Lean and Mean Litigation Blog

What's That You're Wearing - Or An Old School Approach To Courtroom Attire

 

After having been on trial for a week and a half and now in the midst of drafting our response to Defendant's Rule 52(c) motion (bench trial)(comments and observations from this trial will of course have to wait until it ends, but as always there are things one always learns – even an old dog like me), I received a very nice email from one of the readers of my blog and it inspired me to take a break and write a new blog post.  My son says that I have to invest more time in it, since I have broken the 30k hit mark after having only written approximately 30 posts (me I think that ain't that much when you compare it to the many hot legal blogs out there).

In any event, my reader, in thanking me for the blog, noted that he was from Syracuse and that he appreciated that the tie I wore in my picture on the blog was blue and orange. I promptly responded that the color must have been off because when it comes to courtroom attire, I have, over the years, come to only wear ties with red, maroon and blue.  This then reminded me of a recent NYT article I had read just prior to trial [NYT Times Article] interviewing various famous NYC criminal attorneys and how superstitions/rituals played a role in what they chose to wear at trial.

So this got me to thinking - why is it that I always wear the same thing in  court be it for a status hearing, argument on a  motion, trial (bench or jury) and appellate argument - white button down oxford shirt, dark non-styled/American suit (only small/thin stripes - no gangster wides), and maroon and blue striped ties/or diamond/dotted maroon ties? (NB: with the exception of red and blue  ties – I wear them, sometimes, when I am going to do a key cross – a “Mr. Subliminal message” to the fact finder/ witness that “there will be blood” or just a pump up for me – yes it is a little crazy and I don’t always do it, but in the interest of full disclosure I must admit this practice)

So is what I do  a superstition or method?

The answer is that it is part method and part respect for the solemnity of what we do - the latter sentiment being one that I have developed over the years of my practice as I have come to understand how important our courts are to the very fabric and defense of our democracy - both in terms of providing a forum for the civil resolution of civil disputes and for the protection of individual rights against a new and ever burgeoning social order/organization that can, in many instances, swallow those rights in large swaths (again I am a civil litigation attorney, so you criminal attorneys may and are certainly entitled to have your own views about the system and whether it is functional or not).

So let's get the solemnity thing out of the way.  My wearing only white shirts, dark suits and muted ties is my way of saying that I respect where I am at - my homage to our friends over the pond who still wear wigs and tails.

But it is the method behind my sartorial choices that is the main subject of this post.  My dress is a litigation strategy - sure it is not the most important one - but it is a strategy nonetheless.  So what is it?

Well - it is not rocket science and I most certainly cannot lay claim to inventing it. But it is an old school approach that I think is worth repeating.  I wear what I wear because I do not want what I wear to get in the way of what I am saying.  When we are in court, be it in front of a judge or in front of a jury, our message, not who we are or what we wear, should be what is coming through.  You don't want to create unwanted or, more important, unintended interference with those who are receiving your message.

Wearing conservative/muted and non-ostentatious clothing best ensures this. Now don't get me wrong - when I play in my blues band (I was a musician in the sixties/seventies - with the hair -when I had it - and all the rest) I perform in clothes that befit the occasion - a nice brim - colorful shirts - cowboy boots etc.  In this forum - as a performing musician - the crowd expects this.  In fact, when I first came back to performing a few years ago - I came to realize that crowds on average actually reacted better when I would wear my musician's "uniform" - even though my music was essentially the same regardless of what I wore.  It was part of the show - part of what they expected a musician to look like.  And since, when I am performing my music, my job is to make the audience enjoy the experience, and since I also like the look too by the way, I happily wear this uniform when I play.

So what does this mean when we appear in court?  Well, we too are playing to the crowd - only this time it is either a judge or a jury or both.  And we must play to what the audience likes..  Sure there are many judges and jurors who might not be offended by the lawyer who wears custom tailored Italian suits, bold and obviously expensive ties, matching kerchief while strutting around in Gucci loafers.  But to borrow a saying from a friend of mine, "I sure wouldn't want this guy arguing my death penalty appeal."

To put it another way - it is highly unlikely that any judge or juror is going to be offended by the conservative attire I choose to wear in court (except for one 7th Circuit Judge whom I seem to recall once stated that he preferred lawyers arguing before him to wear white dress shirts as opposed to button down white shirts).  But when one comes into court wearing several thousand dollars of clothing, expensive jewelry,  or clothing that attempts to make a statement (either bold colors, ostentatious or the like)  the chances are that a judge or a juror may be offended - either consciously or unconsciously (which is even worse since you will never pick up on it).

So why do it?  Well, Isn't that what we are about - making sure that our client's cases get a fair shake?  Shouldn't we save the sartorial splendor to a forum where it will have no potential consequences?  Isn't the statement we should be making our client's case and not who we are or how good we look?

Over my thirty two years of practice, I have had the pleasure of co-counseling and trying cases with many of the  finest trial lawyers in the country.  With few exceptions (and those were leftovers from the prior generation) they followed this rule.  I can remember one of them had holes in the soles of his loafers when he raised his feet up on the desk in his office, but he recently got a $226 million dollar verdict (as an aside, he and I both wear Casio watches – because we are workout fanatics – but I also think that fancy watches are a real turnoff – I don’t own one but if you do don’t wear it in court).  Another with whom I tried a case and who was our lead trial counsel he wore  L.L. Bean stuff with muted earth tones – always does - we obtained a $148 million verdict.

Anecdotal evidence for sure – but I don’t think that it is by chance what these two preeminent trial lawyers wear. If it is not conscious choice maybe it is because it is who they are – natural communicators whose innate personalities eschew the ostentatious. 

And maybe that is the larger point here- the great trial lawyers in my view exude directness and honesty.  It comes through when they communicate - and fact finders – whether a jury or a judge – can sense that directness and honesty.  Draping oneself in expensive or “statement” clothing is a message that says that one feels the need to say something about themselves rather than their case – I am rich, I am cool, I am a rebel, I am wild.  And perhaps judges or jurors can sense that – even if it is only  on the outer edges of their consciousness.  But just for that reason it can become an, albeit undetectable potential interference to your message hitting home.

Frankly, most lawyers probably do what I do, so this post may have been just a commiseration with those of who know this.  But heck, it was a nice short diversion from the work in front of me. Back to work now.

P.S. My apologies to the over 50% of women lawyers out there for not discussing, with the same particularity, what I think women should wear.  I have enough trouble with my clothes choices, and frankly it would be folly for me venture into what women should wear, particularly since it appears from what I can see that they have far more choices than men.  But I think that the spirit of what I have said here should apply equally to women lawyers too – you want to look respectful and not fashionable.  There are a few real good role models on the Supreme Court by the way.

           

FOLLOW ME ON TWITTER: @LeanMeanLaw

For those readers who have enjoyed my posts, I apologize for having let the Lean and Mean Litigation Blog languish without a fresh post. As those of you who have followed this blog may realize, I try to ensure that most of my posts are quality posts that impart some educational value (although sometimes I do get a preachy). I am in the midst of preparing for trial but nonetheless am going to try to get this up and going more regularly. Also, at the suggestion of my son, I am entering the Twitter world and am going to try to tweet stuff on the practice and music. If you are a Twitterer and want to follow my tweets on the practice or on my budding newly restarted music career (I am also a blues musician - hey I was raised on the South Side of Chicago) follow me at @leanmeanlaw.

Dealing With Greased Pigs and other Similar Witnesses

I welcoming myself back to my blog.  After a long hiatus during which I was very very busy, I just didn't have time to post.  But now, even though I am still very very busy, I am told that I should start posting again.  So here goes.

What should you do when you are confronted with what I will call the greased pig witness at a deposition?

The greased pig is someone who answers your questions with slime.  By that I mean, if you ask a question you never get an answer.  You get something else that may touch on the subject matter but is not responsive or the witness acts as if they are answering your question but it is actually a filibuster answer that is non-responsive and you have just wasted five minutes of your seven hours listening to an artful dodge.

These are not easy depositions.  Witnesses who can pull this off are rare.  Some can do it for a while but don't have the ability to keep it up for hours on end.  But there are some witnesses who are skilled at question avoidance [it is a skill that can rarely be taught by mere coaching from opposing counsel - it, like hops in basketball and fast guitar playing, is a natural skill - if one can call obstructing justice a skill].

So other than jumping across the table - after a few hours of this stuff - and grabbing the witness by the scruff of neck ,what should you do?

What you need to do is quite simple although quite tiring and requires patient persistence. You have to preserve your record for purposes of seeking sanctions and getting to take the deposition again, perhaps before a Magistrate or the Court. In the process you may also wear the witness down and in any event you will still be doing what you need to do at a deposition - persisting in finding out what the witness will say at trial.

So what do you do?  After you see that there is a pattern of non-responsive answers, I would begin stating after each such answer something to this effect - "Mr. or Ms. Witness, that is not responsive to my question, I will have the court reporter read the question back and could you please answer the question as asked" or something like that (1) makes clear on the record that you believe that the answer was non-responsive and (2) that the question be asked again.

Keep on doing it until you get an answer that is responsive.  Yes, it will take time but it is worth it.  First, you get your answers and second you are making a record of tolerance and at the same time notifying the witness and their counsel of the non-responsive pattern.

Sure, opposing counsel will come back with the knee jerk response "The answers are responsive you just don't like what they are....yada yada yada"  Don't argue with them, just go on and repeat the process.  After the process has been repeated three or four times, I would then state to counsel the following: (1) the witness is displaying a pattern of non-responsive answers, (2) that you are going to take a five minute break during which time counsel can, if he or she so chooses, admonish the witness to answer the questions as answered and (3) that if the conduct conduct continues after the break you will either terminate the deposition and seek sanctions or you will continue to the end of the day and seek sanctions thereafter.

Counsel will respond with the same yada yada.  Let them say whatever they want. After they are done, say that you do not intend to argue about this, that you have made your record and it is now time for a break.

If, after the break, the conduct continues, then keep on plodding away and keep making your record.  Depending on how egregious is the conduct will dictate how much if any sanctions you can get.  It is your judgment call as to whether you terminate the deposition on the spot - my recommendation is to do this only when the conduct is bordering on the absurd.

When I have confronted these sorts of witnesses, and it happens, and I have taken the above tack, the better counsel have gotten their witnesses back in tow.  Those that don't are usually the ones that you can eat alive at trial.  Why?  Because these counsel need to hide behind discovery abuses rather than letting their case's story come out.

So take some succor in all of this.  If this happens at trial, the witness will be skewered by most judges after about two or three times.  If the witness knows nothing else other than slime - which is the case in many instances [you can take the boy out of the country buy you can't take the country out of the boy sort of thing]- then you are going to be the winner in the end.

Just keep the faith and be persistent.

IF IT IS TOO GOOD TO BE TRUE - LESSONS FROM MADOFF AND MR. PONZI

Over my over thirty years as a complex litigator I have, unfortunately, had the opportunity to represent individuals and classes of investors who have been the victims of Ponzi schemes.  In the early days of my practice, a large Ponzi scheme involved the loss of, say, a $100 million.  Today's schemes, like the Madoff debacle, make those look like drops in the ocean.  Yet, the impact is still the same just on a larger scale, with many if not most investors' lives destroyed.  Having seen the impact of the first Ponzi scheme that I was hired to proscecute on the civil side, it does not take long to conclude that Ponzi operators can cause more death and suffering that a group of serial killers.

The modus operandi also is eerily similar - the perpetrator creates a special aura about himself and his investment scheme [this is not intended to be sexist but from my experience most Ponzi operators have been men] and then finds the right marks to prey upon.  The bigger the scheme the more elaborate is the marketing aperatus - with the perpetrator enlisting the aid of various third parties, be they broker-dealers, financial advisors or other intermediaries [who are always well compensated].  The basic theme is also the same - the perpetrator has some special insight that allows him to create better than market returns.  Why?  Because, in the absence of better than market returns, there is no reason to invest.

As a result, these investments always have another common denominator - they are too good to be true.  Regardless of whether the investors knew that they were investing with Madoff or whether they were totally ignorant of who he was because they had invested through an intermediary, there was one common theme that ran throughout their investments - they were making better than market returns both in up and down markets.

This runs head on into the one simple rule that I have gleaned over the years of representing investors injured by Ponzi schemes and the one rule that would have stood a good chance of their avoiding being defrauded in the first place - if an investment is too good to be true it ain't true.

I was once being hired by a large institutional client who had been defrauded in a large securities offering.  They had done their due diligence and were still the victim of the fraud.  Nothing they could do in that situation other than hire me to pursue the defrauders.  Our meeting occurred around the time that Enron had hit the fan.  So I asked why they weren't hiring me for Enron.  They smiled and said that, unlike most other institutional investors, they had not invested a single cent in Enron.  Why?  Because, even though the stock was a darling of Wall Street, and everyone else was juicing up their portfolios with it, they never understood how Enron made its money, and thus they took a pass on investing in its securities.

A simple rule that all investors should follow - if you don't understand how the investment works don't invest.

Easy to say in hindsight but it is the one lesson that must be taught.  I know.  About four years ago, an acquaintance of mine asked me if I wanted to invest a six figure amount with a Connecticut brokerage who had a deal that would quintuple my money in five years.  The lure was strong.  But I disciplined myself and followed my rule.  My acquaintance didn't.  I have not had the temerity to ask whether he has quintupled his money or was the victim of Madoff or some other scheme.  But the odds are that he was.

I am not an investment advisor.  I am one of those who comes in to try to recoup loses after the frauds have been committed.  But I have learned, over these thirty years, that the same thing that makes a good complex litigator makes a good investment.  Simplicity and clarity.  You must not fall prey to your greed and you must not let others prey upon it.  There are no easy ways to make money. 

Lean and Mean Litigation Blog's Author Joins New Firm

I am pleased to announce that on February 1, 2009, I became Of Counsel to Futterman Howard Watkins Wylie & Ashley, Chtd. a Chicago based litigation boutique.  They are a great group of lawyers and I look forward to practicing with them.  I have been pretty busy since then and was pretty busy leading up to my joining the firm, so my posting has unfortunately lagged.  I hope that as I settle in, I can begin posting again.

Deciding Who To Depose [Part II]

In Part I of "Deciding Who to Depose" I discussed why a blunderbuss approach to creating a deposition program is inadvisable - both because of litigation costs and litigation strategy.  Today's post is about the basic decisional approaches that one needs to take in order to develop a meaningful deposition program designed to get your case properly prepared for summary judgment and trial.

In my prior post, I ended by discussing the six main categories into which witnesses can be placed.  I will now address each category.  But before addressing the categories here is an approach that should be used for every potential witness.   One of my good friends [and one of the finest trial lawyers in the country that I know] relayed to me a very interesting approach that he takes - he operates under the presumption that no depositions should be taken and that the person asserting that a deposition should be taken must do so by clear and convincing evidence.

A high burden to say the least but its spirit is dead on. Depositions should only be taken when absolutely needed.  In any event, regardless of what burden you adopt in deciding whether to depose someone, here are some threshold questions that must be asked about every potential witness: 

(1) how will the witness' testimony further the ball in our preparation for summary judgment and trial?

(2) are there other means of establishing what this witness is going to say - e.g. via the written documents, a declaration/affidavit?

(3) what are the key questions we intend to ask and what do we believe will be the witness' answers?

(4) will asking these questions and receiving the anticipated answers help in our preparation for summary judgment or trial or are we better off waiting until trial to ask these questions?

Now to the discussion of the various witness categories I previously noted in my prior post:

(1) witnesses controlled by the other side that you believe are going to be key witnesses for the presentation of your case in chief;

What are the key characteristics of this witness? First off, someone controlled by the other side means that they either are a current employee or they are a former employee who has indicated that they are going to be represented by counsel for the other side. They are key to your case because either (1) they were a witness to some event or occurrence that is important to your case and there is something that boxes them into having to provide testimony favorable to your side [e.g. documentation - either a signed statement or other document authored by them] or (2) they have authored documents that contain key admissions helpful to your case.

With this sort of witness, you should start with the presumption that you want to first meet this witness when you walk up to cross-examine them on the witness stand at trial.  This is particularly so if you can obtain a stipulation from the opposing side that the documents you are interested in were authored by this witness, are authentic and are business records.  Such stipulations are routinely agreed to.

Having said that, there are counter arguments, however, for taking this witness' deposition.   One of the paramount ones is that you might want to find out, prior to trial, what this witness intends to say about a particular document or documents.  In other words, rather than rip them to shreds with your best cross examination during their deposition, you might conduct an examination calculated to draw out what they intend to say about the document.  In this way, you can better prepare your trial cross exam.  But again it must be emphasized that the purpose of the deposition is only so you can develop a better cross exam at trial - not to use up your best cross exam during the deposition.

If there are no boxing documents but you know that the witness has material knowledge about the events involved in your case and you believe, for whatever reason, that they may recount the event in some fashion that is favorable to your case, then it is probably best that you do depose them to find out what they are going to say. Again, I would not use the deposition to conduct a cross-examination but approach the deposition with the attitude that you just want to find out what they are going to say. If during the course of conducting the deposition you are presented with an opportunity to nail their testimony into a corner that is favorable to you, then you can choose to pounce on it. But I would not approach such depositions with this expectation.

(2) witnesses who you believe are going to be key witnesses for the other side and which the other side will be able to bring to trial;

I would only consider deposing those witnesses under this category whom you believe are going to be doing the heavy lifting for the other side's case. But once you determine who these are I believe that you should depose them only because you need to find out what the other side's case is going to be about. Again, with these witnesses your only objective should be to find out what it is that they are going to say and stretching them to their furthest limits in terms of what and how they are willing to say it.

(3) witnesses currently controlled by you who provide needed testimony and who for whatever reason may not be available at trial;

Quite obviously, witnesses under this category must be deposed by you. I would prepare them for their deposition just as you would a witness at trial. I would also recommend that it be video taped. Video tape is the only way to go these days in presenting deposition testimony at trial. Since this deposition is presumably going to be shown to the jury, you should prepare an examination outline in an expository fashion in the same manner as you would if you were conducting their direct examination at trial. Prepare the witness for their cross examination too just as if you were going to defend their deposition.

(4) third party witnesses who are within the subpoena jurisdiction of the court and who may testify either favorably or unfavorably for your case;

For third party witnesses who are within the subpoena jurisdiction of the court and who may provide favorable testimony for your side, it would be preferable to obtain a sworn statement rather than deposing them. If they have counsel, sometimes their counsel can get in the way of obtaining an acceptable statement that is close to what they would say under oath. In such situations you may have to depose them in order to lock in their testimony before trial. Whether you take their deposition or take your chances at trial are judgment calls that are fact specific to the witness and what they may have to say. For third party witnesses that may provide unfavorable testimony and who are within the subpoena jurisdiction of the court, you should treat their deposition like a witness under category no. 2 above. You want to find out what they have to say so that you can prepare for cross examination at trial.

(5) third party witnesses who are not within the subpoena jurisdiction of the court or otherwise not available at trial and who may testify either favorably or unfavorably for your case;

For those third party witnesses outside the subpoena jurisdiction who may provide favorable testimony, you need to depose them in a similar fashion to those in category no. 3 above. For third party witnesses outside the subpoena jurisdiction who may provide unfavorable testimony and who will not be available for trial this is a dicey proposition. If you are pretty sure that they will not voluntarily come to trial then don't depose them - unless of course your opponent notices up their deposition. If there is a reasonable chance that they will be willing to come to trial, then you need to treat them like a witness under category no. 2.

(6) witnesses currently controlled by you who provide needed testimony and who will be available at trial. No need to depose them at all- unless there are health issues in which case they then come under category no. 3 favorable witnesses.

Believes this covers most witness situations. Happy hunting.

Out of Control Profession - Or What Have You Done For Me Lately?

In an article discussing the ousting of the chairman of Cadwalader [click here] - one of the new mega NYC based firms - detailing how their "profits per partner" were down to $2.7 million and even then had only reached that level because the firm had attracted some rainmaking lateral hires, it concluded with the following:

"Both White and Link [the now ousted chairman] were among the young partners who led a drastic restructuring of Cadwalader in the 1990s. Concerned that the firm was falling far behind other New York firms, they initiated Project Rightsize, which led to the ouster of unproductive partners and practices.
The firm has continued to take a notably aggressive stance on productivity, paying top performers far more than other firms but encouraging laggards to leave."

This article and its conclusion evidence a cancer that has infected the legal profession.  It is something that should cause both those inside the profession and the clients who hire them to sit up and pay attention.  The profession has lost its way and as a result its customers are paying dearly for it - both in out of pocket costs and in the quality of what they pay for. 

For the most part, as the article about Cadwalder evidences, this whole phenomenon has been driven over the last decade or so by the New York large firm legal community.  The NYC large firms cough and everyone coughs too.

And it is a prototypic  NYC phenomenon that caused this out of control sea change in legal costs over the last few decades.  NYC large firm lawyers see the money that their clients make, rightly or wrongly believed that they are just as smart as their clients and thus believed that they were entitled to keep up -  think "Bonfire of the Vanities" on steroids.

Here is the plain truth, if you want to make the big bucks you should choose another line of work other than being an hourly rate lawyer.  Become entrepreneurial - take risks like your business counterparts.  Become contingent lawyers or get out of the practice and become a true entrepreneur - go into business.

But if you work by the hourly rate you shouldn't expect and don't deserve big bucks. Hourly lawyers are service professionals.  They get the pleasure of earning a decent living and working a craft that has non-monetary pleasures that are - or least used to be - equally important.  Hourly lawyers are entitled to make a nice living but that is it.  They are are not taking any risk.

Our profession is losing its professional compass when the be all and end all is profits per partner.  Where the kingpins of firms are the rainmakers and not necessarily the most skilled.  This includes lawyers that once may have been superstars but because of the enormous profit pressures placed on them are now so pyramided and distanced from what real lawyers can and should do, that the skills and talents that made them great now actually lay dormant [of course they would never admit that to a client that they are marketing].

Large firms can pyramid all that they want with all of their highly paid heavily recruited young associates [most of whom, in the faustian deal they have struck, don't stay with a firm long enough to learn anything worthwhile] but here is another plain truth - the practice of law - in it highest and best form - is an intimate and highly personal process. It requires the senior most lawyer on the matter rolling up his or her sleeves and becoming intimately familiar with all of the details.  Not just being filled in by subordinates at key moments.

Think of it this way - who would you want handling your death penalty trial? A lawyer who knew everything there was about your case or someone who had been filled in by a cast of thousands?  The same is true in civil matters and, by the way, it is even cheaper.

Hopefully someday the marketplace [e.g. the clients who pay] will realize that they are paying a lot of money for a figurehead or name when they could pay less and get more by engaging highly skilled lawyers who practice the old fashioned way -  providing intimate personal service to their clients.  It may result in lawyers earning less, but the profession as a whole will be the better for it.  Associates will not be required to bill ungodly hours and clients won't have to pay for the ridiculous bills.  Senior lawyers will actually work closely with young associates and thus the traditions of great lawyering will be passed on.

The Holy Grail?  Maybe.  But the marketplace may ultimately dictate it.  Here is hoping that it does.

Postscript:  I initially drafted this article several months ago when it originally came out and sat on it because I wanted to see whether this was just a blip as Cadwalder had said or was the beginning of a trend.  Since then, Cadwalder has been rocked by historic layoffs of lawyers (96 in one week) purportedly due to downturns in its financial services practice group and Cadwalder isn't the only firm dumping partners and associates by the dozens in these tight economic times. [click here for link to more recent article]. In days past, a firm would collectively tighten its belt and share the blows of such a downturn, knowing that due to the cyclical nature of business, one day's practice group superstar is tommorrow's dog and so on.  Not so today.

We probably won't ever be able to return to those good old days, but my guess is that those firms who can best re-create that model and, most important, follow it, will over time gain a competitive advantage in attracting legal talent and clients.

To Cadwalder and other firms who have fostered  or acquiesced in this firm culture that has now imploded - you reap what you sow.  Perhaps lawyers with sensible views of who they are and what our profession is about will ultimately take the helms.  Don't count on it - humility is not something that NYC cherishes.

Query:  If these large law firms feel comfortable treating their lawyers as fungible commodities when will and why don't their clients do the same?  The subject of a future post - I promise - how companies and their in-house counsel can create fungibility in their outside law firm hiring.

P.S.S. For those of you who regularly read my posts and may have wondered why I haven't posted for a while there are two reasons: (1) my game plan is to aspire to posting quality posts that discuss important issues confronting our profession - both as a culture and as practitioners of an important craft; and (2) over the last month and half I have been recuperating from my second hip replacement surgery [the by-product of too many years as a jock].  I am now back.  Posts my not come weekly but they will come more regularly - as topics present themselves.

To All Aspiring Litigators - Get Thee To A Courtroom

Today it is tougher than ever for young aspiring litigators to get hands on in court experience.  More and more young litigators are becoming litigation partners having never tried a case let alone first chair it. 

Litigator used to mean trial lawyer, now it means litigator.  The Catch-22 of today's litigation environment - cases are so big the clients and the situations demand that senior lawyers handle the critical in court aspects of big cases, few cases are tried and little cases are even less likely to be tried.

It even afflicted my generation.  While my firm - a mid-size firm - took on smaller matters just so that we could get trial experience and I volunteered for any case that was likely to go to trial ( I tried a defective wood deck case,  a defective kitchen linoleum case etc.), most private  litigation associates - particularly those  in large firms  - got no trial experience.  Most of them didn't even get to take depositions until they were senior associates "let alone try cases.  As a result, many became "litigation" partners without ever trying a case.

It is even worse today.  Why?  Because now it is accepted in most firms that "litigation" partners may never try a case.  But this is a real deficit for anyone who is serious about being a litigator.  If you don't know how it is to actually try a case, you are at a distinct disadvantage as a litigator.

The best litigators prepare every case - even if they think that they are going to get it dismissed - with the assumption that it is going to be tried.  This approach causes one to shed the unnecessary and focus on the necessary.

But if you haven't tried cases then you don't have a clue about how to prepare a case for trial.  The two go hand in hand.

Those who have trial experience are going to be a rare breed and under the law of supply and demand, those of you who want to have a leg up on your competition should get thee to a courtroom.

If your current firm won't provide you with this experience, start looking for some place that will.  Those who do - who take the risk of forging their own career path - will achieve personal and professional autonomy while at the same time will have the confidence of knowing that they know the score when it comes to this thing called litigation.

 

THE DANGERS OF RELYING ON E-DISCOVERY SOFTWARE EXPOSED AND WHY A CLAWBACK PROVISION IS THE WAY TO GO

Not sure why but I received a client alert bulletin from one of the ALM top 10 firms [I am not a client and have been adverse to this firm many times].  The bulletin advised me about how a district court had recently slammed a defendant and its counsel over a privilege waiver battle.  Apparently defendant's counsel had inadvertently produced 165 electronically stored privileged documents.

As described, the saga involved defendant's counsel first negotiating a clawback provision [this is something that should be SOP for everyone involved in large document productions - it is a money saver and a tremendous protective shield] but then deciding that they could review the documents and produce them without one [why they didn't do both is beyond me].  They purportedly did key word searches and somehow their searches failed to alert them to the 165 documents that were inadvertently produced.

The district court, quite rightly, held that this was not excusable inadvertence and held that they had waived their privilege.

Maybe defendant's counsel could have presented a fuller record as to how they were diligent, but the short of this is that - you can go out and pay big bucks to e-discovery software companies or pay for an additional layer of supposed e-discovery lawyers [every large firm seems to be creating one] in addition to your litigation counsel or you can do some simple things - like always demanding a clawback agreement.

Such an agreement provides that regardless of the question of inadvertence and whether it was excusable or not,  production of privilege material will not be waived if it comes to the attention of producing counsel that a privileged document has been produced and they timely request its return.  How simple can that be?  You are protected from your opponent ever introducing privileged materials that for whatever reason you fail to intercept in your initial production.

Finally, if you want to nip production of privileged documents in the bud actual review of the documents is a must - key word searches and expensive discovery software systems just don't cut it.  The case is Victor Stanley, Inc. v. Creative Pipe, Inc., et al., Case No. MJG-06-2662 (D. Md.) by the way.

ARE WE LAWYERS OR MBAs?

Click here to read an article that to me reflects much about the problems that confront our profession and the clients we serve. It discusses how a mega rainmaking litigation partner - purportedly bringing in $60 million in billings per year and the highest paid partner earning $5.75 million last year - was leaving  DLA  Piper to go in-house at Pfizer.  Those numbers were pretty impressive, so I decided to look at her bio.

My expectation was that she was an uber trial lawyer that attracted clients because of her stellar in court skills.  That may be the case, but if you read her bio you wouldn't know it. 

The bio is extensive.  It details all of the cases that she has "coordinated" and all the litigation teams that she has lead.   In its own right, it is quite impressive.  But not one mention of ever having been involved in the trial of a case let alone successfully trying a case.  The impression one gets is that she is a skilled case coordinator, legal strategist and leader of litigation teams. Click here if you want to read it.

Now I understand that defense lawyer's objectives are, quite rightly, to avoid trial at all costs and that as a result in some ways it is a badge of dishonor if you have to try a lot cases as a defense lawyer.  Perhaps Ms. Schulman has tried her fair share of cases and just didn't want to tout this in her bio.  But I doubt it.  Anyone who has tried and won cases before juries or judges would insist on this being included in their bio.  They are career benchmarks for true litigators/trial lawyers.

She is not the only one who I have seen with such a bio.  The managing litigation partner from a major firm who headed up the defense of a substantial antitrust matter that I recently litigated had a similar bio - touting all the cases he had successfully managed but not one mention of having ever tried a case.

Whether they have or have not tried cases is almost irrelevant, because the real question is where is the profession going when the people who lead litigation litigation matters tout their ability to "coordinate" large litigation teams rather than their abilities as in court lawyers?

My guess is that more and more litigation partners in large firms are no longer getting any trial experience because less and less cases get tried these days and, of course, throughout their developmental years success is measured in getting cases dismissed before trial.  So as they rise to the top of these firms, litigators' bios have morphed to touting "case management" skills.

Moreover,  this professed expertise in supposedly managing  large litigation teams is a canard. As I have repeatedly stated in this blog and in my published articles - large litigation team means a bloated inefficient and costly litigation team.  You want someone to efficiently manage a litigation matter? Get people who have litigated in the trenches and tried cases.  All the rest is expensive feel good fluff.

Those who know how to try cases are still the best at developing and implementing the best strategies for cases big and small.  The fact that the highest paid lawyer in the largest firm in the country either doesn't have this experience or consciously chooses to not tout her trial experience says more about where things have gone these days - at least in the big firms.

In-house counsel wail about litigation costs and the unreliability of our civil justice system.  Yet they only have themselves to blame when they swallow this "case management"  PR.  Sure the complex litigators clients hire should have the skills to manage big cases.  But the only way to really do this is to work in the trenches and actually try some big cases.  Without such experience one has no idea what is actually involved. Thus, clients would do better to hire lawyers who can and do tout their in-court prowess and not those who tout their case management skills.  The former is the best path to the latter.