witness in the direction you want him to go, rather than the other way around.

More From The Uncivil Litigator

In my post "Trial-Blogging After the Fact," I wrote about The Uncivil Litigator's presentation of his first jury trial. Today I posted an update to the post which provides links to the rest of UCL's story.

It's well worth reading. Here are a few highlights:

From Chapter 7: At that point, I rested my case and it was the defense's turn. This is when the real fun began and I realized that I was born to be a litigator, because the thrill I got from the following cross-examinations had my adrenaline pumping.

From the Conclusion: When I returned to my law firm, my colleagues' reactions were hilarious in their excitement. You'd think I just won the Scott Peterson trial. Plenty high fives from associates, partners interrupting phone conferences to run into my office, the firm liquor cabinet opening up, the whole bit. The entire experience, from morning to verdict, was an absolute thrill, and let me tell you that, now, there is nothing I look forward to more than going to trial.

Good stuff. Also be sure to check out this interesting war story about UCL, UCL's wife, and the federal government.

Jury Selection: Eliminate the Biased Jurors

According to trial lawyer Ervin A. Gonzalez, this is the first goal of jury selection. The second is to educate the jurors about the issues in the case:

[E]ducate the potential jury on the issues in the case. This will allow you to determine if a juror is well suited to decide the case before him or her. It is obvious that some jurors, because of their personal experiences, are better suited to sit on certain juries than others. For example, if one juror is a businessman who has been repeatedly sued for breach of contract, he may not be the best juror in a commercial breach of contract case. Similarly, if a potential juror has been the victim of numerous crimes, she may not be well suited to judge a case involving conversion.

Many more tips on jury selection can be found in Gonzalez's article, Jury Selection.

Technology: Your Friend in the Discovery Process

From the National Law Journal: "High-Tech Evidence: A Lawyer's Friend or Foe?" by Tresa Baldas--

Criminal and civil attorneys alike say that in recent years they have tapped into new sources of electronic data -- from cellular towers, electronic toll booths and auto-location tracking devices -- that make it easier to prosecute crimes and support claims. . . .

Information from cellular towers, for example, is being used to track down kidnapping and murder suspects. E-ZPass and other tollbooth records are being subpoenaed by divorce attorneys to catch cheating spouses, or prove a parent isn't around enough in a custody case. Data from tiny black boxes that monitor a car's movements are being subpoenaed by insurance companies investigating accident claims. And state agencies are using new high-tech software to catch tax scofflaws.

Much of the article is about privacy concerns. While those issues are being debated among the experts, however, you should be asking yourself: Are your seeking the right information in discovery?

A Website About Electronic Discovery

It's called DiscoveryResources.org, and it might be very helpful to you in finding your way through the maze of electronic discovery. For example, this page contains a number of useful articles about the basics of electronic discovery, including "E-Discovery: It's All About Preparation, Preparation, Preparation — Part I & Part II," by Linda B. Katz (May/June 2004, The Metropolitan Corporate Counsel) (PDF).

Dennis Kennedy writes a column for the site called "Electronic Discoverers." His co-author is George Socha. Their latest column is titled "The Many Unexpected Benefits of Electronic Discovery."

Use Demonstrative Evidence in Opening Statement

In a previous post about do's and don'ts in opening statement, I noted that lawyers should "use visual aids and portions of depositions" in their opening. In his online "Advanced Trial Handbook," Florida lawyer Ervin Gonzalez agrees:

Demonstrative evidence should be used during the opening. This will greatly increase the jury's understanding of what the evidence will actually show. Moreover, it directs the jury's attention to important evidence and allows them to recognize it once it is introduced during trial. For example, in a breach of contract case, you should blow up the relevant portion of the contract around which the dispute developed. Show that portion of the contract to the jury and read it to the jury during the opening statement. The opposition has no valid basis to object to your doing this provided that the portion of the contract that you are showing to the jury will be accepted in evidence.

In a personal injury case, you should use diagrams, charts, and/or photo enlargements showing how the incident occurred and what injuries were sustained by your client. Use the charts to explain the complex engineering and medical terms that will be heard throughout the case.

If the judge will allow it, key portions of videotaped depositions can also be used to very good effect in opening statement.

Can You Make Your Depositions Shorter?

It's been my experience that depositions often go on much longer than is really necessary. Since I've contributed to the problem as much as any other lawyer of my acquaintance, I thought I'd do penance by coming up with some suggestions for keeping depositions short.

• Don't cover the same ground twice. It seems to happen fairly often that towards the end of a deposition, the questioner returns to topics that have already been adequately covered. You can make sure this doesn't happen to you by following an outline that has some logical method of organization, even if it's known only to you.
• If you don't know why you're asking a question, why bother? Keeping depositions as short as possible requires some preparation and planning. Before you begin, be sure to understand what you hope to accomplish during the deposition, how the deposition fits into the overall discovery plan, and how the deposition will be used at trial.
• If the witness is rambling, assert control. Of course, there can be good reasons for allowing a witness to ramble. For example, it might mean the witness is volunteering information that is useful to you. At other times, however, the witness might just be a nervous talker or a selfish time-waster. In this case, feel free to politely interrupt to tell the witness he has gotten off track. Then start over by asking the question again.
• Omit the throat-clearing questions and get to the point. Often, lawyers circle around and around for hours before they finally get to the key questions for which they noticed up the deposition in the first place. If this describes you, refer back to Rule #2: Why are you asking all those throat-clearing questions? Sometimes it helps to engage in the fun practice of beginning a deposition smack in the middle with the most difficult questions first. This strategy is guaranteed to catch both the opposing lawyer and the witness off guard, and in certain situations, it can be very effective.
• Do you really need the deposition at all? Here's another great way of keeping depositions short: cancel them if they're not really necessary.
• Know when to violate these rules. There are situations calling for very lengthy depositions, and if that's the situation you're in, so be it. But for the great majority of depositions, the three-hour rule in Illinois requires you to know how to keep depositions short. If you think you're pretty good at it already, ask yourself how you'd conduct the deposition differently if you were given only two hours. It can be a very useful exercise, and it might help to get you home by dinnertime.

Weasling Out of Jury Duty--or Not?

In a time when even Oprah has to deal with jury duty, the ABA has announced the results of a new poll: many Americans trust the jury system and don't consider jury duty something they want to weasle their way out of.

For more, see the ABA's press release: "New poll shows strong support for jury system." A related National Law Journal article is here. Thanks for the links to Helen Gunnarsson, author of the ISBA Trial Practice Update.