The Trial Practice Tips Weblog

This Year's Supplement to My Deposition Book: A Chapter on Breach of Contract

I've almost finished writing this year's supplement to my deposition book, Deposition Checklists and Strategies (James Publishing). This year I'll be adding a new, ninth chapter on breach of contract. It should be out in a few months.

The first eight chapters are these:

• Procedures and Strategies
• Vehicular Liability
• Premises Liability
• Products Liability
• Medical Malpractice
• Employment Cases
• Insurance Disputes
• Consumer Protection

For more information about the book, follow the link to my publisher's website.

Civility and Litigation

There's a good article about civility in this month's Illinois Bar Journal: "Uncivil Action," by Helen W. Gunnarsson.

Some tips from the lawyers interviewed for the article:

• It's a waste of time to try to outbully a bully; make a decision not to respond to incivility with incivility;
• You can't reform the small percentage of lawyers who use incivility as a litigation tool; those lawyers, though, will become known for their incivility, which will tend to make it harder for their strategy to work;
• Your own bad behavior will come back to bite you; always treat people with courtesy, even when they're inept at doing it themselves.

Here's my own tip: get more sleep. In my experience, many of the ugly outbursts I've witnessed at depositions, which often lead to apologies later, are caused by stress exacerbated by lack of sleep.

Don't Alienate the Judge

When dealing with the judge at trial, try your obsequious best never to show any hint of irritation or disrespect.

That's the advice of Martin L. Grayson, who writes in his excellent, readable book The View from the First Chair: What Every Trial Lawyer Really Needs to Know:

In my opinion, one of the biggest mistakes an attorney can make is alienating the judge. You will put yourself and your client at risk of losing every close call, having every request for continuance or extension of discovery procedures summarily denied and, worst of all, having the judge signal the jury at trial that you are not trustworthy.

Good advice.

Preparing Experts for Depositions: Tips

When preparing experts for depositions, consider giving them these tips: 

• When asked about an unfamiliar document, review it thoroughly before answering questions.
• Don't argue with the questioner--and don't joke either.  
• Don't answer a question unless you're certain you understand it.
• If you're asked the same question question twice during a deposition, make sure your answers are consistent.

For more ideas like these, see Expert Preparation, by Christian C. Mester, Trial May 2010.

The tips in this post are derived from Mester's article, which focuses specifically on preparing med-mal experts for their depositions.

Facebook and Discovery

From Law Technology News: "How Facebook Can Make or Break Your Case," by Eric B. Meyer--

The first thing I do after I receive a copy of an employee-filed complaint -- before I read the complaint -- is check the plaintiff-employee out on Facebook and other social networking sites.

I print any information that employee has made publicly available. I save any pictures the employee has published online and I send a list of the employee's friends to my employer-client to cross-check against a list of current and former employees. I do this because, generally, a Facebook user will allow friends greater access to online content.

According to Meyer, "If your client is sued by an individual and you are not harnessing the power of social media as part of your litigation strategy, you're making a BIG mistake." (Link from Future Lawyer.)

Under Consideration: Changes to Illinois Discovery Rules

From Illinois Lawyer Now: "Supreme Court rules committee to hold public hearing on civil discovery proposals"--

The Rules Committee of the Illinois Supreme Court will hear comments at a public hearing on Wednesday, July 28 on three proposals dealing with discovery issues in civil cases.

The hearing is scheduled to be held at 10 a.m., 160N. LaSalle Street, Room C-500 in Chicago.

The first proposal would allow the use, in very limited circumstances, of a party's discovery deposition at trial. The second would allow a lawyer to take a deposition by electronic means (e.g., phone, video) without a court order or consent of the opposing party. The third would allow lawyers to issue subpoenas in civil actions.

There is further information about the proposals and public hearing at the Supreme Court's website.

Blog Resources: Class Action

Here are some of the class-action-related blogs I read regularly, from both plaintiff and defense lawyers--

• Class Action Defense Blog
• Consumer Class Actions and Mass Torts
• Class Action Blog
• Class Action Defense Strategy Blog
• David Sugerman
• CAFA Law Blog
• ClassActionBlawg.com

If you want to keep up on the latest class-action news and decisions, all are recommended.

Update on Free Fastcase App

From Jeff Richardson at iPhone J.D.:  "Improved Fastcase for iPad, iPhone"-- 

I've raved in the past about Fastcase, a must-have app for any lawyer using an iPhone. The app allows you to search and access caselaw and statutes on your iPhone, for free. Up until now, you could use the app on an iPad in expanded screen mode, but today Fastcase is releasing a new version of the app that runs natively on the iPad to take full advantage of the large screen and which also runs even better on the iPhone.

As of this moment, the new version of the Fastcase application isn't up at the iTunes App Store, but it should be soon. 

Related post: "Fastcase: Free Research for the iPhone."

Reader Input: Send Your Suggestions

As always, readers are welcome to email me with suggestions for topics to cover at The Trial Practice Tips Weblog.

Something new that I should cover? Deposition tips? Trial pointers?

Email me at eschaeffer -at- riverbendlaw.com

For Trial: A Simple Presentation Program

Trial Fusion claims to bring "the speed and accuracy of barcode technology to your trial."

In a review at the Trial Presentation Blog, Charles Perez calls Trial Fusion "a simple, yet affordable, method to simplify an otherwise daunting task."

Legal Writing: Writing Bad Briefs

From the Journal of the New York State Bar Association: "Writing Bad Briefs: How to Lose a Case in 100 Pages or More," by Judge Gerald Lebovits. (Link from the (new) legal writer.)

The Zen of Trial Practice

Here's a novel idea for lawyers from a new law blog, Seattle Zen Legal Blog: "Thou Shalt Not Be a Pompous Ass"--

As an attorney I work on treating all people with dignity and respect. This is the right thing to do. Sadly there are lawyers who are over impressed with themselves. These lawyers talk down to others or appear not to have time for the problems of little people. Well we never know who we are helping, and since we have chosen to be a lawyer, we have an obligation to help others when we are able.

The blog's author is Pat Trudell. On his blog, you can also read posts like "Beyond the Reptilian Brain" and "Personal Injury as Tragedy."

Hundreds of Deposition Tips

You'll find hundreds of deposition tips in this weblog "deposition" category. 

Once you've exhausted these, consider my book Deposition Checklists and Strategies (James Publishing, 2006, updated yearly).

Good luck at your next deposition!

Experts: Attacking for Bias

A post at Paul Luvera's Plaintiff Trial Lawyer Tips titled "Attacking the Expert for Bias" is "a simple check list of reminders" of bias-related topics to ask at the expert's deposition.

These topics include--

• Advertising for Work
• Experience as an Expert
• Fees Charges
• Income from Expert Work
• Tort Reform Activity
• Witness Consultant
• Definitions Used in Arriving at Opinions

Though written by a plaintiffs' lawyer, the post might also be of interest to defense lawyers.

Advice for New Lawyers

At Dorf on Law, Ori J. Herstein has written a useful and entertaining post titled "Advice to the New Junior Associate in Big Law." It's full of good practical advice, like this bit of wisdom on the role of partners--

Partners like to feel that they and their work are of grave importance. Let them. In many ways associates function as a mirror for generating a flattering reflection, a sounding board for ideas and venting, and a sponge to absorb frustrations. It’s just how it is.

There's much more in the full post.

iPad Roundup

Confession: Although I know plenty about lawyers and their shiny new gadgets, I don't have an iPad myself. When I tried one out at Best Buy, it just seemed too heavy and hard to handle, especially when I'm used to reading from my iPhone for hours at a time. I'll probably change my mind eventually (and this cover with a handstrap might mean sooner rather than later). For now, though, no.

Meanwhile, there's been lots of discussion about the ways lawyers can use iPads. Here are a few sources for your consideration:

• Post: "Is the Apple iPad the Tipping Point? Practicing Law in the Cloud Goes Mainstream in 2010," at Reid My Blog!
• Post: "The 3 stages of iPad infatuation OR How to justify buying an iPad to your business manager," at Stasiuk Firm PC
• Blog: Legal iPad: the iPad Blog for Lawyers & Business Professionals
• Blog: Tablet Legal

In addition, Jeff Richardson at iPhone J.D.has added iPad coverage to his blog.

Detecting Liars: A New Method?

From Wired Science: "Lie-Detection Brain Scan Could Be Used in Court for First Time"--

A Brooklyn attorney hopes to break new ground this week when he offers a brain scan as evidence that a key witness in a civil trial is telling the truth, Wired.com has learned.

If the fMRI scan is admitted, it would be a legal first in the United States and could have major consequences for the future of neuroscience in court.

It seems unlikely such a scan would be admissible. There are still plenty of low-tech methods of exposing liars, however--see this article at Psychology Today: "Top 10 Secrets of Effective Liars."

Related posts:

1. "Deposition Tip: Help with Sniffing Out the Liars"

2. "Tip for Spotting Liars: Ask for the Story in Reverse"

Where You'll Find the Experts

Looking for an expert witness? Start by looking at nearby universities. In his book, The View from the First Chair, Martin L. Grayson shares this anecdote--

The last time I needed a toxicologist on a case I was handling, I called the Department of Chemistry at UCLA, the biggest university campus in my area. I spoke to a professor there, and after describing the issue, he didn't hesitate to refer me to a colleague across town at USC whose research focused on the exact chemicals in the exposure case I was defending.

It's good advice. Most professors are skilled at explaining difficult subjects to laypersons, which is exactly what you want in an expert witness. If you take the alternative route of relying on one of those ubiquitous expert mills, you run the risk of hiring an expert who can be easily branded by your opponent as being nothing but a hired gun.

Related post: "Book Recommendation: The View from the First Chair."

If You'd Like a Bit of Humor

Here's a new site: Overheard in Court, which is open to submissions from its reader. The creators say on the homepage--

This site is dedicated to the memory of Judge Buchmeyer and his long running, much loved, column in The Texas Bar Journal. We chronicle the often hilarious world of courtroom antics for everyone's enjoyment. Did you hear something funny while you were in court or elsewhere traversing the legal world?

The site is very well done. Take a look. There's a contest going on now that runs through June 15. 1st prize: $150.

Technology Without the Hype

At My Law License, Brian Tannebaum isn't buying into the iPad hype. In his post, "The Technology Curmudgeon Gives His Technology Secrets," Tannebaum summarizes his firm's set-up--

In my office is a telephone. My receptionist also has one, and so does my secretary. So do the 3 other lawyers in my office and the other support staff. This is how clients normally reach me. In a very non-techy way, my clients, mostly lawyers, law students, and alleged criminals, like to be pretty traditional and come to my office and meet with me. They’re not real big on video conferencing, email, or Starbucks.

There's more about the good-old-days of legal tech in the full post.

Related posts (from my other weblog)--

1. "Types of Lawyers #16: The Lawyer with the Shiny New Gadget"

2. "Is TheBarAfterWork a Valuable Networking Tool or Just for the Drunks?"