The Illinois Trial Practice Weblog

Trial Notebooks: An Alternative Method

As an alternative to an earlier post, "A Method for Organizing a Trial Notebook," here's another method of organization, as suggested in a book by Leonard H. Bucklin--

• The Plan
• Summary
• Pretrial Orders
• Our Witnesses
• Their Witnesses
• Third-Party Witnesses
• Our Experts
• Their Experts
• Exhibit List
• Contacts
• Deposition Summaries
• Deposition Arrangements
• Damages
• Pleadings
• Admissions
• Trial Memo
• Motions in Limine
• Motions and Orders
• Voir Dire and Juror List
• Opening and Closing
• Jury Instructions
• Settlement
• Insurance

The list is from Bucklin's Building Trial Notebooks (James Publishing). I agree with Bucklin that "your trial notebook should be your primary file in a litigation case." As Bucklin adds, "When a litigation case is started, that is also the time to start your trial notebook for that case."

Related post: "Motivating Yourself for Trial: Start a Notebook Early."

A Book All Trial Lawyers Will Want to Read

There's a new book about cross-examination that's easy to recommend: "Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers," edited by Steven F. Molo and James R. Figliulo.

With a dedication "to all those who enjoy a good courtroom story," the book contains fifty articles about cross-examination, each by a different Chicago trial lawyer.

The book's forward is by Scott Turow, who writes that the book's authors "represent the crème de la crème of Chicago's trial bar." Turow continues: "Their combined wisdom probably means that if you read this book, you will never need to peruse another text about cross-examination."

It's a big claim, but based on the time I've spent with the book, Turow is probably right. As he adds, "[T]hese lessons are taught by the most effective educational means ever devised, a technique at which all great trial lawyers excel--story telling."

Since this is the type of book that's filled with good ideas for weblog posts, expect to hear more about Your Witness on this weblog--properly sourced, of course, so that you'll remember to get a copy for yourself.

An Expert-Related Practice Tip from Deposition Checklists and Strategies

This is just one of the many practice tips that you'll find liberally scattered throughout the eight chapters of my book, Deposition Checklists and Strategies (James Publishing):

§4:255 Practice Tip: What the Expert Did Not Do

Remember to ask the expert not only what he did to prepare himself to render an opinion, but what he didn’t do. Of course, you cannot come right out and ask, “Please tell me what you failed to do in rendering an opinion.” Instead, ask the expert whether he did or didn’t do specific things.

In a pharmaceutical case, ask the expert whether he performed these tasks in order to prepare himself to give an opinion:

• Ask the witness whether there was anything that would have been helpful to him in reaching an opinion, but which he lacked the time to do.
• If the witness answers with a list of things for which he lacked time to do, ask why conducting these steps would have helped him to reach an opinion.
• Ask the expert whether or not he personally examined the Plaintiff. If not, then all his knowledge about the Plaintiff’s medical condition must have come from the medical records.
• Ask the witness whether he read all the medical records. If so, is he confident that he obtained them all? Why? Did he ask the defendant’s lawyers to provide him with any additional medical records?
• Ask the witness whether he performed a search of all the relevant literature about the particular issue. If not, why not?
• Ask the expert whether he consulted with other experts in the field. If not, why not?
• Ask the expert if he reviewed all the documents in possession of the defendant that were relevant to his opinion. If so, who provided him with these documents, and how does he know he reviewed all that were relevant?

In other sorts of products-liability cases, you can ask whether the expert performed all relevant tests, conducted a literature search to determine whether there were other incidents of injury similar to the one that gave rise to the lawsuit, and so on.

For more information about the book, see this brochure at James Publishing (pdf). You can also learn more about the book in the following posts at Illinois Trial Practice--

• "Listing the Chapters in My Deposition Book"
• "A Plug for My Deposition Book: Some Specialized Deposition Outlines"
• "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
• "Listing Some of the Practice Tips in My Deposition Book"
• "More Practice Tips from My Deposition Book"

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.

More Practice Tips from My Deposition Book

The book I recently wrote about depositions, Deposition Checklists and Strategies (James Publishing, 2006 Rev. 2007), contains eight chapters. As a bonus, each chapter contains an assortment of "practice tips," comparable to the type of tips I post here on the weblog. Here are some of the practice tips you'll find in Chapter 5, Medical Malpractice--

• Practice Tip: Establishing Liability Without an Expert
• Practice Tip: Jury Instructions
• Practice Tip: Case Selection
• Practice Tip: Explaining Medical Malpractice Cases to the Client
• Practice Tip: Hospital Liability
• Practice Tip: Procedurally-Based Defense Strategies
• Caution: Pre-Litigation Collection of Medical Records
• Practice Tip: Selecting Your Medical Expert
• Caution: Don't Wait to Long to Consult an Expert
• Practice Tip: Thinking in Reverse About Witnesses
• Practice Tip: The Locality Rule and Expert Witnesses
• Practice Tip: The Difficult Witness
• Practice Tip: Prepare for the Doctor-Defendant Like You Would an Expert
• Practice Tip: Shortening the Preliminary Questions
• Practice Tip: Examine the Doctor's Original Medical Records
• Practice Tip: Admissibility of Statements by Your Client
• Practice Tip: Peer Review
• Practice Tip: The Defendant Who Is Qualified as an Expert
• Caution: Never Finish Until You're Done
• Practice Tip: Prior Lawsuits
• Practice Tip: Medical Terminology
• Practice Tip: "In Lay Terms"

For more information about the book, see this brochure at James Publishing (pdf). You can also learn more about the book in the following posts at Illinois Trial Practice--

• "Listing the Chapters in My Deposition Book"
• "A Plug for My Deposition Book: Some Specialized Deposition Outlines"
• "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
• "Listing Some of the Practice Tips in My Deposition Book"

Carolyn Elefant's Solo by Choice

In her new book, Solo by Choice: How to Be the Lawyer You Always Wanted to Be, Carolyn Elefant of the MyShingle weblog writes that technological advances have made it easier and cheaper to open a law office than ever before. At the same time, the old biases against solos are falling away. Says Elefant, "In an entrepreneurial age, starting your own law firm is now appreciated for what it is--an act of entrepreneurialism with an enormous potential for success."

How does one go from law school or a big-firm job to a career as a solo? Elefant's book provides a blueprint. You'll find out how to reach a decision about whether a solo career is right for you, how to plan for the change, and how to grow and market your new practice. One of the book's principle strengths is that it draws on personal anecdotes and insights from scores of real-life solos. There are checklists throughout the book and a number of helpful appendixes with tips for buying equipment, setting up a "paperless office," performing on-line research inexpensively, and creating a sample forms library.

Elefant's book is recommended not only for lawyers thinking about a solo career, but also for those who've already taken the leap, who can read it both for inspiration and new ideas. For other thoughts about the book, see the weblog posts at The Inspired Solo, Build a Solo Practice, LLC, and Simple Justice.

Listing Some of the Practice Tips in My Deposition Book

The book I wrote about depositions, Deposition Checklists and Strategies (James Publishing, 2006), contains seven chapters. As a bonus, each chapter contains an assortment of "practice tips," comparable to the type of tips I post here on the weblog. In a few cases, the posts and practice tips even overlap a bit.

Chapter 2, Vehicular Liability, contains these practice tips:

• Practice Tip: Don’t Overlook Potential Defendants
• Practice Tip: Know the Statutory Law of Your State
• Practice Tip: Discover and Attack the Facts Upon Which the Defense Is Based
• Practice Tip: Inspect the Scene
• Practice Tip: Secure the Automobile If It Is a Total Loss
• Practice Tip: Consult With Your Client’s Doctor
• Practice Tip: Learn to Do Informal Discovery
• Practice Tip: Abstract Depositions as You Go
• Practice Tip: How to Use Experts in an Auto Case
• Practice Tip: Putting the Witness at Ease
• Practice Tip: Driving Experience and Licensure
• Practice Tip: Estimates of Times
• Practice Tip: Establishing Fatigue
• Practice Tip: Lack of Damage as Evidence of Negligible Force
• Practice Tip: The Time, Speed, Distance Formula
• Practice Tip: The Expert’s Knowledge and Understanding of Case-Related Facts
• Practice Tip: Testimony From the Expert Supporting Your Theory of the Case

Chapter 6, Employment Discrimination and Termination, contains these practice tips:

• Practice Tip: Duty of Good Faith and Fair Dealing
• Practice Tip: The Plaintiff’s Employment File
• Practice Tip: The EEOC
• Practice Tip: Screening Employment Cases
• Practice Tip: Defining “Document” to Include Information in Electronic Format
• Practice Tip: Consider the Use of a Corporate-Representative Deposition on Electronic Discovery Issues
• Practice Tip: Other Steps to Take Where Electronic Information Is at Issue
• Practice Tip: Advantages of Receiving Information in Electronic Format
• Practice Tip: Admissibility of Employee E-Mails
• Practice Tip: Explore All Categories of Damages
• Practice Tip: Deposing the Alleged Harasser
• Practice Tip: Plaintiff’s Credibility
• Practice Tip: Getting Assent to Principles With Which the Witness Cannot Disagree

Deposition Checklists and Strategies is available through James Publishing. For a detailed brochure about the book, look here (pdf).

Related Post: "My Coverage of Expert Depositions in Deposition Checklists and Strategies"

Another Book to Think About: The Litigation Manual: First Supplement

Many litigators cherise their three-volume Litigation Manual from the ABA Section of Litigation, which collects articles from the Litigation journal. Although I don't cherise mine, exactly, I do like it a lot. Now comes news of The Litigation Manual: First Supplement, edited by Pricilla Anne Schwab. It's another must-have. It contains 1,100 pages and 77 new articles from Litigation. Here are a few of them:

• Motions in Limine: The Little Motion that Could
• Developing Evidence from Nonparties
• Deposition Essentials: New Basics for Old Masters
• Preparing for Spontaneity at Trial
• From the Bench: What Works--Evidence from a Trial Judge's Perspective
• The "In" Place to Be: Getting that Document into Evidence
• Teaching through Experts: Changing the Obscure to the Obvious

Except for a flier announcing the new publication, I didn't receive anything for writing this post. I just like the books. You will too.

Related Post: "Litigation Magazine."

Listing the Chapters in My Deposition Book

My book Deposition Checklists and Strategies, recently published by legal publisher James Publishing, contains the following seven chapters:

• Deposition Procedures and Strategies
• Vehicular Liability
• Premises Liability
• Products Liability
• Medical Malpractice
• Employment Discrimination and Termination
• Insurance Coverage Disputes

Each chapter begins with an analysis of the substantive law from the plaintiff's point of view, followed by an overview of the typical defenses. Each chapter also includes a discovery plan, sample depositions and commentary, numerous practice tips and sample forms. At the James Publishing website, you'll find the complete table of contents, along with an overview of the book, which costs $99, not including the annual updates.

Related post: "My Coverage of Expert Depositions in Deposition Checklists and Strategies"

My Coverage of Expert Depositions in Deposition Checklists and Strategies

I've always thought that it's depositions of experts that are the most interesting and fun to do. In keeping with my interest in expert depositions, I made sure to cover them at length in my book Deposition Checklists and Strategies.

Please excuse this brief commercial, but I wanted to digress from this weblog's usual fare to point out some of the book's contents. The coverage of expert depositions includes a detailed book section about the basics of expert depositions, including eight sections on "the Goals of Expert Depositions," ten sections on "How to Prepare for Expert Depositions," and seven sections on "Expert Depositions Strategies." Some of these separate sections include some of the "practice tips" I've listed below.

In addition, the book includes questions and answers from three full expert depositions:

• Sample Deposition: Defendant’s Causation Expert in a Defective Drug Case.
• Sample Deposition: Defendant’s Roofing Expert in a Property Damage Case.
• Sample Deposition: The Defendant’s Accident Reconstruction Expert.

These sample depositions serve as a template for deposing any kind of expert.

Finally, spread throughout the book, you'll find separate sections containing "practice tips" for expert depositions. Here are some of them:

• Practice Tip: Attempting to Strike the Expert
• Practice Tip: Five Ways to Hit Home Runs With an Expert’s CV
• Practice Tip: Privilege and Experts
• Practice Tip: “Why Is That?” and Other Follow-Up Questions That Never Fail
• Practice Tip: What to Do When You Arrive for an Expert’s Deposition
• Practice Tip: What to Do When the Defendant Buries You With Experts
• Practice Tip: Establish the Role the Defendant’s Lawyer Played in Assisting the Defendant’s Expert
• Practice Tip: How to Move Quickly Through the Expert’s File
• Practice Tip: Catch the Expert Unprepared (by Finding Out What He Hasn’t Read)
• Practice Tip: Asserting Control Over the Witness Early in the Deposition
• Practice Tip: When and How Was the Expert Retained
• Practice Tip: What the Expert Did Not Do
• Practice Tip: E-Mails
• Practice Tip: Pinning Down the Expert
• Practice Tip: You Don’t Need to Be Smarter than the Expert
• Practice Tip: Using the Deposition to Cross-Examine at Trial

There's all this and much more about experts in the book. That concludes this brief commercial. If you want to learn more, look here: Deposition Checklists and Strategies (James Publishing 2006).