[W]hen it comes to serious injury lawsuits against a single defendant — where the only issue is the amount the defendant is willing to pay to settle the case — it’s hard to articulate what, exactly, the mediator can accomplish. Assuming the clients and lawyers aren’t irrational, there’s little for a mediator to work with, there’s just a number on one side and a number on the other.
This quote was pulled from the beginning of Kennerly's post. He goes on to make three "suggestions" for mediation. Here is the first: "Do not mediate unless the defendant has both (a) made a reasonable offer in writing and (b) has agreed to bring a representative with authority to settle at your current demand."
Good advice. For Kennerly's other suggestions, read the full post.
When you are cross-examining a witness, you should be careful not to give the witness an opportunity to explain. This is exactly what you'll do, however, if you use adjectives needlessly--
Q. "You couldn't see the collision clearly, Mr. Witness, could you?"
A. "Yes, I could. I had a very clear view of the collision. I was standing right there when it happened--there no way I could have had a better view."
The witness might also reply, "It depends on what you mean by 'clearly.'" In either case, the witness is no longer under your control, and the jury is watching him, not you.
Rather than using adjectives, think about the facts that together can stand in place of the adjective, then turn each of these facts into a separate question. It will make your point as clear as possible, will give the jury a visual image, and will keep the witness under your control--
At The Velvet Hammer, Karen Koehler paints a realistic picture of the difficulties involved in finally getting a case to trial: "Bump Bounce and Roll: Trying to start a trial" (a post that also explains why I can't watch The Good Wife or similar lawyer dramas on TV).
Want to instantly make your writing look more professional? The secret can be found in Bryan Garner's A Dictionary of Modern American Usage in an entry titled "phrasal adjectives"--
When a phrase functions as an adjective--an increasingly frequent phenomenon in late-20th-century English--the phrase should ordinarily be hyphenated. Most professional writers know this; most nonprofessionals don't.
The primary reason for hyphens is that they prevent miscues and make reading easier and faster. Following are some examples culled from The Wall Street Journal and The New York Times:
There's more in Garner's book, but this snippet gives you all you need to know. You can find more examples in almost any print publication. By following the phrasal-adjective rule in your own writing, you'll immediately give it a more professional, polished appearance.
Publication Note: Originally published on 11/21/95, but just as true today . . .
I titled this "Hodgman for the Legal Set", because I think fans of one would enjoy the other ... It is our world, but at an oblique angle, where there is a wealth of strangeness and even sadness behind the expensive suits and crushing workloads and sacrificed personal lives.
I think that oblique angle allows Schaeffer to get into what is important to him without being pedantic: the nobility of the profession in theory and in practice. He has scorn for those who abuse the law, who treat it as a game, who use litigation tactics as a way to avoid the truth. It is never heavy-handed, but there is an anger there. ...
That's a long way for a book that is, at its heart, wildly funny. The reader is drawn through verbal mazes one step behind a winking guide. For a book that ostensibly teaches you what you need to know about dealing with lawyers, Schaeffer proves that the practice is as weird, unpredictable, and as idiosyncratic as the human race.
Evan Schaeffer is a unique lawyer for three reasons. He's extremely successful (rare in any profession) yet he also has a sense of humor (rare among lawyers) and is down to earth (even more rare).
In How to Feed a Lawyer, Evan offers insights and commentary about the legal system and through humorous essays, also shares what it's like being a lawyer. ... Evan's book is well-written, insightful, and worth reading.
--Crime & Federalism
Loved this book! Great fun to read and excellent writing by a Midwest lawyer who loves to poke fun at himself and his profession, while educating & enlightening his readers -- who are most likely -- though don't have to be -- fairly informed on the legal profession.
The book isn't for lawyers who take themselves or their profession too seriously. We don't want them anyway!
The book is for BigLaw associates and partners; young lawyers, small-firm lawyers and solos; bitter lawyers and wannabe lawyers; most (but not all) of the judges I have known; lovers of H.L. Mencken, Mark Twain, or James Thurber; wannabe lawyers; and bright people of all types.
**Sarah Bernard is my sister. Take this one with a grain of salt.
Using an iPad for trial presentation is not only more efficient and economical than traditional presentations, it is also drop-dead easy to set up. Each and every piece of evidence is just a tap away, which means no more lugging around blown-up foam board exhibits or fiddling with unreliable overhead projectors.
As Morris writes, "As for setting up and presenting on an Apple TV, this article will teach you everything you need to know." The article covers equipment, set-up, and a comparison of three apps for trial presentation: TrialPad, ExhibitView 5, and Trial Director.
My first depositions were often frightening experiences. Like most new lawyers, I plunged ahead and tried to do my best, but I rarely felt at ease.
As my discomfort gave way to confidence, I developed techniques I began to use at every deposition. What follow are guidelines, not hard-and-fast rules. But I consider these techniques so useful I continue to use them today.
For the six techniques, see the full post. Meanwhile, you'll find much more about depositions at Trial Practice Tips in the deposition category.
The best trial lawyers move around a courtroom with such ease that you'd think they were trying the case in their own living rooms. When you are up against such lawyers, you'll be surprised by how disarming it can be. Sometimes their mistakes just won't seem to matter. In fact, you'll wonder, was that a mistake at all?
While this sort of confidence comes only with experience, there are some shortcuts you can take to being comfortable in a courtroom. Try these six:
Meet with the Judge Every judge has special trial procedures and quirky personal rules that are best learned before you violate them. The more you know about the judge's personal trial procedures ahead of time, the more comfortable you will feel at trial. Question the judge at a pretrial conference or arrange a meeting that's convenient for opposing counsel. Put the question as directly as possible: "Your Honor, do you have any special trial procedures that I should know about?" Don't worry about sounding like a novice; you won't.
Talk to Other Lawyers Asking the judge directly is good, but so is asking other lawyers. Find out about as much as you can about the trial judge by asking lawyers with firsthand knowledge. Does the judge require more formality or less? Will he impose limitations on your ability to move around the courtroom? How is his demeanor? What sorts of things will make him angry?
Learn the Layout of the Courtroom If you are trying a case in an unfamiliar courtroom, spend some time there the week before. Consider where you'll sit, where you'll put your files, and how you'll get from one place to another with a jury box full of people who will all seem to be watching your every move. If you have an extensive computer set-up, conduct a dress rehearsal with your staff. You will be glad later that you did.
Get to Know the Courtroom Personnel I suppose some lawyers don't take the time to learn the names of every member of the judge's staff before the trial begins, but this is not only risky, it's rude. Try to do more than learn their names; engage in some small talk and get to know a little about them too. Not only will you appreciate their smiles after a difficult day of trial, but they might be a big help when it comes to courtroom logistics. During a trial, you can't have too many friends.
Be Yourself Sure you have seen some great lawyers who you would like to imitate at trial, but imitation just won't work. You're a lawyer, not an actor. Focus on the lawyering, try not to be too self-conscious, and don't be hard on yourself when you mess up. The showmanship may come naturally, but if not it won't matter: you'll be acting like yourself, which will make everyone happier (and much more comfortable) in the end.
Overprepare There's no better way to make sure you will be relaxed at trial than to overprepare in the weeks before it starts. You won't be able to prevent the heart-stopping surprises that complicate every trial, but you will be more likely to keep your cool when they come.
Publication Note: Originally published 12/30/05. Republished today with minor edits.