The Trial Practice Tips Weblog

The Need for Appellate Lawyers

In a post titled "Use the right tool for the job," Brad Parker of Where's Travis McGee? posted about the need for litigants on appeal to hire a lawyer who specializes in appeals.

Brad's post highlighted an article in Corporate Counsel titled "Changing Horses Midstream," by David Walk. Now Brad has obtained permission to republish that article on his weblog. This link is here.

Arguing a Motion Before a Trial Court: Begin at the Beginning

This morning as I stood in line waiting my turn to argue a motion, I listened to some of the other arguments. It was a typical state-court docket call, in which the judge sat at his bench and waited for the lawyers to approach him with the file when they were ready to argue.

What ensued in most cases was four or five minutes of confusion, as the lawyers launched into their arguments without properly setting the stage for the judge.

What do I mean by "setting the stage"? I suppose each argument is unique in some respects, but I typically introduce myself; tell the judge which party I represent, including whether it's a plaintiff or defendant; describe the motion that's being argued (e.g., "We're here on my motion for a protective order"); and state the legal issue to be decided in a way that makes my position evident ("A protective order is necessary because the defendant wants my client to travel out of state for his deposition, when the rules do not require that"). Only then do I get into the facts and the law.

It seems hard to believe that lawyers would start their argument any other way. What I heard today, though, was lawyers starting smack in the middle of their arguments, e.g., "Your Honor, two weeks ago, the defendant's lawyer sent me a deposition notice for my client. It stated that the location of the deposition is in Indiana, where the defendant is headquartered. As your Honor knows, that's 300 miles away. I then filed a motion for a protective order. That's what we're here today about."

Eventually, you end up at the same point. If you begin at the beginning, however, you'll leave the judge feeling less confused, since he'll know from the start what he's going to be called upon to decide. That's information I think he'll want to know.

The ISBA v. We The People

Carolyn Elefant of My Shingle has an interesting post about the Illinois Bar Assocation's position on legal-document preparers: "If We Can't Beat Them, Let's Compete With Them!"   

In Carolyn's view, rather than trying to shut down the legal-document preparers altogether, lawyers should try to "persuade clients that the value that attorneys can add to living wills and bankruptcy petitions and uncontested divorces justify the added cost." In her post, Carolyn offers some ways that lawyers could do a better job of competing with these services.

It's a very interesting post, but something bothers me. Carolyn admits that shoddy legal work performed by document-preparation services is a "significant problem." She also says that the FTC has fined We The People for "deceptive advertising practices." That's enough for me to say "shut 'em down." I've had clients in my own practice come to me with legal problems caused by document-preparation (and similar) services--in particular, one very large and costly one that couldn't be undone. Arbitration clauses and forum-selection clauses make some of these companies very hard to sue. It's often much harder than suing a lawyer. (My personal experience, by the way, did not involve We The People.)

In summary, Carolyn's argument is persuasive, but it didn't change my mind. If legal-document preparers are deceiving and misleading the public, which I think many of them are, it's reason enough for me to think that it's often a good thing when lawyers have a monopoly on legal services.

How Lawyers Can Use Technology to Improve Their Practice

David Swanner of the South Carolina Trial Law Blog has a wonderful guest post today at Notes from the (Legal) Underground titled "Twelve Ways Technology Can Make You a Better Trial Lawyer."

It's an amazingly comprehensive post, and one that deserves to be bookmarked: after reading it, I guarantee you'll want to return and read it again.

More Thoughts About the New Class-Action Law

I'm quoted in a St. Louis Post-Dispatch article about the new federal class-action law: "Reality may stymie desired effects," by Paul Hampel--

Evan Schaeffer, a Godfrey plaintiff's attorney who specializes in class-actions, says without the flexibility of coupon deals, more corporations may find themselves risking what he calls "bet-the-company verdicts."

"It's the defendant who favors coupons; a plaintiff's lawyer would rather have a cash deal," Schaeffer said. "A defendant wants to get out as cheaply as possible, so they propose a coupon settlement."

There's that, and more, in the article. Link.

Thoughts from a Defense Perspective on Requests for E-Mail Messages

From the law firm of Quinn Emanuel: "E-Mails and Discovery--Dealing With The Nightmare"--

Business litigators have by now learned that e-mail discovery is both a potential gold mine and a potential nightmare. Something about the medium causes people to make informal comments they would never dream of putting "on paper." And, people tend to be more cavalier about "destroying" e-mails relevant to litigation than they would paper. They just do not think of them as "documents."

The article goes on to discuss ways of persuading a judge that producing e-mails would be too burdensome. "If a judge can be made to understand why a request to retrieve old e-mail messages would make a company’s MIS personnel go pale with dread, the odds of that judge forcing the company to go to that effort will greatly decrease."

The Basics of PDF

Every litigator should know the basics of PDF, which stands for "portable document format." You can learn the basics here: "Perfecting PDF Files," by Brett Burney.

Daubert Tracker

Have you used Daubert Tracker? I haven't, but I'm intrigued by its database of information about expert witnesses and Daubert-related court decisions. The pricing seems reasonable, too, so I'm going to try it out the next time I'm preparing for an expert deposition.
 

The ISBA Form Exchange

According to Helen Gunnarsson, the editor of the ISBA Trial Practice Update, the ISBA Form Exchange is "up and running." It's in need of forms, however, so why not donate some?

The ISBA Trial Practice Update is a service for Illinois lawyers. You can find out more at the ISBA's website.

Causation in Toxic Tort and Pharmaceutical Cases

In toxic tort and pharmaceutical litigation, cause-and-effect between a chemical agent and the onset of a disease process often cannot be specifically determined. In the diet- drug litigation, for example, the experts on both sides speak of an "association" between the use of fenfluramine and the development of heart-valve damage; to say that the use of fenfluramine "causes" heart-valve damage, however, is scientifically incorrect.

How can you prove causation in such a circumstance? Answer: with expert testimony founded on epidemiological evidence.

If you are researching the standards for such proof in Illinois, a good place to start is Donaldson v. Central Illinois Public Service Company, 199 Ill. 2d 63, 767 N.E.2d 314 (2002) (pdf), a toxic tort case involving a type of cancer allegedly caused by an environmental hazard. In Donaldson, the court upheld a $3.2 million award for plaintiffs even though defendant's experts, which included the treating physicians, testified that (a) the cause of the plaintiffs' cancers was unknown, and (b) that they could not say whether the plaintiffs' cancers were caused by their exposures to the hazard. The plaintiffs, on the other hand, presented expert testimony by an epidemiologist, a toxicologist, and a medical doctor specializing in occupational medicine.

It was the plaintiffs' evidence that carried the day, according to an extensive analysis by the Donaldson court of how expert testimony can be used to establish causation in a toxic tort case.