The Trial Practice Tips Weblog

Miscellaneous Litigation Tip: The One-Box Rule

Here's a well-known tip that bears repeating. No matter how many thousands of documents your case involves, begin as soon as you can to pare them down to a single box. Near the end of the case when you're preparing your exhibits for trial, force yourself to stick to the rule: no more exhibit than will fit in a single box.

Even if you think your case is just too big, the one-box rule is still a good organizational technique that will help you visualize the essence of your case. Lawyers implement the one-box rule in different ways, but the most common is to keep a running list of "hot documents." It's these documents that go into the box. Later, after discovery is complete, you can pick the top 25 for a "hot hot" list.

If you're working on a team, the top 25 documents can all be given a unique name, which will make them easier to discuss among the group: "the break-up memo," "the death list," or whatever catchy title most aptly reflects the tenor of the document. These are the documents from the single box that you'll return to most frequently during trial.

Notes on a Paperless Law Office by Ernest Svenson

Back in May at the Illinois Trial Practice Weblog, there was a discussion about paperless law offices that began with this post: "Do Away With Paper Entirely? Not Me." There were lots of comments, which was nice, but no one convinced me that I should be scanning every piece of mail that comes into the office--mail that includes stacks of medical records and bigger stacks of pleadings I receive mostly because everyone on a lengthy service list gets them.

Since then, there was a good explanation by Ernest Svenson of how a paperless office can be organized in "Managing an electronic case file." There's a link within the post to some presentation notes on the same topic, titled "Organizing Cases Electronically" (pdf).

It's good information. I've added it to the mix, although I can't say it changed my mind. So much of what comes into my law office just isn't necessary to have stored on a computer. As long as I can find the paper versions of the specific medical records and pleadings on the few days I'll need them, I'll be happy; I don't need the additional distraction of scanning everything and making sure the resulting computer files get into the right folders.

As I said before, however, I'm probably just hopelessly backwards, living in regretful ignorance of how I could be saving time the "modern way."

Is There Anything Lawyers Can Learn from the Success of Mark Lanier?

There's a flattering profile of asbestos-lawyer-turned-Vioxx-specialist Mark Lanier at Law.com: "Lanier Tactic Shows There's 'Desperate' -- and There's Successful."

It's entertaining reading, but trial lawyers won't be able to draw too many lessons from it, especially those who follow the common advice to "be yourself" at trial. After all, Mark Lanier has one of those unique, one-of-a-kind personalities that's impossible to imitate. Even if you could, there's more to Lanier's success than just his personality. It's something that's not emphasized very much in the article--all the behind-the-scenes preparation that goes into producing the typical Mark-Lanier-style trial presentation.

Of course, being successful at anything requires hard work. But I get the sense that Lanier works extra hard, that he's the plaintiff-side equivalent of, say, Dan Webb.

Indeed, when asked about the keys to his success, Lanier's first answer was "hard work." His second was "creativity."

Even lawyers trying to be themselves can take those two qualities to heart.

Do You Believe in Your Case?

At DennisKennedy.blog, a post by Dennis Kennedy titled "Great Advice on Public Speaking" suggests that a speaker's performance improves in proportion to how passionate he or she is about the topic.

It's definitely true. A little passion goes a long way towards ensuring an audience will listen to a message. Throw in some enthusiasm and they may even embrace it.

That these principles apply to a lawyer's performance at trial or motion hearings is obvious. How can you expect a judge or jury to believe in your cause unless you believe in it first?

Admittedly, not every lawyer has the luxury of working exclusively on causes in which they believe. If you happen to lack enthusiasm for your cause, what can you do about it? First, try to make sure it's not too obvious. Second, think about how it affects the settlement equation. Your own lack of enthusiasm often says a great deal about the merits of a case. 

Tip for Motions in Limine: Keep a Running List and Update It During Depositions

Don't wait until the eve of trial to put together your motion in limine. If you wait until the last minute, you're certain to forget to list items of evidence you should be arguing aren't admissible.

A better idea is to start a list of disputed evidentiary points at the very beginning of the case. Add to the list as the case proceeds. If you're like me, you'll make most of your entries as you take and defend depositions, as it's during depositions that most disputed evidentiary points are first previewed for you by your opposing counsel.

When it comes time to put together your motion in limine, you won't be starting from scratch. You'll have a list of case-specific ideas already composed, which you can add to your usual generic points.

Related posts:

1. A Sample Motion in Limine: Defense Version

2. A Sample Motion in Limine: Plaintiff's Version

3. Motions in Limine Seeking Admission of Evidence

A Writing Tip that Pays Dividends in Reader Comprehension

In Style: Ten Lessons in Clarity and Grace, Joseph P. Williams writes that readers will have an easier time understanding your writing if you pay attention to where you put new information within a sentence--

Whenever possible, express at the beginning of a sentence ideas already stated, referred to, implied, safely assumed, familiar, predictable, less important, readily accessible information.

Express at the end of a sentence the least predictable, the newest, the most important, the most significant information, the information you almost certainly want to emphasize.

Here's an example, again from Williams--

Not: The large number of wounded and dead in the Civil War exceeded all the other wars in American history. One of the reasons for the lingering animosity between North and South today is the memory of this terrible carnage.

But: Of all the wars in American history, none has exceeded the Civil War in the huge number of wounded and dead. The memory of this terrible carnage is one of the reasons for the animosity between North and South today.*

When you edit a draft, pay attention to the way new and old information is doled out from one sentence to the next. By moving clauses around, you can often add to reader comprehensive. This is especially true if the beginning of each sentence picks up or echoes the idea most recently expressed at the end of the last sentence.

A similar principle is also the subject of this month's writing column in the ABA's Law Practice Management magazine. In "Lesson Two: Stress This," George D. Gopen writes that "the single most widespread and crippling problem in professional English writing" is the failure to place the most important information in the right part of a sentence.

If you're interested in improving your writing, Gopen's article is also worth a look.

*My quotes are from the second edition of Style. It's now in its eighth edition.

More About the Tax Consequences of Confidentiality Clauses in Settlement Agreements

In a post earlier this month, I wrote about the tax consequences of confidentiality clauses in settlement agreements after reading about the issue in Trial Briefs from the Illinois Bar's Section on Civil Practice and Procedure. Now I see there's another article about the issue, this time in Trial magazine.

In "Avoiding the confidentiality tax bite," Randall O. Sorrels and Neel Choudhury have a number of practical tips for dealing with confidentiality agreements in settlement agreements, including these:

• If possible, don't agree to the confidentiality agreement at all;
• If a confidentiality agreement is necessary, specifically state in the settlement papers any amount the defendant paid as consideration;
  
• Even better, and assuming it's true, get the defendant to state expressly that nothing was paid for confidentiality; or,
• Obtain a private IRS ruling.

Unfortunately, the article's not available online.* Since it includes explanations of these points plus lots more, be sure to look it up if you're dealing with the issue.

*Correction, the article is available online to ATLA members. Go to the June 2006 issue of Trial and sign in. In addition, a reader emailed me a link to a slighter longer version of the same article at the Houston Business and Tax Law Journal: "Plaintiffs' Attorneys Beware: Little Known Tax Consequences Associated with Confidentiality Provisions" (pdf).

The Illinois Trial Practice Weblog Wins an Award . . . Almost

The Illinois Trial Practice Weblog was a finalist for "Blawgger of the Year" in the Technolawyer 2006 @ Awards. Congratulations to my co-finalist Dennis Kennedy, and to the winners, Stephen Albainy-Jenei and Karlyn Schnapp of Patent Baristas.

The Technolawyer @ Awards include a number of non-weblog categories such as "Favorite Case/Practice Management Solution," "Favorite Document Management Solution," and "Favorite Electronic Discovery Solution." There are certainly a lot of links to follow and products to explore. When I get a chance, I'll probably start with TimeMap, winner of "Favorite Trial Presentation Solution."

UPDATE 6/6: I should have noted, as Dennis Kennedy did, that the "Blawgger of the Year" award was "an award based on the number of downloads of the BlawgWorld ebook tracked to links from various blogs." I posted about BlawgWorld here.

Fixing Deposition Transcripts When Your Questions Are Messed Up

Every jurisdiction has a procedure for correcting transcription errors in a deponent's answers. But what if there are errors in your questions? What if the deponent's answers are recorded correctly ("yes," "no," etc.), but it's your questions that are mangled?

Although I sometimes notice errors in the way my deposition questions are transcribed, usually the errors aren't significant enough to matter. One time was different. It was a deposition I took of the defendant's expert, a cardiac pathologist. It was a highly technical deposition with highly technical words, and I'd spent a good deal of time preparing for it. I also had to travel to New York. I wasn't happy when I saw that the medical terms I'd so carefully used to form my leading questions had been taken down incorrectly--so incorrectly they couldn't be used for impeachment. I had the "yes's" and "no's" I wanted from the witness, but these were worthless as they came after questions I really didn't ask.*

How did I solve the problem? Maybe someone else knows a better procedure, but here's what I did. I simply wrote a letter to my opposing counsel listing all the errors in the transcript. I then asked my opposing counsel to consent to having the reporter fix the errors. It seemed to me that my opposing counsel would agree--first, she'd been at the deposition herself and knew the transcript was messed up just like I did; second, if she didn't agree, she'd have to fend off my attempts to have the judge let me to start over again from scratch. And if I was successful, she'd have to spend her client's money trudging back to New York for another deposition.

What happened next? It was an event that cures lots of problems like the one I had: the case settled. Meanwhile, I'd learned an important lesson about taking depositions. After deposing a doctor, it make sense to spend some time with the court reporter making sure he or she understood the medical jargon. If there are terms that sound very much like the ones you used but have a different meaning, make sure the court reporter uses the correct term. Even give the court reporter a glossary if you have to. It sure beats having spent the time and money taking a deposition that turns out to be useless to you in the end.

*Example for the curious: Early in the deposition, I told the witness that rather than saying "fenfluramine and dexfenfluramine" every time I asked a question about these compounds, I'd simply say "the fenfluramines." The witness agreed this made sense. I then went on to ask many critical questions about "the fenfluramines." In the transcript, however, the reporter mistranscribed almost all these references as "fenfluramine," even dropping the "the." It meant that the witness's yes and no answers were applicable only to fenfluramine but not to dexfenfluramine, which was the main chemical compound at issue in the case. This was only one of many similar errors the court reporter made.