The Illinois Trial Practice Weblog

All the Online Reference Sites You'll Ever Need

Here's an article to bookmark from the newsletter of the ABA General Practice, Solo & Small Firm Division: "Sites For Sore Eyes: Fun and Handy Reference Sites That Rock!" by Jim Calloway and Courtney Kennaday--

It’s not all about Google, people! There actually are websites that make your search easier and give you better results than the wild hits search engines often produce.

There are a number of references sites listed in the article, but the recommendation of Refdesk.com -- a site I didn't know about -- is one you definitely shouldn't miss. Thanks to Celia Elwell for the link.

Informing Yourself about Your Adversary: Google Is Your Friend

Here's an interesting post from David Swanner of the South Carolina Trial Law Blog: "How to Ace a Job Interview with Me"--

One of the first questions I ask is “What do you know about me?” It amazes me the number of people of people that don’t even take the time and effort to type my name in Google and see what pops up. I have a reasonable internet presence and to not even look at my website or weblog, before coming to the interview is slack. I don’t expect someone to know everything about me, but to not even look at the website and the areas of practice shows a profound lack of interest, that I find unattractive in a job candidate.

It's excellent advice, but it doesn't apply only to job interviews. Why not get in the habit of using Google to get some intelligence on the lawyers you come across in your day-to-day practice? You don't have to limit yourself to your adversaries, as the title of this post suggests. Use the strategy on others as well--your co-counsel, lawyers with whom you are negotiating a deal, judges and mediators, etc.

I've found Google to be a great help during those first ten minutes of every meeting where the parties engage in small talk to tease out things they have in common. You'll get a head start if you know where the others went to school, how long they've practiced, what they've published. And if they turn out to be webloggers like David Swanner, then you've hit the jackpot: as Dave points out, it's likely you'll  find out just about everything that's important to know, including, when applicable, that you're meeting with anything but a "high falutin’ person."

A Lawyer's Duty: Control the Client at Depositions

Do lawyers have a duty to control their clients during depositions? Take a look at this recent article from Law.com--

Lawyer and Client Sanctioned Over Client's Conduct, Use of 'F Word' During Deposition

A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in.

In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

In defending his actions, the lawyer representing the allegedly vulgar client said that he tried to control his client, but that his actions took place off the record. The judge's response? "[E]ven if this assertion is to be believed, [the client's] continuing misconduct indicates that whatever efforts [the lawyer] made were woefully ineffectual. In fact, [the lawyer's] meek attempts to intercede and his otherwise silent toleration of [the client's] conduct only emboldened [the client] to further flout the procedural rules."

So there you go: control your clients in depositions. If you can't, it probably means you shouldn't be representing them in the first place. I sure wouldn't.

Related posts:

1. "Controlling Your Client During Deposition."

2.  "Defending Depositions: Correcting Your Client's Unintentional Errors."

New Book: Make Better Use of Technology to Collaborate

Any lawyer who must collaborate with others--that's all lawyers, by the way--should take a look at The Lawyer's Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.

Recently published by the ABA Law Practice Management Section, this book is a cutting-edge survey of the technological tools and resources available to lawyers who want to increase their productivity by working together.

Collaboration runs the gamut from small projects like jointly editing a document to large ones like years-long document reviews. Collaboration can take place within single firms or across many firms.

No matter what the size or scope of your project, this book will get you started. Sections include the following:

• Collaboration on Cases, Transactions, and Projects
• Commonly Used Collaboration Platforms
• Developing a Collaboration Strategy

Since my own practice includes many joint ventures with differing plaintiffs' firm, each involving a single distinct groups of cases such as asbestos or Vioxx, I've been looking forward to reading this book since I first heard Kennedy and Mighell were writing it.  (The three of us have collaborated ourselves from time to time.) Book finally in hand, I'm sure I'll find new and more effective ways to communicate with the lawyers on my team.

I'm especially having fun working my way through Appendix 3, which lists "tools by category," with web links to resources for conference calls, email, extranets, instant messaging, metadata removal tools, online meeting tools, online office tools, open-source software, PDF creation and management, project management, redlining tools, screen-sharing meeting tools, SharePoint tools, high-end platforms, wikis, file sharing, mind mapping, and social networking.

That's quite a list--which gives you an indication of the breadth and scope of Kennedy and Mighell's work. Recommended.

A Few Things to Know About Juries

In the April, 2008, issue of the Illinois Bar Journal, you'll find some interesting tidbits about juries in "Lessons from Jury Research," by Sara Parikh and Terrence Lavin.

Some examples--

• Juries care most about the "strength of the evidence" and make decisions on that basis, rather than giving in to pre-conceived biases or emotional appeals.
• Juries try to fit each bit of evidence into a "cohesive story"; if they can't do it, the evidence "tends to get dismissed or serves to reframe the story."
• Juries tend to discount expert testimony unless it is firmly rooted in the factual evidence.
• While lawyers must sometimes "emphasize and even repeat important concepts," juries quickly become frustrated by needless repetition.
• Even if jurors come to a trial with a particular bias in favor of the plaintiff or defense, these feelings are rarely so entrenched that they will predict the juror's decision about a particular case.

To learn more interesting lessons about juries, read the complete article at your nearest law library or online here (ISBA members only).

Common Deposition Error: Repeating Yourself

Once you get good testimony at a deposition, you're best to leave the testimony alone. Take the good answer from the witness and move on.

It seems like obvious advice, but some lawyers can't wait to read the good answer in the printed transcript. Perhaps not believing their good fortune, or perhaps wanting to relive the excitement of the five minutes when everything was going their way, they return to the question again a little later in the deposition. They ask the question to which they got a good answer a second time.

Why give the witness a chance to change or explain his answer? I can think of only a couple of reasons, neither of them very good: (1) You're not sure whether you've pinned the witness down or (2) you can't remember what the witness said.

Both of these possibilities should be dealt with on the first go-round. First, pin the witness down after you get good testimony. Second, take good notes. Then move on to the next area of questioning--never to return until trial, when it will be much easier to impeach the witness than during the deposition when you have no transcript.

Experts in Illinois: The Duty to Disclose Begins with an Interrogatory

Question: You represent the plaintiff in a case in which the trial court has entered a scheduling order requiring you to disclose your experts by a certain date. You do so, in addition to sending the other side a report. However, the report fails to include all the expert's opinions. Assuming the defendant never filed a Rule 213 expert interrogatory, what is going to happen to those extra, undisclosed opinions at trial? Will they be excluded, or not?

Answer: In Heriford v. Dawson, the Fourth District Appellate Court ruled that the undisclosed opinions can come in. Reversing the trial court, the Fourth District stated as follows--

[W]e find that an interrogatory is the trigger for a plaintiff’s duty to disclose the nature and extent of her expert’s opinion. The decision of the trial court, to bar evidence of damages without engaging in the application of its discretionary authority and thereafter award a directed verdict in favor of Moore, is in error. We, therefore, reverse the judgment awarded to Moore.

Heriford v. Dawson is also discussed in this month's Trial Briefs, the newsletter of the ISBA's Section on Civil Practice and Procedure. See "'Tactical gamesmanship' and trial practice: Can it be good advocacy?" by Patrick M. Kinally (ISBA section members only). While critical of the Heriford ruling, Kinally calls it "a must read for anyone trying civil cases."

Deposition Podcasts: Advanced Techniques

For free deposition advice, why not try my three podcasts on advanced deposition techniques? Originally posted Legal Underground, I'm reprising them here. Just follow the links--

Advanced Deposition Techniques #1: Five Tips for Asserting Control at Depositions

Advanced Deposition Techniques #2: Four Ways to Use Psychology at Your Next Deposition

Advanced Deposition Techniques #3: Miscellaneous Tips for Expert Depositions

Combined, these three podcasts have now had nearly 3,000 downloads. You can listen on a computer with speakers or even better, on any iPod or mp3 player.

If you like what you hear, don't forget my book: Deposition Checklists & Strategies (James Publishing, 2d Ed. 2007).

The Paperless Office Wiki: Everything You Need to Know

Everything you need to know about "paperless offices" for law firms is now contained at a wiki created by Christinne Newman, Philip Devin , and Kim Ross-Winston. The intro--

The intent of this wiki is to provide you, the end user, with valuable information that may aid you in understanding a paperless office. Specifically, we touched on basic concepts such as the meaning, historical background, philosophy, pros and cons, technology, costs, tips, how-to-links and the like. Because we are not experts in this field and our knowledge of this topic is minuscule, we have conducted extensive research and evaluated online information sources to provide you with the most authoriative, objective, reliable, timely, and extensive coverage on the topic of the paperless office.   

There's lots of good information, including tips about hardware, software, and cost.

Related paperless-office posts from the Illinois Trial Practice Weblog:

1. "Do Away with Paper Entirely? Not Me"    
2. "Notes on a Paperless Office by Ernest Svenson"    
3. "One More About the Paperless Law Office"
4. "The Paperless Law Office: A Report from the Trenches"
5. "The Paperless Office: How-To."