The Trial Practice Tips Weblog

A "Bounty" of Tech-Related Practice Tips

The March, 2009, issue of the ABA's Law Practice Magazine, which is online and free to all, is celebrating "the spirit of ABA TECHSHOW by giving you a bounty of legal technology tips."

Some of the articles this month include:

• 10 Ways to Stretch Your Research Dollars: How to Get the Facts on a Dime

• Tips and Tools for Easy Collaboration: Six Ways to Work Better with Others Online

• Steps Along the Paperless Path: Keys to a Successful Scanning Implementation

• E-Discovery Tips for Everyday Cases

There are other articles, too, all worth a look. Link from Jim Calloway's Law Practice Tips and Celia C. Elwell, RP.

Depositions: Asserting Control with the "Nonresponsive" Objection

When a witness won't answer your question directly, you should keep on track and ask again, like this:

Thanks for that, but you didn't answer my question. Did you supervise Mrs. Smith?

After a couple rounds of repeating the question, you'll usually get a proper answer. Sometimes, though, you'll have to increase the pressure with an "unresponsive" objection.

Mr. Witness, your answer is not responsive to my question. I move to strike your answer. I'll ask the question again. Did you supervise Mrs. Smith?

In my experience, witnesses often become unnerved when you "move to strike" their answer and immediately become more cooperative. Even if they feel comfortable about the deposition process in general (doctors, for example), your motion to strike leaves them standing on uncertain ground, possibly feeling as if they risk suffering some personal sanction.

Although the "nonresponsive" objection can also be useful at trial, keep in mind that the objection can only be used by the questioning lawyer. As explained by Joseph M. McLaughlin in an article in The Litigation Manual: Trial--

Nonresponsiveness is a problem between the questioner and the witness. It is none of the adversary's business. In other words, the only personal who can move to strike a nonresponsive answer is the person who put the question.

See "Objectionable Objections," Joseph M. McLaughlin, The Litigation Manual: Trial (ABA 1999). See also McCormick on Evidence, p. 52 at 127, n.6 (3d ed. 1984); People v. Sweeney, 46 Ill. App. 3d 858, 361 N.E.2d 344 (1977) ("The statement could only be stricken on a request from the questioning counsel, the only one who has standing to object to the nonresponsive nature of the witness' remark").

16 Books to Make You a Better Trial Lawyer

Here's an interesting Amazon reading list I stumbled upon accidently: "16 books to read if you want to become a better trial lawyer."

The list was compiled by D. Shane Read, an author himself who also happened to include his own book on the list. But that shouldn't stop you from reading it. The books are well-chosen and Read's short reviews make the list additionally compelling.

If you're the reading type, you might want to add some of these books to your library. I already own eight of them (and while counting, noticed that there are actually twenty-one books on the list, despite the "16" in the title).

A Recommended Trial-Ad Book That Won't Steer You Wrong

Although the book I am recommending today was written primarily as a law-school text, Trial Advocacy: Planning, Analysis, and Strategy is also an excellent resource for practitioners, especially younger lawyers working on their first trials.

Described as a "how-to book for trial lawyers," Trial Advocacy is full of practical information about all the areas of trial you'd expect: jury selection, opening, exhibits, direct, cross, experts, instructions, closing. The book also includes a DVD in which "experienced trial counsel present" a mock trial based on the materials in the book.

Here's a sample tip from the book, chosen pretty much at random from a chapter titled "Cross-Examination of Experts"--

The expert's opinion may be vulnerable in the following areas:

• The time the expert had or used in analyzing the data (the doctor examined the patient for ten minutes; psychiatrist did not examine criminal defendant until ten weeks after the crime);
• Information was incomplete (the engineer did not receive all the blueprints);
• Expert is making an incorrect assumption about the data (the expert assumes that the core soil sample he was given was from "quadrant 4";you will present evidence that the sample was from "quadrant 3," which invalidates the expert's calculation);
• Expert received faulty or biased data (much of the data is from an interested party);
• Expert's procedures or experiments for analyzing the data faulty, unreliable, left undone, or wrong (a mtallurgist failed to heat the metal to the appropriate temperature).

At almost 600 pages, it's a hefty book. You'll find a trailer for the DVD, sample documents, and ordering information at the book's companion website. You can also find the book at Amazon.

What Do I Really Think About Twitter?

Despite this post a few days ago, I guess I'm a little ambivalent about Twitter. I love it yet I hate it. At Legal Underground, I have a long post about an alternative social network for lawyers, a relatively new one called TheBarAfterWork. Follow this link to "Is TheBarAfterWork a Valuable Networking Tool or Just for the Drunks?"

Examples of Bad Legal Writing from the "Legalese Hall of Shame"

Here's an example of some bad legal writing from the "Legalese Hall of Shame," originally spotted in a lawyer's letter--

I am herewith returning the stipulation to dismiss in the above entitled matter; the same being duly executed by me.

At the Legalese Hall of Shame, you'll also find translations of the twisted English posted there. Here's the quote above, in translation: "I have signed and enclosed the stipulation to dismiss the Byrd case."

The Legalese Hall of Shame is maintained by Adam Freedman, author of The Party of the First Part:The Curious World of Legalese. There's also a sort of companion weblog, titled The Party of the First Part: Adventures in Legalese.

Even if these sites won't make you a better writer (because, obviously, you already know how to write understandable English), they'll certainly entertain you, while nudging you in the direction of becoming an even better writer.

(Concluding note: I originally saw these links in a post titled "First Arrow" at Raymond Ward's the (new) legal writer. Ward's post is a list of his favorite writing sites. All of Ward's recommendations are worth exploring.)

Today's Advice for Trial Lawyers (as Seen on Twitter)

Lawyer Dave Gallaher, who posts on Twitter as @ddgallaher, was providing some free career advice today in the Twitter-writer's characteristic terse manner--

Advice for young lawyers: smile at the judge, especially when he or she displays his or her comedic depth, laugh even.

Advice for young lawyers: smile at opposing counsel, even those who refuse to smile back, a sincere smile, they're insecure too.

Advice for old lawyers: smile at yourself, especially when you're giving advice to young lawyers, I mean, you still haven't figured it out.

These aren't bad ideas, especially the second point about opposing counsel. I've always tried to remember in own my legal career --  now in its 20th year! -- that if I act like a jerk, it's going to come back to haunt me in one form or another. I think the converse is also true.

As for Twitter, I've been surprised lately by the way it has taken off among lawyers, as can be seen at sites like LexTweet and Legal Birds, which aggregate the Twitter posts of lawyers and other legal professionals. If you're wondering what the fuss is about, take a look at Kevin O'Keefe's post, "How do lawyers use Twitter effectively?" After that, you'll have to do a little reading and studying before you get your mind around Twitter, but once you do, you might find you enjoy the way you can use Twitter to harness others with like interests to feed you a continuing stream of facts, links and information. And you can interact with these people too.

My own Twitter page is here: @eschaeff.

Jury-Related Blogs and Feeds

From the weblog Deliberations ("law, news, and thoughts on juries and jury trials") comes the "2009 Guide To Jury Blogs And Feeds," a long list of weblogs and other sources.

There's plenty of good information here for trial lawyers, such as a site called "Jury Experiences," in which jurors can post anonymously about jury duty.

Don't forget to add Deliberations itself to the list of jury-related weblogs.

Other Good Weblogs: Two From the Defense Side

Earlier this week, I highlighted a good trial practice weblog written from a plaintiff's perspective: Plaintiff Trial Lawyer Tips.

To balance things out, I wanted to call attention to two other weblogs -- this time from the defense side -- whose authors work hard to write detailed, well-researched posts.

• Drug and Device Law. Written by lawyers Jim Beck and Mark Herrmann (of Dechert LLP and Jones Day), the weblog contains "personal views of various topics that arise in the defense of pharmaceutical and medical device product liability litigation." Representative recent post: "Wyeth v. Levine -- First Real Thoughts."
• Jackson on Consumer Class Actions & Mass Torts.Written by Russell Jackson of Skadden, this weblog strives to spark a "continuing conversation about consumer class actions and mass torts." Representative recent post: "First Circuit Clarifies CAFA Removal Standards."

That's right, two more weblogs for your RSS reader.

Another Trial Practice Weblog to Bookmark

Plaintiff Trial Lawyer Tips is written by Paul Luvera of The Luvera Law Firm.

There is a lot of information on Luvera's weblog. Some recent posts include:

• "Cross Examination of the Hired Defense Medical Examiner";
• "Focusing Your Ideas in Preparing a Case"; and
• "Deposition Report Form."

Even defense lawyers might find information of interest on the weblog. It's one to add to your RSS reader.