The Trial Practice Tips Weblog

Learning to Be Comfortable in a Courtroom

The best trial lawyers move with such ease around a courtroom that you'd think they were trying the case in their own living rooms. When you're up against such lawyers, you'll be surprised by how disarming it can be. Sometimes their mistakes just won't seem to matter. In fact, you'll wonder, was that a mistake at all?

While this sort of confidence comes only with experience, there are some shortcuts you can take to being comfortable in a courtroom. Try these six:

• Meet with the Judge Every judge has special trial procedures and quirky personal rules that are best learned before you violate them. The more you know about the judge's personal trial procedures ahead of time, the more comfortable you'll feel at trial. Question the judge at a pretrial conference or arrange a meeting that's convenient for opposing counsel. Put the question as directly as possible: "Your Honor, do you have any special trial procedures that I should know about?"  Don't worry about sounding like a novice; you won't.
  
• Talk to Other Lawyers Asking the judge directly is good, but so is asking other lawyers. Find out about as much as you can about the trial judge by asking lawyers with firsthand knowledge. Does the judge require more formality or less? Will he impose limitations on your ability to move around the courtroom? How is his demeanor? What sorts of things will make him angry?
• Learn the Layout of the Courtroom If you're trying a case in an unfamiliar courtroom, spend some time there the week before. Consider where you'll sit, where you'll put your files, and how you'll get from one place to another with a jury box full of people who will all seem to be watching your every move. If you have an extensive computer set-up, conduct a dress rehearsal with your staff. You'll be glad later that you did.
• Get to Know the Courtroom Personnel I suppose some lawyers don't take the time to learn the names of every member of the judge's staff before the trial begins, but it's not only risky, it's rude. Try to do more than learn their names; engage in some small talk and get to know a little about them too. Not only will you appreciate their smiles after a difficult day of trial, but they might be a big help when it comes to courtroom logistics. During a trial, you can't have too many friends.
• Be Yourself Sure you've seen some great lawyers who you'd like to imitate at trial, but it just won't work. You're a lawyer, not an actor. Focus on the lawyering, try not to be too self-conscious, and don't be hard on yourself when you mess up. The showmanship may come naturally, but if not it won't matter: you'll be acting like yourself, which will make everyone happier (and much more comfortable) in the end.
• Overprepare There's no better way to make sure you'll be relaxed at trial than to overprepare in the weeks before it starts. You won't be able to prevent the heart-stopping surprises that complicate every trial, but you'll be more likely to keep your cool when they come.
  

Avoid Embarrassment: Learn About the Metadata You're Creating

If you're like me, you probably don't pay enough attention to the hidden data you generate every time you use a program like Word or Word Perfect. It's a risky attitude that's burned a lot of people. You can learn how to avoid that fate by reading "Mining the Value from Metadata," my latest DiscoveryResources.org column with Dennis Kennedy and Tom Mighell.

As I see it, you can't go wrong reading the column. Not only is it a very simple way to avoid lots of future embarrassment, but it's filled with tips too. Bookmark it for later use.

Related post: "Electronic Discovery: 'Metadata' Becomes a Sexy Word."

Should Jurors with Relevant Professional Experience Be Instructed Not to Use It?

At the National Law Journal, Leonard Post writes about jurors who use their professional experience to unfairly dominate jury deliberations. In "Dealing With Jurors' Expertise," Post highlights the problem with a quote from a Nixon Peabody litigator:

If a juror has applicable professional expertise and uses that expertise to make a new point in deliberations -- which may be wrong -- there is no ability by either side to respond to it. The result is that you have a verdict based on one juror's conclusion -- not 12.

In New York, jurors are specifically instructed that they "may not communicate any personal professional expertise." This is contrary to the instruction found in many states that jurors should use their experience and common sense in reaching their decision. Not surprisingly, the New York instruction comes in for a lot of criticism in the article.

Isn't jury selection the better time to address any potential problems caused by juror experience? As one judge said in the article, "Lawyers who allow a juror with professional expertise on a jury in a case that involves that expertise ought to have to live with the results." It's not a perfect solution, but staying atuned to the professional expertise of potential jurors during jury selection seems a better alternative than confusing jurors with an impossible-to-follow instruction.

Chief Justice Roberts on Remand: No Presumption in Favor of Awarding Fees

At Legal Underground, there was a discussion in the comments a few months ago about a 7th Circuit opinion in which Judge Easterbrook ruled that a case had been improperly removed to federal court. He ended his opinion like this: "[W]e also invite the plaintiffs to file (in the district court) an appropriate request for reimbursement of the additional legal expenses to which they have been put by [defendant's] efforts to move this litigation from state to federal court."

Judge Easterbrook's invitation to seek fees was based on 28 U.S.C. § 1447(c), in which a federal district court can order payment of fees and expenses when a case is remanded back to state court. Under the 7th Circuit's approach,  § 1447(c) has been viewed as a fee-shifting statute in which Plaintiffs are presumptively entitled to fees.

This is no longer the law after Chief Justice Roberts' opinion in Martin v. Franklin Capital Corp. Writing for a unanimous court, Roberts stated:

[T]he standard for awarding fees should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.

The "objectively reasonable" standard effectively abolishes any presumption in favor of an award of fees upon remand.

Seeking a New Judge as Matter of Right in Illinois

Under 735 ILCS 5/2-1001(a)(2), each party is entitled to one substitution of judge as a matter of right. Here are some things to keep in mind about the substitution process:

• The motion for substitution must be made before the judge has made a substantive ruling in the case;
• A substantive ruling is one that addresses the merits of a case. For example, a motion granting an extension of time to plead or an unopposed motion to amend would generally not be considered substantive;
• It is not necessary to give a reason for the substitution;
• The right of substitution belongs to the individual parties. Thus a single lawyer who represents two parties may move for substitution twice, once on behalf of each party he represents.
• A judge who has reason to believe that a motion for substitution was filed merely to delay or avoid a trial may deny the motion on those grounds.

Note: This post was based in part on information found in Illinois Pretrial Practice, by Judge Jennifer Duncan-Brice, James P. Flannery, Jr., Timothy W. Kelly, & Kevin G. Owens (James Publishing 2005).

UPDATE: There is more information about what types of rulings are "substantive" in "Seeking a New Judge as Matter of Right in Illinois: What Is a 'Substantive' Ruling?"

Giving Legal Research Assignments to Others

How do you give research assignments to junior lawyers? Probably in a way that leaves the junior lawyer wondering exactly what he's supposed to be doing. That was my experience anyway when I was a junior lawyer who used to get a lot of assignments. After awhile, I learned to stick around in the senior lawyer's office until I'd figured out exactly what my assignment was. Remembering to ask questions before I got started was a good lesson to learn.

These days, I'm often on the other end of the transaction. I'm sure I make the same mistake I once complained about: not providing enough information. Here are the basics I try to cover--

• The name of the case, the identity of the party we represent, and how to bill the time;
• The issue that needs to be answered;
• The facts of the case I think are most pertinent to the issue;
• The procedural posture of the case and how the work product will be used--for a motion to compel, for a response to a motion for summary judgment, for an evaluation letter to the client, etc.
• Whether I think the issue has been researched at any other time in the office, and how to find the old research;
• The result I want to reach, i.e., what I'd like the answer to be, if possible.
• The approximate amount of time I think the project should take, and the form it should take when it's returned to me--an informal memo, a formal memo, a legal brief, a draft letter, etc.

After this, I ask whether there are any questions, and I end with a reminder to return if there's any confusion, especially if the alternative is a waste of a lot of time.

How to End a Deposition

It's what happens between the start and the finish of a deposition that really counts. Even so, since I've written about starting a deposition, it can't hurt to write about how to end one too.

If the deposition is being taken to preserve testimony for trial, then you should end the deposition like you end trial testimony: on a high note and with a flourish. This post, however, is designed mostly for those who are taking discovery depositions. The important thing to remember about a discovery deposition is that you shouldn't end it too quickly. Take a break to look over your notes. Have you covered everything you planned to cover? Have you followed up on any important answers?

Even veterans end their depositions by reviewing what has come before. Since it might be the only chance you have to question the witness before trial, don't allow yourself to feel rushed. Don't allow your opponent to rush you either. Remember that during depositions, opposing counsel should largely be ignored.

Procedurally, there is nothing magic that you need to do at the end of the deposition except to say, "I'm done for now." The other lawyers who are present then get to ask questions until everyone is finished; if another lawyer asks questions, you can follow up yourself. 

At the very end of the deposition, the witness will have to be advised about the procedures for reading and signing the deposition or, in the alternative, "waiving signature." If the witness is represented, his own lawyer will advise about signature. If this task falls to you, say something like this--

The questions and answers today will be typed up by the court reporter into a deposition transcript. You have the right to read the deposition and review the answers. In the alternative, you can also rely on the accuracy of the court reporter to have taken down everything you said accurately, in which case you can waive the requirement of signature.

Whether you should insist in some cases that the witness read and sign is beyond the scope of this post, but an update might be coming soon, in which case I'll provide a link here.

Proving Future Pain and Suffering in Illinois: When Is Expert Testimony Necessary?

Here's the First District in Stift v. Lizzadro on the issue of whether expert testimony is needed to prove damages for future pain and suffering:

[L]ay testimony will only suffice to warrant a jury instruction on future pain and suffering when the existence of the plaintiff's ongoing pain and suffering would be readily apparent to a lay jury from the nature of the injury. See Maddox, 265 Ill. App. 3d at 1010-11, 639 N.E.2d at 167. In Maddox, the court effectively articulated and analyzed this rule as follows:

Where future pain and suffering can be objectively determined from the nature of an injury, the jury may be instructed on future pain and suffering based on lay testimony alone or even in the absence of any testimony on the subject. Where future pain and suffering is not apparent from the injury itself, or is subjective, the plaintiff must present expert testimony that pain and suffering is reasonably certain to occur in the future to justify the instruction. Maddox, 265 Ill. App. 3d at 1011, 639 N.E.2d at 167.

The Stift court held that the trial court had properly refused the plaintiff's instruction on future pain and suffering where the plaintiff's pain was not readily apparent to the jury and the expert's testimony about future pain and suffering was ambiguous.

Wikis as a Repository of Legal Know-How

After writing about wikis on Monday, I received word of a project to use a public wiki to create a library of legal know-how. It's called Wikilaw and bills itself as "an open-content legal resource."

The project's founders, Aaron and Rob, describe themselves and their project like this:

Aaron and Rob graduated from a law school in New York. Realizing that they would not be completely satisfied with working for a corporate law firm or climbing the ivory towers of academia, they began exploring a series of ideas to transform the legal system in America.

Aaron was the former Editor in Chief of his law school's Law Review and Rob was arguably the school's top student and a Note Editor on the Law Review.

After much debate, the two agreed to start Wikilaw with the hope that legal information could be created collaboratively and freely shared among lawyers and other interested individuals. The two hope that the Wikilaw community will continue to grow and turn into a valuable resource for everyone.

Wikilaw is brand new but worth checking out for the concept alone. I expect there will be other, similar projects--if there aren't already--based on the fact that when I was at BlawgThink 2005, I heard a lot of talk about lawyers about using public wikis as a repository of legal knowledge.

UPDATE: Here's another legal wiki: the Louisiana Law wiki, courtesy of Ernie the Attorney, who was also writing about wikis today.

UPDATE II: Still another public law-related wiki is Wex, which is sponsored and hosted by Cornell Law School. Thanks to Diane Murley of Law Dawg Blawg for the tip.

Collaboration Between Law Firms Using Wikis

Although there are many ways for lawyers to collaborate in a secure environment using the Internet, many of the "solutions" require the use of an outside vendor or other IT professional. At the BlawgThink 2005 conference in Chicago, I learned that some lawyers have had success collaborating between firms using wikis, a solution that's both inexpensive and within the technical reach of many lawyers.

A wiki is a type of website that "allows users to easily add and edit content" and is "especially suited for collaborative authoring." A wiki can be password-protected. Although I'm using a password-protected weblog to collaborate with another firm, a wiki would give me more options for storing and sharing information. The lawyers I talked to at BlawgThink suggested that I establish an account at Hosting Matters, which enables users to set up a basic wiki with the push of a button.

I haven't done it yet, but I might. I'm also exploring other options by reading the Legal Extranet Blog, which contains information about a number of more traditional solutions to multi-firm-extranets.