The Trial Practice Tips Weblog

One More About the Paperless Law Office

At the South Carolina Trial Law Blog, there's a guest post from New York litigation lawyer John Powers that offers some scanner suggestions for paperless law offices:

We’ve been paperless for nearly three years . .  The keys to going paperless are having a dependable HIGH SPEED scanner and a plan to make certain that everything gets scanned before it gets into the hands of a lawyer.

With 7 lawyers in the firm we are using the Canon 9080C scanner, which has color capability and scans at 90 pages per minute (180 pages per minute in duplex) in black and white and 50 pages per minute (100 ppm in duplex) in color.  We started with one scanner and subsequently added a second 9080C scanner to alleviate the frustration that occasionally arose when someone was “waiting for the scanner to be free”.  We also have three Canon 2080C portable scanners for use in court, at depositions or for gathering records outside of the office. The Canon 9080C retails for around $10,000 but can be purchased on-line for approximately $5,500.

As for software, Powers uses TrialWorks. If you're interested, read the whole post, which I decided to highlight because my earlier posts on this topic were short on hardware- and software-specific details.

Related posts:

1. "Do Away With Paper Entirely? Not Me."

2. "Notes on a Paperless Law Office by Ernest Svenson."

Gearing Up for the New Federal Discovery Rules

The recent amendments to the Federal Rules of Civil Procedure become effective December 1, 2006. Here's a good article about one of the amendments: "Are Litigators Ready for the New Meet-and-Confer Sessions?" by Carolyn Southerland in the National Law Journal--

[N]ew Rule 26(f) requires that 21 days before a Rule 16(b) scheduling conference, the parties are to meet and confer to discuss any issues relating to preserving discoverable information; to develop a proposed discovery plan; to discuss any issues related to disclosure or discovery of electronically stored information (ESI), including the form or forms in which it should be produced; and to discuss any privilege issues, including the potential for a "clawback" agreement to be included in a court order.

At first blush, this list doesn't seem too daunting. But any attorney who ever spent an afternoon with a client's chief information officer, trying to understand where the data requested by the other side in discovery are stored, knows that even understanding the language of the information technology (IT) world requires a significant investment of time and effort. So what will the courts -- and opposing counsel -- expect at a meet and confer come Dec. 1, when the new rules go into effect?

Even if you don't regularly litigate in federal court, you'll find that the article contains some good ideas for completing those electronic discovery tasks that should now be part of almost every case.

Still More Writing Samples

After Tuesday's post, a few readers emailed me to say that the Solicitor General's website is a good source of writing samples. Begin your review here. You'll see there is a way to view the briefs by subject matter, which will help you to avoid those briefs that are too dry for your own personal taste.

I also heard about this resource from Mike Cernovich of Crime & Federalism, who recommended it in a comment to an earlier post:

If you want to see great legal writing, just go to the U.S. Solicitor General's website and start reading. It doesn't get much better than Seth Waxman, Ken Starr, and Ted Olson. It's fun to read their briefs, as they all have unique writing styles. I also suggest reading anything by Miguel Estrada, formerly with OSG and now a partner at a large law firm. When I had unfetted Westlaw access in law school, I'd go to CTA-BRIEFS or SCT-BRIEFS and read everything by Estrada. Also, go to appellate.net and read some of the briefs by partners at Mayer. Whenever I'm writing a brief in an unfamiliar jurisdiction and want to get a "feel" for how things are done, I see whether the lawyers at Mayer filed in a brief in that jurisdiction.

By Popular Demand, a Writing Sample

In a comment to my last post on legal writing, Carolyn Elefant of My Shingle wrote--

[T]hanks for the great resources. However, what I'd love to see are examples of great legal writing in briefs. Not just serviceable or workmanlike (which is how one of my former bosses complimented my work) but stuff that really stands out.

Since I don't have a library of briefs other than the ones I've written, I thought I'd post the appellate and reply briefs from one of my own old cases in a case in which a loss at trial led to a later victory. Readers can decide for themselves if the writing stands out, but I remember being pretty happy with the effort when I filed the briefs. This was especially true when the appellate court agreed with my position and granted my partner and me a new trial because we established during the appeal that some of the defense witnesses had lied on the stand during trial.

I remember the result as being somewhat dramatic, which is another reason I chose these briefs as ones to post. For better or worse, I take credit for writing every word. The opening appellate brief is here; the reply is here. The case involved a claim that a hospital committed malpractice when one of its patients was admitted for psychological problems stemming from lifelong sexual abuse by authority figures. Not long after the patient was admitted, the psychiatric social worker who was partially responsible for her care began a sexual relationship with her. At trial, a jury found in favor of the hospital after its lawyer argued in closing argument that the hospital had no reason to doubt the employee's abilities when he was hired, and that he "had no history of sexual misconduct."

In fact, however, the employee did have a history of sexual misconduct, though it was hidden from us during discovery and at trial. When I got wind of the perjury during the post-trial motion period, I took some more depositions even though trial was over. During these depositions, I was able to prove that some of the witnesses had lied during discovery and at trial.

If any of this sounds interesting, there's more detail in the briefs. The decision by the appellate court that led to the new trial and a subsequent victory for the client is reported at M.E.S. v. Daughters of Charity Services of St. Louis, 975 S.W.2d 477 (Mo. Ct. App. 1998).

Motion Hearings: Handing Cases to the Judge

During a motion hearing, the judge will often ask to see a case that supports the position you're arguing. Be sure to come prepared. Since you can't always predict which particular issue will be troubling to the judge, you might have to bring copies of several cases, some of which are only tangentially related to your main points.

Should you make "clean" copies of these cases for the judge? I don't think so. I prefer to hand the judge my copy--that is, the one for which I've taken the time to highlight all the best language. When the argument ends, that's the copy I magnanimously suggest the judge keep with the file if he or she decides to take the motion under advisement.

Perhaps you're worried that in handing over your copy of a case, you might be left empty-handed if the judge has questions about it during the argument. This isn't a problem if you remember to arrive at court with two identical sets of highlighted cases. When the judge takes your first copy, you can pull out the second for yourself.

Does all this work seem like overkill? It won't the next time your great case (undoubtedly the one you thought didn't matter) persuades the judge to rule in your favor. 

The Basics of Technology in the Courtroom

Here's an article from Law Technology News, which often puts its content behind a subscription-only firewall: "Do's and Don'ts of High-Tech Trial Presentations," by Andy Seldon.

It's a basic, though useful, article of the sort that can be reread each time you're gearing up for a new trial. It's divided into ten sections--

• Failing to learn and exploit technology;
• Incompatibility;
• Objectionable evidence;
• Going solo;
• Unprepared witnesses;
• Muddy waters;
• Overusing technology;
• No backup plan;
• Failing to make the necessary arrangements with court staff and checking the local rules; and
• Not matching the technology to the case.

The article's author is the director of information services for the U.S. District Court for the District of Minnesota.

Questionnaires Used for Jury Selection--an Example from the Enron Trial

There was an interesting article in the New Yorker earlier this year about jury selection in the Enron trial. It featured a questionnaire written, in party, by jury consultant Robert B. Hirschhorn. A quote--

The form asks jurors whether they watch Bill O’Reilly, Rush Limbaugh, “MarketWatch,” or “Boston Legal.” It wants to know if they read Fortune, Forbes, or the Wall Street Journal. One of Hirschhorn’s “signature questions” is to ask jurors to name the three people they most admire. In this case, he says, “George Bush would be a draw.” He wants to know whether they handle their families’ finances. (“People who make those decisions are the C.E.O. and C.O.O. of their own homes.”) Further, are they good financial stewards, or did they trust people they shouldn’t have, as Ken Lay insists that he did? The questionnaire puts it this way: “Have you or your spouse lost a significant amount of money in the stock market in the past ten years? If yes, please explain what happened.”

Questions like these can be a great aid in jury selection, but only if potential jurors answer honestly. Will they? Some experts say you shouldn't assume the answer is yes. On the other hand, narrow, fact-specific inquiries on a questionnaire are less likely to lead to fudging one way or the other, especially if jurors aren't certain what their answers are "supposed" to be. It's one of the reasons questionnaires are very popular with some lawyers, especially in high-damage cases.

A Collection of Free Online Writing Resources

Here are a number of good online resources about writing, compiled by Celia C. Elwell, PACE Registered Paralegal--

• Guide to Grammar and Style, Jack Lynch;
• How to Write in Plain English from the Plain English Campaign;
• Online Style Guides from mantex;
• Style and Writing Guides from the Internet Public Library;
• Writing, Grammar and Style Guides from the O'Keefe Library;
• Writing and Research Guides from San Antonio College.

My own contributions to the literature of good writing include the articles "Improve Your Legal Writing with Five Simple Rules," "Five Steps Towards Persuasive Writing," and "First Drafts Made Easy." All were originally published in the Illinois Bar Journal. Other tips can be found in the "Legal Writing" category of this weblog.