The Trial Practice Tips Weblog

At the Blogs: Recommendations on Case Management Software, and More

Here are some notable recent posts from around the law-related blogosphere--

Case Management Software: "Update on Case Management Software" and "Trial Works Online Takes a Quantum Leap in Case Management," both from the South Carolina Trial Law Blog;

Learning to Use Tech: "New Episode of The Kennedy-Mighell Report Podcast is Now Available," from Dennis Kennedy (the podcast is titled Learn to Use NEW Technology: 101);

Voir Dire, Etc.: "The New Jury Expert Is Out, and I'm In It," at Deliberations;

Contracts: "Keep This Stuff Out of Your Contracts," at AdamsDrafting;

Manners: "Lawyer Etiquette: Is Your Blackberry Use Hurting your Reputation" at A Georgia Lawyer; and

Twitter as a Tool: "Mining Twitter for IP Information & News," at The Invent Blog.

Happy reading!

Best iPhone Applications for Lawyers

From the ABA Journal: "More Lawyers Getting iPhones, But What Are the Best Apps?" by Sarah Randag--

According to this year’s ABA Technology Survey, the availability of the iPhone at law firms is inching upward, which means that more lawyers are adrift on a sea of available apps.

The iPhone “barely registered” on last year’s survey, said Catherine Sanders Reach, director of the ABA’s Legal Technology Resource Center. Reach said that fewer than 5 percent of lawyers who provided brand names of the SmartPhones available at their firms cited the iPhone. This year, 14 percent did, making it second only to the BlackBerry, ABA Site-tation reported.

If you're an iPhone user, be sure to check out Jeff Richardson's weblog, iPhone J.D., which the article at the ABA Journal goes on to mention. Richardson also wrote recently about his favorite iPhone applications at Above the Law: "Top Ten iPhone Apps for Biglawyers." You'll find lots of good ideas there.

Related Post: "Carry the Rules with You on Your iPhone."

Depositions: Learn from the Old Pros

Here's a quick tip. If you want to ramp up your deposition skills, there's nothing like reading depositions taken by lawyers whom you respect. Lawyers in firms of all sizes have access to the firm's case files; look through them and copy depositions to annotate and study. Lawyers who work on mass torts or multi-district litigation usually have access to reams and reams of work product from other firms working on the same side of the case. A third source for transcripts are deposition banks like, for example, TrialSmith or the Miami-Dade Justice Association Depo Bank, to name just a few.

Related posts:

1. Tip for New Lawyers: Learn by Example
2. Learn from a Trial Transcript
3. A Deposition Tip for Young Lawyers: Learn from Your Mistakes

Cross-Examination: A Refresher

At his weblog Plaintiff Trial Lawyer Tips, Paul Luvera has been posting on cross-examination, always of interest to trial lawyers--plaintiff or defense.

Luvera has two recent posts:

Five Steps of Preparation for Cross-Examination. The five steps are fully explained in the post--

• Determine the goals.
• Divide goals into individual topics.
• Document the cross examination.
• Use Role Reversal.
• Divide the cross examination into chapters.

Basic Cross-Examination Principles. Again, these basic principles are explained in the full post--

• Make big points and ignore the details.
• Tell the jury what you just did.
• Approach cross examination from a big picture viewDon’t answer every defense issue.
• Be consistent and stick to the main story.
• Meet major defenses head on.
• The right to ask leading questions is a gift. Use it.
• Listen, listen, listen.
• When impeaching, make sure you lay a foundation first.
• Be Brief
• Make your point and quit.
• Be firm but fair.

If you like these two posts, Luvera also has a few other posts about cross-examination here, plus lots of other useful information on the rest of his weblog.

Deposition Tip: Don't Give the Witness a Chance to "Dis-Remember" an Event

Here is a simple tip for framing questions.

Once a lawyer has established that a witness was present at an event, he or she might ask a poor follow-up question along these lines: "Do you remember what happened?" 

Other versions of the wrong way to follow-up--

"Do you recall ... " 
"Are you able to remember ..."
"Can you recall ..." 

Questions like these too easily give the witness an opportunity to evade by answering, "No, I don't remember."

There's no need to give the witness a choice not to remember. Instead, get to the point: "Tell us what happened at the meeting on May 6" or, simpler yet, "What happened at the meeting on May 6?"

Some witnesses may not remember what happened. If not, they'll let you know. In the meantime, there's no reason to invite the witness to "dis-remember" in the way you ask the question.

Source: Ashley Lipson, Guerrilla Discovery §10.52 (James Publishing)

Writing for the Court: Control Your Outrage and Scorn

Here's a worthwhile post from Maxwell Kennerly's Litigation & Trial weblog: "How To Write Your Brief So That The Judge Will Hate You."

Kennerly's post came about like this. First, Kennerly read an article about a judge who wasn't happy with a tone of a lawyer's brief. Next, Kennerly went on PACER and found the offending brief. On his weblog, he highlighted some of the places where the brief's tone was suspect and made the whole thing available by clicking a link.

The offending brief includes a lot of vitriol and sarcasm aimed at the other side: it snidely says the plaintiffs (two legal professors) were motivated to sue by mere "unhappiness," says their claims are hard to understand, accuses them of "feigning injury," says they are wasting the court's time, and calls their action "obviously unmeritorious."

Does it sound like a lot of briefs you've read in your career? At the end of his post, Kennerly gives this advice:

Outrage and scorn are not wholly forbidden in front of a judge or a jury but you have to earn it.

An opening brief filled with sarcasm will perturb a judge doing his or her best to reserve judgment until they've heard both sides just as much as an opening statement filled with indignity will repulse a jury doing their best to be fair and impartial until they've heard all of the evidence.

Kennerly's post stands as a good reminder to all of us who write for judges--judges who are always more interested in the facts and the law than our own belly-aching about the other side.

Keeping Up with Tech for Lawyers: Some Resources

If you're a tech junkie like I am, you probably like to keep up on the latest tech news for lawyers. Here are some resources to keep in mind:

• DennisKennedy.blog
• iPhone J.D.
• PDF for Lawyers
• Digital Workflow
• Dennis Kennedy's tech columns in the ABA Journal
• FutureLawyer
• This Week in Law (podcast)
• TechnoEsq
• Law.com Legal Technology
• Law.com In-House Tech
• Law.com Legal Technology White Papers
• Law.com Legal Technology Downloads
• Mac Litigator
• Mac Lawyer's Notebook
• MacLaw Online
• ISBA Legal Tech Newsletters
• Law Tech Guru Blog
• Digital Practice of Law
• ABA TechShow Blog
• The Mac Lawyer
• Acrobat for Legal Professionals
• Apple site for lawyers
• Home Office Lawyer
• The Trial Technlogist's View

If you know of other sites like these, please send me an email or leave a comment. (Meanwhile, why aren't there any resources dedicated solely to "cloud computing for lawyers"? It's some Internet space that's ready to be snatched up!)

Plaintiffs' Lawyers: How to Prepare for Your Client's Deposition

Your client's deposition can make or break a case. Because of its importance, always plan to do too much preparation, rather than too little.

Here is a suggested procedure:

• A few weeks before the deposition, send your client a letter with pre-printed materials explaining the deposition process, what you expect the client to do, and what the client should bring to the deposition (e.g., requested documents).
• Meet with the client, not once but twice. The first meeting should take place a week or so before the deposition. The second meeting should take place the day before (or the same day).
• Plan to spend at least two hours in the first meeting. Here's a checklist of points to cover:
  • The purpose and use of the deposition ("it's the other lawyer's chance to hear your story. Once you tell him, you won't be able to change the details later");
  • The layout and procedure--what the client should wear, who will be present, where people will sit ("I'll be sitting right next to you"), how the deposition will begin, the court reporter's role, etc.;
  • How to answer questions ("listen to the question, then answer only the question that was asked"; "don't volunteer"; "if there is silence, don't think you have to fill it up"; "'I don't know' and 'I don't remember' can be acceptable answers, if true"; "the deposition isn't a test to see if you remember dates, just do the best you can");
  • What your client has said previously about the facts of the case--interrogatory answers, letters, documents, medical records;
  • What others have said about the facts of the case as it pertains to your client's testimony;
  • How you expect the questioning to go; 
  • Common pitfalls--arguing with the opposing lawyer, exaggerating small details. (Credibility and a good demeanor are keys to a successful deposition.)
  • Do some role playing in order to give your client confidence that he or she will be able to get through the deposition;
  • What your client should do when you object ("give me a chance to object before you answer, and listen closely if I make an objection");
  • Areas that you think will be a problem for the client;
  • Areas that are important for the case that you think will be asked (for a plaintiff, "What are your physical complaints?" and "What were you once able to do that you can't do now?").
• In the second meeting, ask your client if he or she has questions, then do a review of the first meeting, with an emphasis on how to answer questions, particularly problem questions that you anticipate will be asked.

An ill-prepared client can wreck a case. When it happens, it's usually the lawyer's fault.

Don't just prepare for your client's deposition--overprepare.

Related posts:

1. "Preparing Witnesses for Depositions: Here's a Step That's Often Forgotten."

2. "Defense Lawyers: How to Prepare Witnesses for Depositions."

3. "Testifying at Trial: Don't Let Your Client Make These Disastrous Mistakes."