The Illinois Trial Practice Weblog

A New Set of Voir Dire Tips

In "Eight Tips for Better Voir Dire," John H. Mathias, Jr., weighs in with some good voir dire tips for the ABA Litigation Section. Here are the tips--

• Leave each prospective juror feeling good about answering your questions;
• Never talk down to any prospective juror;
• Beware of the "evil eye";
• Use voir dire to get the jury to embrace your expert witnesses;
• Ask potential jurors if they like crossword puzzles;
• Find out whether potential jurors are victims or individualists;
• Break the ice for a large damages claim;
• Don't ask silly questions just to please a jury consultant.

Read the full article to get the tips explained, then print it out to add to your voir dire file. The tip about experts is especially good reading.

Credit for the link goes to Celia Elwell, a paralegal in Oklahoma City who complies useful links for a widely-read email.

Treating Court Reporters Right

An article titled "What court reporters want" from the Illinois Bar Journal contains these tips from reporter Andrea Trippi Else--

• Fax the case caption to the court reporter in advance of the deposition;
• When you arrive at the deposition, give the reporter a business card with a notation as to which party you represent;
• Speak slowly and clearly, especially when reading from a document, when your natural tendency is to speed up;
• Make an extra set of exhibit copies for the reporter;
• Don't speak over others, and advise the deponent to do the same;
• Don't cheat the reporter by providing a copy of the transcript to your opponent in exchange for splitting the costs.

The full article appears in the October issue of the Illinois Bar Journal on page 514. ISBA members can find it here.

Online Resources for Learning about E-Discovery

The following are several good e-discovery resources from Robert Ambrogi's article, "Discovering E-Discovery" (free registration required)--

• The Sedona ConferenceLegal Electronic Document Institute

• The Electronic Discovery Institute

• Socha Consulting

• The Electronic Discovery Reference Model

• EDDix

• Law.com's Legal Discovery Center

• Craig Ball's website

• LLRX.com

Read Ambrogi's article for a description of these sites, plus a few more hints. Meanwhile, the listed sources contain a wealth of information for understanding e-discovery and keeping up on the latest trends and court rulings.

A Plug for My Deposition Book: Some Specialized Deposition Outlines

Throughout my book Deposition Checklists and Strategies (James Publishing), you’ll find sample depositions for specialized witnesses such as experts, corporate representatives, and treating physicians. These sample depositions can be applied to causes of action other than the one that’s the subject of the chapter in which the sample depositions happen to appear. Some examples:

Experts:

• Ch. 4 Products Liability, IV. Sample Deposition: Defendant’s Causation Expert in a Defective Drug Case.
• Ch. 7 Insurance Coverage Disputes, IV. Sample Deposition: Defendant’s Roofing Expert in a Property Damage Case.
• Ch. 2 Vehicular-Liability, V. Sample Deposition: The Defendant’s Accident Reconstruction Expert.

Corporate Representatives:

• Ch. 4 Products Liability, III. Sample Deposition: Corporate Designee—Design and Testing.
• Ch. 7 Insurance Coverage Disputes, III. Sample Deposition: Corporate Designee in a Health Insurance Denial Case.

Treating Physicians:

• Ch. 4 Products Liability, IV. Sample Deposition: Plaintiff’s Treating Physician (Preservation Deposition for Trial).
• Ch. 5 Medical Malpractice, V. Sample Deposition #3: Treating Physician.

For more information about the book, see this brochure from the James Publishing website.

Fourteen Tips for Better Writing

Here's one worth reading: "14 Tips to Become a Lighter, Tighter Writer," by Ross Guberman in the Legal Times.

It's meant especially for new associates in large firms, but there are tips there for every lawyer. Enjoy!

Deposition Tip: Take It Step by Step

In a post called "Deposition Tips for the Young Lawyers Out There," the anonymous author notes that in his first few depositions, he wasn't exactly sure what to do about witnesses who couldn't recall the details about the subject of the deposition. He advises now to take things "step by step"--

My first couple deposition were very hard for me.  The witnesses always seemed to have “forgotten” details about the accident.  Now I know that this is what is supposed to happen in a deposition, but with the little experience that I had at the time, I just couldn’t figure out how to get around the dreaded, “I cannot recall.”  It seemed that no matter what I said, the witness couldn’t remember a thing.  Later on and with more practice, I found that laying a foundation and taking it one step at a time really helped.

The post doesn't suggest particular questions to ask, but most lawyers will agree that in initially getting the witness's story out, the question "And what happened next?" works very well. After the outline emerges, you can go back and pin down the details with more specifically-worded questions.

 

Using Emails in Support of Summary Judgment or at Trial

Emails present special evidentiary problems when used in support of summary judgment or at trial. The problems presented--and the answers, too--are the topic of "Authenticating E-Mail Discovery as Evidence," by Beatrice O'Donnell And Thomas A. Lincoln. For any lawyer who deals with emails in discovery, it's well worth reading. Here are a few points:

• To authenticate an email, you must prove it is genuine. This must be done not only to make an email admissible at trial, but also in order to use an email in support of a motion for summary judgment.
• In federal court, some emails are self-authenticating under 902(7).
• If not, you'll need to use stipulations or requests for admissions to authenticate the email; failing that, you can find a witness who can authenticate the email.
• A second evidentiary hurdle is hearsay.
• If the email is an admission by a party-opponent, it's not hearsay.
• When the opposing party is a corporation, emails by lower-level employees might not be admissions. "In order for the e-mail to qualify as a party admission, the author needs not only to be acting in the scope of his or her employment but also to have the proper authority."
• Emails might fit within the business-record exception to the hearsay rule, but this might be difficult if the email is merely "chatter, statements that are made casually and not as a matter of obligation or even routine."
• In many courts, you will have to face the issue of authentication and hearsay with respect to each separate email in an email chain or thread.

There are more tips in the article. Thanks for the link to Celia Elwell, a paralegal in Oklahoma City.

Related post: "Electronic Discovery: Think About Admissibility Well in Advance of Trial."

Interrogatory Answers "Subject To" Objections: Send a Request for Admission

It's common that a party will answer your interrogatories only after stating numerous objections. If your practice is like mine, you might get a page or two of "general objections," then a number of other specific objections in answer to the specific interrogatory, and then a statement, "Subject to the objection, [party] states as follows. . . "

Absent a specific court rule in your jurisdiction, how do all the objections affect your use of the "subject to" response at trial? Can you read the interrogatory answer to the jury, for example, even though you never had the other side's objections specifically overruled? The party answering the interrogatory didn't state all those objections for nothing. It did so to make it harder for you to use the information.

Here's a simple trick that often will resolve the quandary in a way that's much easier than calling up the objections. Simply take the interrogatory response you think you might want to use at trial (absent the objections, of course) and turn it into a request for admission. Then send it off to the other side. Since they authored the statement themselves in an interrogatory response, albeit subject to their many objections, it's unlikely they'll deny the statement when put into a request for admission.

With an admission in hand, you can use the information at trial without worrying about the effect of the objections. The admission can even be projected on a screen, which you probably wouldn't want to do with an objection-ridden response to interrogatories.

Congratulations: you've just done an end run around your opponent's many harassing objections!

Lawyer Tools: MedMal Reports

Lawyers with medical malpractice cases might want to take a look at the customized MedMal Reports offered by the Cambridge Economics Group. On its website, MedMal Reports are described like this--

Over 10,000 malpractice payments are made in the U.S. every year. By law, every such payment must be recorded in the National Practitioner's Data Bank. CEG's analysis of these data shows that malpractice payments are to a large extent predictable. MedMal Reports are based on this insight.

MedMal Reports rely on methods that were developed by an academic economist with substantial malpractice experience and degrees from Harvard, Oxford, and MIT. A MedMal Report presents expected settlement and judgments, as well as a detailed percentile distribution. All results are clearly presented using charts and plain English.

Sample reports are available on the website. The price is $325, which includes a "custom statistical analysis of your case" and "summary information on all malpractice payments that have been made in cases with the same medical outcome and trial state since 2004."

I haven't tried the service. Anyone who has is welcome to comment.