The Trial Practice Tips Weblog

Common Appellate Mistakes

From FindLaw: "Appeal in Error: Common Mistakes Made in Appeals," by Scott P. Stolley--

After a trial, the losing party often has too much at stake, emotionally or financially, to let the verdict stand unchallenged. Appeal is the next option, but many litigants do not fully understand how different an appeal is from a trial. They may also underestimate the differences between trial lawyers and appellate lawyers. These differences may be overlooked when inexperienced litigants launch an appeal.

The mistakes discussed in the article include selecting the wrong counsel, misanalyzing the appeal, and underestimating the costs.

The article's author, Scott Stolley, was the editor-in-chief of a book co-edited by Raymond Ward of Minor Wisdom: A Defense Lawyer's Guide to Appellate Practice.

Tort Reform and Jury Selection, Cont.

In a recent e-mail exchange, a lawyer friend recounted the way one plaintiffs' lawyer he knows once dealt with tort reform during jury selection--

In voir dire, he asked people directly about the tort reform billboards that are sprinkled around the state, and more generally about frivolous suits. He then asked how many people think there are too many frivolous suits, and sure enough, everyone thinks there are and points to the McDonald's case. I think he also asked about lawyers advertising on TV, and they didn't like that either.

And then he said (I'm paraphrasing here) "I agree with you that there are too many frivolous suits, and too many lawyers who will take those, and I sure hope you're not getting my client's case mixed up with all those other bad suits." He spent some time talking about the legal system, and came awfully close to sounding like a tort reform advocate.

I've heard different variations on this theme, and it's something to keep in mind for both plaintiff and defense lawyers.

Related posts: Dealing with Tort Reform in Jury Selection; "Jury Selection in the Era of Tort Reform"

The Class Action Fairness Act of 2005

On Notes from the (Legal) Underground, I offered some thoughts today about the real-life effects of the Class Action Fairness Act of 2005, if it's signed into law as expected. The post is titled "Thinking Out Loud About the Federal Class-Action Bill."

Are You a Lawyer Who's Thinking About Starting a Weblog?

Today I'm taking a break for the usual trial-related programming to bring you a post by Dennis Kennedy: "What Are the Most Common Mistakes a New Legal Blogger Makes?"

As I've said before, Dennis Kennedy inspired me to begin a weblog when I heard him speak at the Missouri Bar's annual meeting in Columbia, Missouri. A second inspiration was Google: I couldn't figure out how to get Google to index my law-firm website. When I started my weblogs, however, which linked to my firm's site, it finally allowed Google to "see" it. As a result, my firm's website became much more visible in Google search results.

The State of the Art in Courtroom Tech

From FindLaw's Modern Practice: "The Dawn of Digital Litigation: Media Tools in the Courtroom," by Kelly Q. Ryan--

Whether you are in a firm with resources or you're a sole practitioner, still paying ten cents per copy, Litigation Media is within your grasp. If you decide to "self-produce" your litigation tools, the most common program would be PowerPoint. Utilizing the simple slideshow feature, distill your case down to its most powerful elements. Advanced users will know how to add wipes and fades, but even a slideshow with no special effects can have an immeasurable impact on information retention and persuasion.

Ryan goes on to explain what's new in "Litigation Media," including software packages such as TrialDirector Suite 4.5, DocumentDirector, Sanction II, and Trial Pro II. She also gives tips for deciding when you should hire a consultant.

Get Along With Opposing Counsel

Get along with opposing counsel--that's the advice of Texas lawyer Knox D. Nunnally in an article (pdf) first published in Texas Lawyer:

Years of trial combat taught me it is far better to try to get along with the other side rather than allowing everything to become a heated battle. It seems today that so many of our relationships with opposing counsel deteriorate more quickly; cases become almost exclusively a motion practice, with personal recriminations creeping into the pleadings and arguments.

Read the article for other tips, including the following: get to know the people at the courthouse, read the rules of procedure, know how to deal with pressure, and more.

Mediation: Common Mistakes to Avoid

In keeping with yesterday's theme--the rise of alternative dispute resolution-- here's a list of five common mediation mistakes from an article titled Common Mistakes in Mediation Advocacy:

• Not being prepared;
• Not preparing the client;
• Failing to make it clear that you plan to go to trial;
• Wasting your opening statement; and
• Failing to have full settlement authority.

The article is unsigned, but all the points are good ones. Recommended.

One Reason It's Hard to Get Trial Experience: Cases Are Much Less Likely to Go to Trial

From the Cincinnati Business Courier: "Legal battles far less likely to go to trial than during 1980s," by Kathy Robertson--

The prevailing image of litigation involves a judge and jury, yet the number of civil trials in federal courts nationwide has dropped a whopping 60 percent since the early 1980s, a new study shows.

This turnabout comes as just about every other indicator of legal activity has increased. There are more lawyers, who file more cases that take longer and cost more than they used to, but there's been a sharp decline in criminal trials, bankruptcy trials and trials in state courts, too.

"The general reaction, both among lawyers and judges, is surprise when they see the numbers," said Marc Galanter, an author and law professor at the University of Wisconsin-Madison, who wrote an article about the subject in the November edition of the Journal of Empirical Legal Studies.

Galanter was looking through legal literature when he noticed that the pattern holds true across criminal, civil and bankruptcy court systems.

The number of civil trials in federal courts dropped almost 60 percent between 1982 and 2002. Civil trials in state courts dropped 28 percent over the same time period. Yet the number of plaintiffs, motions, defenses and length of time consumed per case all increased.

One of the main causes for the descrease in trials is said to be the rise in alternative dispute resolution. There's more in the article.

A Move to Require Medical Experts to Be Located Nearby

An article in the December 2004 issue of Psychiatric Times discusses a movement to curtail the "traveling expert''--

The current effort to hold expert testimony by physicians as constituting the practice of medicine is another attempt to curtail the "traveling expert." In recent years, ostensibly to improve the quality of expert testimony, a number of states have required licensure in the jurisdiction of the forensic examination or testimony (Reid, 2000).

Tennessee legislation (Tennessee Code Annotated, undated), for example, states:    

No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established [in a malpractice action] unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person's expert testimony relevant to the issues in the case.

In 1998, the AMA adopted a policy that expert witness testimony by physicians be considered the practice of medicine subject to peer review.

The article, titled "Discrediting the Expert Witness on Account of Bias," by Ralph Slovenko, J.D., Ph.D., also contains a good discussion of some of the policy concerns underlying the rules that determine the parameters of expert cross-examination.

A Wired Courtroom

From Wired: "For Verdict, Click Here." It's a short piece about the technology inside Courtroom 23 of Florida's Ninth Judicial Circuit.

I heard about the Wired article in Denise Howell's fifth podcast at Bag and Baggage, available by following this link. Denise is a pioneering lawyer-podcaster, and if you haven't been listening to her podcasts, you're really missing out.