What About Clients?

August 25, 2008

Patrick Lamb: Budgeting litigation with the client.

[E]veryone can provide a budget. Everyone can live with a budget. The real questions are whether lawyers will agree to do so and whether clients will walk with their wallets when lawyers don't.

See Pat Lamb's short but fine piece on budgeting litigation costs with a client, a subject Hull McGuire is always re-thinking but infrequently getting right. "The Lie of Litigation Budgeting" is at his enduring and respected In Search of Perfect Client Service--the site which inspired the launch of WAC? three years ago. Pat, one the few litigators I've known with a natural gift for law firm economics, started the Valorem firm in Chicago earlier this year.

Posted by JD Hull at 11:59 PM | Comments (1)

August 06, 2008

Thucydides on litigation budgets.

War is the last of all things to go according to schedule.

--Thucydides (c.460 BC-400 BC), The History of the Pelopenessian War

Posted by Holden Oliver at 11:23 PM | Comments (0)

August 04, 2008

Don't popularly elect judges. It's bad.

Even if all elected judges were honest, judicial elections naturally erode public confidence because they imply that judges have "constituents" (i.e., the entities and lawyers who contribute to their campaigns) and that justice is political, and may be purchased. It doesn't pass anyone's smell test. In a country with the best law schools in the world and with legions of truly talented lawyers, who believe that lawyering is a privilege and art, we can do better than that. --A blogger in 2005

There aren't many absolutes out there, but here's one: Judges should not be elected public officials. It's medieval. It's beneath all the U.S. states. It's bad for clients and good lawyers. And it just smells bad. See at Law.com "Recusal Fight Highlights Judicial Election Concerns" and our April 28 piece "The Elected Judiciary". We can do better.

Posted by JD Hull at 11:50 PM | Comments (0)

July 24, 2008

If a juror claps during closing argument, what result?

Excuse the exuberant juror, declare a mistrial, do better voir dire, or hire the applause getter? At Deliberations, see "What Is The Sound Of One Juror Clapping?" The spectacularly unpersuasive (my view) California appellate opinion which prompted Anne Reed's post is here.

Posted by JD Hull at 12:37 AM | Comments (0)

July 21, 2008

Two Ways of the Trial Notebook

Outlines for Notebooks One and Two at Evan Schaeffer's Illinois Trial Practice.

Posted by JD Hull at 10:38 PM | Comments (0)

July 19, 2008

Radio Free Paris, Part 1 of 2: The ICC's International Court of Arbitration

On July 11, in-house GE lawyer Mike McIlwrath interviewed Senior Case Worker Francesca Mazza at the Paris-based International Chamber of Commerce’s International Court of Arbitration in his weekly radio show for CPR, The International Institute for Conflict Prevention & Resolution. Hear Part I of II. Since 1999, the ICC's Court of Arbitration has handled about 500 cases a year. It has branches in Tunisia, Panama, the UK and the United States. Learn how ICC case management works, and how to get the most out of a proceeding before the Court.

Posted by Holden Oliver at 11:50 PM | Comments (0)

July 03, 2008

"At what price glory?" The lure of ADR in a down economy.

An "easy-to-win" business suit against your client defended by the most efficient defense counsel on earth can have defense fees well over $100,000, even with minimal or no discovery.

It's a good time for business clients to push for ADR (including mediation) over litigation. Not because ADR is cheaper, faster and better--sometimes it's clearly not--but because the cases you defend in a struggling economy are often more marginal from a merits standpoint. And that's exactly where ADR can really help--even you don't love ADR, or you were trained for full-blown trials.

Say you've just been handed a case to defend in an American court that is highly questionable and insubstantial. A weak employment discrimination or wrongful discharge action (the "un-classy firing" suit). Or a flimsy business case dressed up as an unfair competition or infringement action (the "it's-weak-but-let's-see-what-happens" suit). Down-on-their-luck David & Son, with hungry counsel, v. Flatfooted Goliath, Inc., your client and a deep pocket.

The stars seem to be aligned in Goliath's favor.

Not only does your client Goliath have more resources, and the case filed against it is transparently contrived and weak, you are assigned to a real judge. Your firm is before a scholarly, honest, sane jurist, with people sense, and loved by all. Your research suggests that the judge is business-savvy in rulings, and takes a dim view of iffy cases.

So you think you will win your case on a dispositive motion (and you do, eventually). You are right on the merits--and any law professor in the U.S. would agree with you. The "case" your long-time GC just handed you is silly, right? And a piece of cake. Beneath you, you tell yourself. An "easy win", right?

Well, think again, Skippy.

Your GC couldn't have hired you to do anything more difficult. "Winning" just took on a new and more complicated meaning. Because now--especially if you were just handed a defense counsel's dream and stone "winner" of a case--you will have to work harder, and be smarter, than if you were defending a good faith or meritorious suit in which your client had the lion's share of bad facts. The trick now is to win cheap*. An easy-to-win business suit handled by the most efficient defense counsel on earth can have defense fees and costs well over $100,000, even with minimal or no discovery. You really think that your GC or client rep will be happy the day you tell him or her about your great win on all counts based on your brilliant Rule 12(b)(6) or Rule 56 motion?

Don't bet on it. For the experienced client, the cost of the lawsuit is part of the "victory" analysis. In a down American economy, litigation tends to increase. More suits are filed. And in my view clients and their plaintiff's lawyers file more questionable suits, i.e., ranging from Rule 11 violations and frivolous to iffy and wasteful. Employee and business nuisance cases are a big chunk of those filings.

A good arbitration panel or mediator will cut to the quality of the suit and its likelihood of success quicker than even the best American judges, who often feel obligated to give bad and iffy cases a wide berth. And good judges understand the problems of the business community and the utility of arbitration and mediation. Get jurists on your side in your attempt to drive iffy cases into ADR.

*GCs would rather have "no lawsuit" than a great case or defense.

Posted by JD Hull at 11:59 PM | Comments (2)

July 02, 2008

Help, I'm a rock.

Left brain, right brain, stale brain, jury work. In the first semester, and not gradually, you lose some of your command of the English language. The verbal agility and fired imagination that got you through your Reynolds Price course in college is gone. Next, you notice that your creativity is, somehow, inhibited. But you do start thinking in a linear and more Western-logic way. And you learn, as a law student, to think about something that is inextricably attached to something else without thinking about the thing to which it is attached. That's the idea, the prize. But something is lost. In a few years you start writing documents that begin "COMES NOW, oye oye, by and through XYZ law firm, Upstart, Inc., which avers, somewhat obsequiously, to his Honorable Court, the following, which..." when just "Upstart, Inc. states" would suffice. You think it's normal. You notice that, for years now, you have argued, rather than listened, in conversations. You are now a prisoner of your goals. Read Anne Reed's post "Stop Thinking Like A Lawyer!" at her challenging Deliberations.

Posted by JD Hull at 11:59 PM | Comments (0)

June 24, 2008

Race in jury selection.

In juries, mock juries, focus groups and polls, Americans and other humans are complicated, and hard to know. See Anne Reed's new article "It's About Race. It's Not About Race." at Deliberations.

Posted by JD Hull at 11:59 PM | Comments (0)

June 13, 2008

Bad week for a great judge.

Alex Kozinski, Chief Judge of the U.S. 9th Circuit Court of Appeals. See in the Los Angeles Times "Alex Kozinski Suspends L.A. Obscenity Trial After Conceding His Website Had Sexual Images" (783 comments so far) and Scott Greenfield's Simple Justice. Talented and even gifted people who occasionally collect porn and/or jokes? I never think less of them. I just don't always get them. Such folks usually excel at having magical encounters with real humans, and their uncommon wit permits them to fire off their own jokes. However, I do think that a guy as smart and as celebrated as Judge Kozinski doesn't get any points for letting this happen to him. That does matter. Sir, I may have to appear before you some day. I'm in your corner. I admire ability and achievement. People talk of you in language that glows. But could you have managed this differently?

Posted by JD Hull at 12:48 AM | Comments (0)

June 09, 2008

Jurywork: The eyes have it.

Anne Reed at Deliberations quickly has become a triple-threat, as she regularly has done the impossible: make bloggers, lawyers and jury consultants all look good, even productive and excellent. At WAC? and Hull McGuire we'd just about given up on all three. We were turning our eye to more reputable and productive professions--like insurance adjusters, call girls, and circus barkers. Anne gave us not only pause, but even undeserved redemption. Deliberations is truly insightful, immediately useful and challenging in all the best ways. If you try cases, and you think about the art-science of The Jury, see "When They Look Away", and be prepared for a surprise. It begins:

Your expert is on the stand presenting her analysis of lost profits damages, or whether an unintelligible patent claim was infringed. As she's explaining the most difficult part, you look at the jury, and your heart sinks; no one is looking at her. They're contemplating the ceiling, studying the floor, looking away.

Posted by JD Hull at 11:59 PM | Comments (0)

June 03, 2008

No way to go out: Mel Weiss gets 30 months.

Both Scott Greenfield at Simple Justice and the WSJ's Law Blog alerted us to Weiss's sentencing. It's sad, and not an occasion to gloat, even if our clients and we are no lovers of the Rule 23 bar. The talented and accomplished Weiss is 72. Back in September, we reacted to the Mel Weiss indictment, and to the gulity plea of his former partner Bill Lerach a few days earlier that week.

Posted by Holden Oliver at 05:01 PM | Comments (0)

June 02, 2008

Ruthie muses on War and Peace; has tea with GeekLawyer.

London's warrior-solicitor Ruthie writes "Litigation: it’s all about the fight". And she drops in for a spot of tea and a podcast with evil un-kempt barrister GeekLawyer who, disturbingly enough, hosts Blawg Review on June 30 in time to opine about Independence Day on July 4 in America. The podcast: learn about the Ruthie-GL split. Required listening for the bored and the deranged. However, associates and summer clerks may defer listening until weekend.

Posted by JD Hull at 11:59 PM | Comments (0)

May 18, 2008

How did Humans first start resolving the Fist Fights of Life?

The International Institute for Conflict Prevention & Resolution (CPR), International Dispute Negotiation program (IDN): Interview with American cultural anthropologist Robert Carneiro.

Ten thousand years ago, how did humans first go about developing formal methods of resolving disputes--and why did they do it in the first place? Listen to IDN's latest podcast interview by General Electric's Florence, Italy-based litigation counsel Mike McIlwrath. This is Mike's 26th interview with the best and brightest of the litigation-ADR international community, including U.S. trial lawyers with higher-end business clients. Not one program has disappointed us.

This week, Mike interviews respected American anthropologist Robert Carneiro on the "Evolution of Dispute Resolution". The Carneiro interview is an especially compelling IDN segment, and rapidly covers: evolution of the state, the orderly introduction of legal systems with formal methods of conflict resolution, dispute resolution in societies that have remained in clusters of small, autonomous groups, and conflict resolution's role in keeping larger groups together and productive.

The IDN segment got us thinking, and worrying. In our view, much business litigation--and in the U.S. especially--is a wasteful ruse of "going through the motions", and outright churning, often in cavalier disregard of both fact and law. Lawyering itself during the litigation process has lapsed into a cynical mix of untruthfulness and laziness. Even many clients think it's business-as-usual to join their lawyers in misusing the system ("the lawyers will tell me what to say" and "they keep telling me not to remember anything"). Suits which easily form the basis for subsequent abuse of process actions are filed every business day of the year.

Is demanding good faith in the good fight too idealistic? Can we at least evolve that much? One small step further? Litigation and ADR all over the world needs to be both streamlined and resistant to processed and packaged falsehood. Both lawyers and judges need to be proactive in making the terrain not only more business-friendly but increasingly economical, fair and honest for all participants, from Microsoft and Coca-Cola to corner shops and street vendors.

Think of it as real truth-finding done efficiently.

Like humans themselves, litigation, ADR and dispute resolution will always be aggressive by its nature and context--as it probably should be. Even sophisticated litigants need to vent. But it should be intelligent and aggressive--not a "game" for and by lawyers. A bloodless but honest war, with prompt starts and quick endings. That goal is still possible, even for American humans and their lost generations of lawyers, in this century. Think about that when you hear Mike's interview with Dr. Carneiro.

Posted by JD Hull at 12:26 AM | Comments (1)

May 06, 2008

John Day: Great trial lawyering.

John Day in Tennessee is a working trial lawyer and writer who respects clients, juries, the profession and lawyering. Since December, he's somehow found time to keep giving us his remarkable series on "What It Takes To Be A Great Trial Lawyer" at his respected site, Day on Torts.

Posted by JD Hull at 11:33 PM | Comments (1)

April 28, 2008

The elected judiciary

The popular election of state judges is a national illness. We Americans are in denial about it. We are so heavily invested in it, and so used to it, that we are even incapable of experiencing the "oh-my-god" embarrassment it ought to cause every day it still exists.

We've mentioned Tocqueville before. If he were alive today, I had argued, Alexis de Tocqueville might very well "like" George W. Bush--as his exemplary American, warts and all. But he would be appalled to learn that 31 of our states still have some form of popular election of judges. The young French author who toured America in 1831 noted that some American states already were in the process of reducing the power and independence of the state judiciary through certain "innovations", and it disturbed him. One was the state legislatures' ability to recall judges. Another:

Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.

from Democracy in America, Vol. I, Part 2, Ch. 8 (Tocqueville's emphasis in some translations).

Since that was written, state judiciary selection in America has remained largely election-based; as a result, elected judges, either trial or appellate level, still appear to have "shadow" constituents in the form of campaign donors. Impartiality is an unspoken issue in countless proceedings. And even first-rate state jurists of the highest character, and with the best academic and workplace credentials, must suffer the taint of that machinery. Some groups like the Philadelphia-based Pennsylvanians for Modern Courts, founded 20 years ago, still soldier on in the wilderness for reform.* Earlier this month, lawyers with NYU Law School's Brennan Center for Justice got high marks for publishing a report of proposed state recusal and disqualification standards**--a 50-page ten-point plan and analysis, both practical and scholarly--for elected judges. Last week, writing about the report, BLT's Tony Mauro in his post "The Recusal Remedy" quoted from the report's foreword. It is by Tom Phillips, a former Texas Supreme Court chief justice (appointed, elected and re-elected between 1988 and 2004), and now Baker Botts partner:

As the authors acknowledge, threats to judicial impartiality and the appearance of impartiality will persist no matter how perfectly a state structures its recusal process. As political pressures on the judiciary mount, most states should consider more fundamental changes to their systems of judicial selection. But until that day, improved recusal procedures are among the most promising incremental reforms.

(emphasis ours)

This blog has made no secret of the fact that we believe that, in the longer term:

(a) judges should never be elected (ever), (b) elected state judges pose dangers to clients which do business in more than one state or nation, (c) the notion that any dispute would be heard and decided by an "elected official" who has received election campaign contributions from some of the lawyers and clients before him is a national embarrassment (especially since these conflicts are rarely disclosed), (d) popularly elected state judges is an institution inconsistent with the fact that business is now done nationally and internationally, with "non-local" parties appearing frequently before American state courts, and (e) justice would be better served if all of the "affected" states reformed their judicial systems to select judges for life on the basis of merit, coupled with an impeachment safeguard.

In the short-term, and as a practical matter, sane and sophisticated business lawyers should bend over backwards to keep their global, multi-jurisdictional clients out of state courts, and before federal courts. We do think that recusal standards make good sense--the Brennan Center report is brilliant, persuasive--but the remedy for us is what Phillips termed the "fundamental changes" in the selection process. That's judicial appointment on a merit basis for life, similar to the federal selection process. No elections. No reelections. Ever.

The popular election of state judges is a national illness. We Americans are "in denial" about it. We are so heavily invested in it, and so used to it, that we are even incapable of experiencing the "oh-my-god" embarrassment it ought to cause us every day it still exists. And here's the rub, and a reason for pessimism: constitutionally, only the States can do anything about it.

*I travel in my work, much of it trial work, and am licensed in four states (DC, CA, MD, PA). Many Pennsylvania trial lawyers I know fall into one of two groups: (1) too caught up in the current judicial election system to validate or acknowledge Pennsylvanians for Modern Courts' existence; (2) too paranoid to even talk about PMC.

**James Sample, David, Pozen, Michael Young, "Fair Courts: Setting Recusal Standards", Brennan Center for Justice at New York University School of Law (April 2008).

Posted by JD Hull at 06:24 PM | Comments (0)

April 24, 2008

Clueless closings, goofy charts and other screw-ups.

See "Lawyers: So Certain, So Wrong" at Anne Reed's Deliberations, a site about jury work. This piece also underscores the value of the mock trial--and of identifying lame language, arguments and themes in advance of actual trial.

Posted by Holden Oliver at 11:59 PM | Comments (0)

April 22, 2008

Recusal standards for state jurists

Thirty-one states in America still hold popular elections of judges. WAC? would be happy if elected state judges--with their shadow constituencies of campaign money-contributing companies and lawyers--could just adhere to the disqualification rules already in place. But many don't. Popular election of state judges is medieval and embarrassing--and so we like Tony Mauro's Law.com piece "A New Call for Tougher Recusal Standards". It begins:

With state judicial elections getting more costly and raucous, many organizations are voicing concern about how to preserve--or restore-- the independence and integrity of state court systems. When judicial candidates accept campaign donations or make campaign pronouncements that might affect their impartiality in future cases, what can be done?

Posted by Brooke Powell at 11:59 PM | Comments (0)

April 16, 2008

Cross-examination: criminal v. civil.

They are two different worlds. Chicago's Stewart Weltman explains at his Lean and Mean Litigation blog.

Posted by JD Hull at 11:59 PM | Comments (2)

Why ever mediate?

For some answers, see Justin Patten's Human Law Mediation. It took our firm--and me--a long time to figure it out: paying a hard-working mediator to deliver a reality check to all sides is the best settlement device out there. It stifles the testosterone for a few hours, and forces reflection. Helps your client rep/GC and you with your inevitable "Kool-Aid" problems*, too. If something can settle at all, a good mediator will get that done. It is well worth the money spent. If it still tries, you try a more efficient case.

*Believing and thinking for whatever reasons that your court case is better than it actually is.

Posted by JD Hull at 12:09 PM | Comments (2)

April 10, 2008

Rule 30, tool-sharpening and Tennessee.

While we're on the subject, and as WAC? spends the next few days discovering great legal minds in the state of Tennessee, hear three podcasts on advanced deposition techniques by Evan Schaeffer at his enduring Illinois Trial Practice blog.

Posted by Holden Oliver at 11:59 PM | Comments (0)

Depositions: Fire, fall back, savour the badness.

A deposition is the time to get the bad news out... This is the time to invite the other side's witnesses to tell you everything they possibly can about why your side should lose. Revel in these "bad" answers - don't cringe.

From Stewart Weltman's recent piece "The Two Most Important Questions to Ask During A Discovery Deposition".

Posted by JD Hull at 11:59 PM | Comments (0)

April 07, 2008

"Future of Arbitration"

See post by John Phillips on the Supreme Court's March 25 decision in Hall Street Associates v. Mattel, Inc. Phillips excerpt: "The problem was that the scope of judicial review permitted by this agreement was greater than that provided by the Federal Arbitration Act".

Posted by JD Hull at 01:09 PM | Comments (0)

April 03, 2008

Lawyer "professionalism" is still a crock.

Like work-life balance, lawyer "professionalism" as touted and practiced in the U.S. is an anti-client, lawyer-centric ruse which needs to die before it can be re-born. It is disingenuous and a crock. It's a license for mediocrity, cooked up and maintained by lawyers who think law is a special club for special people. It has one or two redeeming features (i.e., when civility actually helps to get things done), which are generally outweighed by its abuses and sheer silliness. Hint: what does your client/GC want and need? Start there. See the more PC version of our view which passed muster with the overly-polite San Diego media in our world-famous 2005 article, "Professionalism Revisited: What About the Client?"

Posted by JD Hull at 12:00 AM | Comments (1)

April 02, 2008

More on punitives: Europe v. America

See NYC trial lawyer-thinker (you don't always see both in one human) Eric Turkewitz's piece Punitive Damages: Why America is Different than Europe. Here's an excerpt, but read the whole piece:

European governments...are significantly more interventionist in the private lives of the people than here. You see that in nations that restrict free speech or grant universal health care, as two examples. Our notions of freedom are not always the same as elsewhere... Intervention [in the non-U.S.] means not only larger government with larger powers. It also means higher taxes to pay for it. So wrongdoing is handled by the government, which the people pay for.

Posted by JD Hull at 11:30 PM | Comments (1)

March 31, 2008

Do you really need to take that deposition?

As a companion piece to an earlier WAC? post, "Informal Discovery", see at Stewart Weltman's Lean and Mean Litigation Blog "Deciding Who to Depose (Part I)".

Posted by JD Hull at 11:59 PM | Comments (0)

March 27, 2008

Non-U.S. clients, non-U.S. courts--and punitive damages.

Many clients from Europe loathe and avoid U.S. courts, especially state courts. They prefer arbitration panels, even when arbitration itself threatens to be trial-like and lengthy. The expensive and drawn-out American court litigation process and its hefty jury awards--which often include a huge punitive damages component--is feared. And foreign courts, when faced with enforcing American punitive awards, are just as skittish. At the same time, some countries are starting to experiment with punitives, a mutant and now barely recognizable creature of American and English common law. See in yesterday's NYT "Foreign Courts Wary of U.S. Punitive Damages".

Posted by JD Hull at 11:59 PM | Comments (2)

March 21, 2008

Left Bank litigation redux

Our post from one year ago today:

Ile St Louis: U.S. litigation conducted from Left Bank?

And why not? Law is no longer local--and neither is the apparatus for doing it. Besides, the technology helps clients.

A happy fellow under the Gargoyles this evening, I was not a free man this morning and afternoon. I was in the Munich airport getting ready to come here, Paris--and do nothing but be here--when I was confronted by cell phone with the mother of all goofy plaintiff junk science issues by Tom Welshonce in our Pittsburgh office on an action we're defending. Look, I'm not a tech-freak. I like quill pens, old books and medieval places, and don't think your PalmPilot is the same thing as your brain. But I'll admit that the Internet, electronic court filing, cell phones, e-mail, faxes, Skype and the right people permit you to quickly and efficiently file an emergency pleading in New Jersey, Kentucky or the UK from anywhere in the world. Even from here.

Posted by JD Hull at 11:50 PM | Comments (0)

March 08, 2008

Stewart Weltman: Lean, mean, worth reading and watching.

Re: our SLM (Federal Courts) series, see Stewart Weltman's Lean and Mean Litigation and a piece on a subject of interest to us: discovery done right, which good judges and their clerks don't always have a perfect handle on. We'd have proudly put our name to this post, "Another Reason Why You Shouldn't Play Games When Producing Documents". It reflects the broad and liberal precept of Rule 26, Fed. R. Civ. P. (and state counterparts), withholding information on relevancy grounds (generally, a bad idea and even notion), and the "dicey" problem of redaction. Note the boomerang graphic, folks.

Posted by JD Hull at 11:59 PM | Comments (0)

March 03, 2008

Your business client is a defendant in a state court.

And the client is wary of state courts. So consider removal to a federal court under 28 USC 1441, "Actions removable generally". More cases are removable than you might think. For removal based on diversity, generally it's either there or not there from the face of the complaint. Federal question removals are trickier. You can be creative--but do see Rule 11. Think and act quickly; there are deadlines.

Posted by JD Hull at 11:59 PM | Comments (0)

February 23, 2008

Maintenance: The Blue Book

See "Cite-checking, dudes". This is your document. This is your document on drugs.

Posted by JD Hull at 11:59 PM | Comments (0)

February 21, 2008

Article VI Fever: Got my judicial mojo workin'.

Four SCOTUS opinions with preemption threads yesterday. See at Legal Blog Watch "Preemption-Mania at the Supreme Court".

Posted by Holden Oliver at 12:58 AM | Comments (0)

February 15, 2008

Redux: Slick Answers to Lazy Interrogatories.

Color me silly, but I love and respect written discovery during the pretrial process in American federal courts. Years ago, a fed-up U.S. district court judge, throwing up his hands during arguments by lawyers on a motion to compel discovery responses, referred to answers to interrogatories as "slick lawyer answers to lazy lawyer questions".

I feel his pain.

Once a new second year associate who worked briefly for our firm (after one year at another firm) complained that we were putting too much thought into a set of interrogatories under Rule 33, Fed. R. Civ. P. Our new hire patiently explained to me that interrogatories and other written discovery were in fact "simply a way for lawyers to bill time so they could make money, and nothing more." He was adamant about it, too.

Nice guy, and I liked him--I always try to take his cab when I'm in Pittsburgh.

But complex and hard-fought civil cases really do turn about 90 per cent on the quality of the discovery questions and requests, including deposition questions, and the responses to them. And well-thought out and strategically-timed written discovery is the best way there is to prepare great depositions--and get ready for trial.

JDH

Posted by Holden Oliver at 11:00 PM | Comments (2)

February 07, 2008

Duke University hires former DOJ boss/DC bar president Gorelick to defend in lacrosse civil suit.

No, it's not over--it just fell off the media's radar. From the Duke daily Chronicle:

DURHAM, NC--Duke has hired former U.S. deputy attorney general Jamie Gorelick to assist in the defense against the federal civil rights lawsuit filed by three unindicted members of the 2005-2006 men's lacrosse team, University officials confirmed Wednesday. [more]

Posted by JD Hull at 11:59 PM | Comments (0)

January 11, 2008

"First, it's jaywalking. Next, the ascots. And then hard drugs."

Until now, getting weird in Milwaukee was wearing a trench coat, a bow-tie and tassled loafers--all on the same day. But some guys just push the envelope. They learn, the hard way, that there's just no room for sartorial anarchy in the good German mind. The ABA Journal's Daily News notes that this really happened in Milwaukee, a German-American city which, just like WAC?'s beloved Cincinnati, is not known for anything too different or "way out" in white collar life: "Judge Fit to Be Tied Over Ascot-Wearing Lawyer". Brilliant header, color choice.

Posted by Holden Oliver at 08:50 PM | Comments (1)

"Unprofessional: Wimpy Local Counsel"

From WAC?'s archives, it's here.

Posted by Holden Oliver at 12:00 AM | Comments (0)

December 28, 2007

Television, clients, real lawyering and real life.

Are clients, jurors, and even lawyers and judges watching a little too much Lawyer TV? Here's a gem we almost missed by practicing lawyer-journalist Craig Williams at his highly regarded May It Please the Court. Also a commercial trial lawyer, Craig spends lots of time in court. See "Boston Legal Syndrome Creeps Into The Courtroom".

Posted by JD Hull at 12:00 AM | Comments (0)

December 21, 2007

Business litigation as a lose-lose proposition.

Litigators and trial lawyers are like nuclear warheads; everyone has to have them. But once you start using them, things get expensive, disrupted and screwed up, even when you're winning every battle.

Litigators know this better than anyone. Hull McGuire does commercial litigation, lots of it, and we love doing it. But even in the best of cases, no one ever "wins". Like war itself, commercial litigation is a last resort, and an inefficient way to resolve virtually any dispute.

Holden Oliver, November 7, 2007

Posted by JD Hull at 11:10 AM | Comments (0)

December 15, 2007

Fancy Texas litigators in The Hague discuss global ADR.

And you thought those guys never left Houston. Listen to this interview of three fine lawyers by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure-Oil & Gas, who is based in Florence, Italy. This is podcast No. 6 in the International Dispute Negotiation (IDN) series of The International Institute for Conflict Prevention & Resolution (CPR).

Posted by Holden Oliver at 11:59 PM | Comments (0)

December 07, 2007

Depositions: "Stop me before I coach again."

For litigators/trial lawyers, from Evan Schaeffer's fine and enduring Illinois Trial Practice Weblog, see "Depositions: How to Stop Coaching". We could go on and on about this but--well, just be quiet and read it.

Posted by Holden Oliver at 08:00 PM | Comments (0)

November 24, 2007

Patriotism, conflicts and high-profile trial blunders.

Midwest-raised WAC? is quite patriotic--as American as apple pie, baseball, moral pretension and land grabs. And even though patriotism has limitations as a system of thought, since early 2003 (U.S. making noises about invading Iraq, and finally does that) I have "defended America" at dinner parties, meetings, hotel lobbies and restaurants in London, Aldeburgh, Paris, Kandel, Mainz, Frankfurt, Heidelberg, Dusseldorf, Berlin and Barcelona. Until late 2003, my rule for ground travel was this: rented cars in UK, Germany and Austria; trains everywhere else. That had always made sense. But trains, no matter where I went in 2003, became a problem. In April 2003, a half dozen chain-smoking French boarding school students once cross-examined me on a train from Paris to London, causing me to start smoking again. In the late summer of 2003, an inebriated

Hungarian guy twice my size in the bar car as we were nearing Budapest (he claimed I was an American "bombardier") tried to pick a fist-fight with me--but apparently settled for putting a hex on me and mine. A week later, a Prague massage lady swore at me in a decent-looking non-goofy Marriott near the Charles Bridge, but at least it wasn't on a train.

So I love my country--and have taken to renting cars in Europe in countries other than the UK and Germany. However, and as we've noticed since 2005, the Canadian Bar Association's CBA PracticeLink has a client service and real lawyering-oriented website which puts counterpart sites by bar associations here in the U.S., well, to shame. For examples, see "Developing a Conflict Checking System for Your Law Firm" by Janice Mucalov, and "Top Five High-Profile Trial Blunders and How to Avoid Them in Your Own Practice" by Ted Brooks. Don't worry that it's Canadian material--you can still use it.

Posted by JD Hull at 03:00 AM | Comments (0)

November 19, 2007

Redux: You're smart when you're angry.

Anger is that powerful internal force that blows out the light of reason.

-- Ralph Waldo Emerson

Maybe, maybe not. WAC? could never be sure. Last week, writing about the Las Vegas Dem debate, we were just kidding, mainly. We did like HRC's pluck. But being in an ADR-non-warrior-let's-explore mode lately (keep that on the down-low), we noticed that Stephanie West Allen had this great piece back in June at her "other blog", Brains on Purpose: "Good Brain, Bad Brain? Bring It All to the Negotiation Table".

Posted by JD Hull at 05:23 PM | Comments (0)

ADR, Mediation--and a few words about Dinosaurs.

How do scientists--and dinosaurs--resolve their disputes, anyway? Hear an interview with Kevin Padian, curator of University of California—Berkeley’s Museum of Paleontology. It's from "International Dispute Negotiation", a podcast interview series of The International Institute for Conflict Prevention & Resolution (CPR). The interviews are conducted by General Electric in-house lawyer Michael McIlwrath, based in Florence, Italy. The Padian interview is here. Vigilant Diane Levin pointed out IDN to us last week.

Posted by JD Hull at 12:59 AM | Comments (0)

November 18, 2007

Can you overdo courtroom technology?

You sure can. And some good trial lawyers we know are making that mistake right now. Remember the idea is to tell your story, simplify the arcane, and drive main points home to a jury which is doing its best to understand your client's case. Tech should help you and your client with jurors--not frustrate them. Don't hold your client back. Evan Schaeffer explains in "Are You Using Too Much Courtroom Tech?".

Posted by JD Hull at 12:37 AM | Comments (0)

October 22, 2007

Anti-semitism, prejudice, people and juries.

Here's something useful for both trial lawyers and actual humans.

Last week Anne Reed at Deliberations gave us a post which is important, gutsy and of the stuff that makes the blogosphere worth visiting. See "The Silent Stereotype". She begins:

A mock trial not long ago taught me a lesson about anti-Semitism. One of the presenting lawyers was Jewish, with both first and last names suggesting that heritage. The other lawyer had a name and a look suggesting Irish ancestry.

More here.

Posted by Holden Oliver at 05:00 PM | Comments (1)

October 18, 2007

Great news: clients are smarter, better served, or something--but lawsuits are down.

Well, at the moment, who cares about why? See Carolyn Elefant's piece at Legal Blog Watch, re: the new Fulbright & Jaworski survey on the downturn on most fronts in business litigation, and this related report in the Pittsburgh Business Times. Wonderful. Could it be that smart and well-served companies and clients are preventing or minimizing litigation? If the "non-litigation" part of your company or law firm is doing its job, cases should be down.

Litigators are like nuclear warheads; everyone has to have them, and keep them ready for deployment--but once you start using them, everything gets expensive and screwed up. Litigators know this better than anyone. Hull McGuire does commercial litigation, lots of it, and we love doing it. But even in the best of cases, no one ever "wins". Like war itself, commercial litigation is a last resort, and an inefficient way to resolve virtually any dispute.

Updated: 10/16/07 2:30 AM EST

Posted by Holden Oliver at 11:59 PM | Comments (2)

October 05, 2007

Duke lacrosse players lawsuit #1

We checked PACER and it's true. This morning former Duke students and lacrosse players Reade Seligmann, Collin Finnerty and Dave Evans sued prosecutor Mike Nifong, the city of Durham and police detectives

in a North Carolina federal court. The complaint calls the discredited and dismissed rape charges against them “one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history.” AP report is here. Watch next for the players suit against Duke U. itself.

Posted by Holden Oliver at 03:59 AM | Comments (2)

October 04, 2007

1st Amendment--Privacy--Extreme naked gardening in Happy Valley, Oregon. ("Dude, that ain't right.")

Essay Question No. 1

Steve Howatt, 56, gardens on his own property in the nude in Happy Valley, Oregon. He's a nice if slightly overweight guy. It's undisputed that he engages in no sexual displays or exhibitionism. The local city council is busy crafting ways to control him and so far has banned nudity (a) in public places and (b) which "can be seen" from public places. But some of the people complaining about Howatt, including Samantha Love, are nearby neighbors who can see Howatt from their own property. Love and others say "it's just not right". They want Howatt to stop. Howatt continues to assert a right to garden nude. In support of his argument, he claims that American statesman and inventor Ben Franklin was also a nudist. Newhouse News Service, KATU-TV (Portland) and esp. MSNBC video.

Discuss.

Posted by Holden Oliver at 11:59 PM | Comments (0)

October 02, 2007

Unprofessional: The Wimpy Local Counsel

Even the WAC? monkey (left, giving client service pep-talk) has nailed this one down: Clients do come first--you shouldn't even have to think about it. Our firm once engaged for litigation a local counsel who focused more on preserving personal relationships with local lawyers in his Midwestern city than on going to bat for our mutual business client, a very good one at that. Aside from being somewhat pathetic, it was frustrating, like having a tennis doubles partner on downers with weights strapped to each of his legs. But it was my firm's fault. We "let go" his well-known firm and him as soon as we caught on. We resolved next time to do better research on the ability of local counsel to be aggressive (if we needed it). You can serve a client without hurting

relationships between lawyers. And why not? One of the advantages of local counsel in litigation is a knowledge of, and rapport with, the locals. However, those relationships come second to a mutual client. Anything less is at best truly "unprofessional" and, at worst, a conflict of interest. The following posts, from our "Sensitive Litigation Moment"/Federal Courts series, are among the most visited WAC? articles:

Is "Professionalism" Just A Lawyer-Centric Ruse?

The Client's Professionalism Rules For Litigation

See also, Professionalism Revisited: What About the Client?, from the San Diego Daily Transcript, April 29, 2005.

Posted by JD Hull at 11:28 PM | Comments (3)

September 27, 2007

North Carolina: Players v. Duke?

The Chronicle: D.C. lawyer Charles Cooper has told ABC News that a majority of current and former lacrosse players and their families have hired him to investigate the possibility of a lawsuit against Duke.

Posted by Holden Oliver at 09:58 PM | Comments (0)

September 26, 2007

US court news (AP)

Parts of Patriot Act ruled unconstitutional. Portland, Oregon judge strikes down two provisions which allow search warrants to be issued sans showing of probable cause. Ex-husband in Warren Jeffs polygamy case charged with rape. New case is based on trial testimony in Jeffs case in Washington County, Utah. Phil Spector mistrial in LA. "Da doo ron ron ron, da doo ron ron. Yes, my heart stood still..."

Posted by Holden Oliver at 11:59 PM | Comments (0)

Texas: Another reason not to popularly elect judges--ever, anywhere.

Re: courts and lawyer cluelessness. See at Overlawyered this one: "Furor over Mikal Watts 'judges owe us' letter".WAC?'s said before that popular election of state judges is an embarrassingly medieval institution that hurts us all. (See, e.g., Are federal judges "better" than state judges?)

Posted by Holden Oliver at 12:24 PM | Comments (1)

September 21, 2007

Rule 23 bummer No. 2: Melvyn Weiss

It's been a "say-it-ain't-so-Joe" week. First, securities class action king William Lerach pleads guilty to paying off a named plaintiff. Now his former partner Melvyn Weiss, according to the New York Times, has been charged personally by the U.S. Attorney's office in Los Angeles with conspiracy, racketeering, obstruction of justice and lying to a grand jury in connection with the same pattern: undisclosed millions paid to named or lead plaintiffs in class action suits. See "Weiss Indicted In Class-Action Kickback Case"; also Overlawyered and links

there. 2008 issues? Weiss, like Lerach, has been a player in national Democratic politics and fundraising. 2008 U.S. presidential election fallout at some point? WAC? is not sure. We do see an over-caffeinated 2008 campaign worker or two going over FEC disclosure reports like they were looking for the good parts in Fanny Hill.

Posted by JD Hull at 11:59 PM | Comments (0)

September 19, 2007

Bill Lerach Guilty Plea: This disturbed WAC?

As PointofLaw.com, the San Francisco-based The Recorder and other sources reported yesterday, San Diego-based plaintiffs' class action guru William Lerach will plead guilty and be sentenced to 1 to 2 years in prison and pay $8 million in fines for arranging undisclosed payments to certain Rule 23 plaintiffs in securities-related lawsuits. The plea will be entered in the U.S. District Court for the Central District of California (Los Angeles). District Judge John Walter must agree to the sentencing range. More here, including the information, plea agreement and DOJ press release at WSJ's Law Blog.

WAC?'s gratuitous take. All of our clients and most of the lawyers in Hull McGuire PC never liked the class action bar much--but that's not the point. Lerach and his team at his firms were creative, aggressive and generally good craftsmen. They were good at what they did--i.e., a new kind of economic terrorism aimed at corporations via research,

pleadings and discovery--even if we hated it. If this new stuff is true, what a 100% waste of talent, energy and resolve. More importantly, what was taught/imparted to new, junior and younger lawyers in those firms over the years--at best that the law was a cynical game, a dodge? No moral high-ground, gloating or even humor by WAC? would ever fit this story.

Only sadness could.

Posted by Holden Oliver at 09:21 PM | Comments (0)

September 18, 2007

"And how much time will the deacon give us for discovery?"

Bible-based ADR? This one is from David Lat at wonderfully secular Above The Law. WAC? may either begin drinking or attending services again. Also, Rule 38 of the Institute for Christian Conciliation is: "Legal or Scriptural Briefs. The arbitrators may request or consider briefs or position papers that set forth the parties' understandings of the legal, factual, or scriptural issues." So can someone please go down to the Church of the Final Thunder or whatever down the street and Shepardize this passage--chapter 3, verse 4, jackson 5--from the Book of Amos? I want it right now or I'll sack the lot of you.

Posted by JD Hull at 10:59 PM | Comments (0)

September 16, 2007

The real rose of Texas: Racehorse Haynes

Say you sue me because you say my dog bit you. Well, now this is my defense:

My dog doesn't bite. And second, in the alternative, my dog was tied up that night. And third, I don't believe you really got bit. And fourth, I don't have a dog.

--Richard Haynes, at an ABA conference, long time ago

WAC? loves trials and Texans. Houston trial lawyer Mark Bennett publishes a blog we'll start to watch more called Defending People: The Art and Science of Criminal Defense Trial Lawyering. See on now 80-year-old Richard "Racehorse" Haynes "A Great Moment In Trial Lawyering" And see Bennett's "Resiliency".

Posted by JD Hull at 11:59 PM | Comments (0)

"FRCP and Metadata - Avoid the Lurking E-Discovery Disaster"

Recently, before attending and participating in a panel on the west coast on developments in American law over the past year, WAC? reviewed, among other things, this article, courtesy of Workshare and by Dennis Kennedy. It's one of the best primers you could read on the e-discovery amendments to the Federal Rules of Civil Procedure which became effective December 1, 2006. If Rules 26 and 37, FRCP, are part of your world--and they are if you work in federal courts--you should read it sooner rather than later. Not long, gets to the points.

Posted by Holden Oliver at 12:05 AM | Comments (0)

September 14, 2007

"Maintaining" in front of juries: do your trial associates seem like creeps?

Juries are not dumb and miss little. They watch you and yours in the courtroom, the back of the courtroom, hallways, restrooms, parking lots, restaurants. Whether or not you think the people you bring to trial with you are capable of looking or acting like stone "creeps" at any moment during the roller-coaster ride of a trial, explain to these men and women in advance the importance of "maintaining" a demeanor which appears professional yet likeable, amiable, fair and genuinely good-hearted.

Jurors, of course, will always surprise you. No matter what an expert might tell you, or how hard you've worked at selection, you are always wrong about two or three of them. You've heard that. Now hear this: don't go out of your way to antagonize jurors with sideshows which have nothing to do with the trial itself.

In 1997, after a two-and-a-half week trial, we won a jury defense verdict in a breach of contract and fraud trial involving three established companies and a super-nail biter which no one could call. Everyone had "bad" facts to deal with. All counsel and most witnesses did a fine job. An honest, fair, bright and even-tempered judge

presided.

So we interviewed a few of the more earnest, intelligent jurors right after the trial--and were told by all but one of them that they were seriously non-plussed by some of the sneers, body language, guffaws and antics of the fire-breathing "let's kick some ass" associates and paralegals in the firms helping the plaintiff and the co-defendant in and out of the courtroom. This seemed to happen a lot with two younger lawyers (I knew them both--nice people, usually...) in the same firm who sat together in the court room smirking and cockily approaching counsel's table bearing a note or message with an attitude that said "let's see how our wretched and low adversaries handle this one" and "your sufferings will be legendary, chumps"--that kind of thing. Just nice kids getting really into it. But in our interviews, some of the jurors used words like "creeps", "jerks" and worse to describe these people. The law firm's culprits were just over-jazzed, over-confident, over-macho and young. But their behavior, even subtle things, may have tipped the balance. Jurors don't like "creeps in suits".

Don't screw up hard work and a client's chances at trial with mean-spirited sideshows confirming what many jurors thought about many lawyers anyway. Jurors are watching you, your attending GC, client representative and/or your witnesses AND your associates and paralegals like hawks: in and out of session, in the halls, in the back of the courtroom, restrooms, parking lots, restaurants. Very little is missed. Whether or not you think your trial people (men or women) are capable of looking or acting like "creeps" and robots of war at any moment during the roller-coaster ride of a trial, explain to them in advance the importance of "maintaining" a demeanor which appears professional yet fair, friendly, amiable and genuinely good-hearted. Better yet, hire only those people to help you present your case to a jury.

Posted by JD Hull at 11:23 PM | Comments (0)

September 10, 2007

$30 million: Durham gets an offer from 3 lacrosse players

A little on the high side in first round: $5 million from city insurance and $25 million from city budget. $10 million a defendant with five year pay-out. In the The Chronicle, the Duke student daily.

Posted by Holden Oliver at 11:59 PM | Comments (0)

September 06, 2007

People--lawyers, too--need mediation training.

“Whenever two good people argue over principles, they are both right.”

--Marie Ebner Von Eschenbach

See Justin Patten's new Human Law Mediation website. There's even a quote from Christian Slater.

Posted by Holden Oliver at 11:59 PM | Comments (0)

August 16, 2007

Redux: Sensitive Litigation Moment No. 3: "Declarations" as Substitutes for Affidavits.

In 1976 Congress passed a barely-noticed housekeeping addition to Title 28, the part of the U.S. Code that deals with federal courts. Among other things, 28 USC section 1746 allows a federal court affiant or witness to prepare and execute a "declaration" rather than an affidavit--and do that without appearing before a notary. Under section 1746, a "declaration" has the same force and effect of a "regular" notarized affidavit.

Many lawyers who practice in federal courts don't know about the existence of section 1746. I wouldn't have known about it either--a DOJ lawyer clued me in about it years ago. But an un-notarized declaration with the simple oath required by section 1746 can be used any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion. A useful and convenient rule, which makes you feel like part of a special cult when you use it. Federal judges understand and accept it. It saves witnesses and lawyers the time, cost and aggravation of getting client statements notarized. Notaries, however, don't talk about the provision much.

Posted by Holden Oliver at 08:23 AM | Comments (0)

August 06, 2007

Sensitive Litigation Moment No. 27: When Men Were Men...

Here, folks: ADR, the old way.

Posted by Holden Oliver at 11:59 PM | Comments (0)

July 28, 2007

Got Jury Wonks?

Jury selection: part science, part art form, always difficult. But nervous fun for those with true grit. Do see Anne Reed's fine Deliberations, launched in February and focusing on "Law, news, and thoughts on juries and jury trials".

Posted by JD Hull at 11:41 PM | Comments (0)

July 11, 2007

Sensitive Litigation Moment No. 17: Informal Discovery.

Twenty years ago, James McElhaney, a gifted lawyer, writer and teacher of trial tactics, and the ABA Litigation Section, first published McElhaney's Trial Notebook, now in its fourth edition. Discovery, McElhaney notes, is a good way to learn what a witness will say, or to bind a party or witness to a particular version of the facts. However, "it is a very inefficient way to get information." There are lots of investigation ideas in McElhaney's book, but they all involve simple curiosity and do-it-yourself "trolling" for information the trial lawyer gets first-hand on his or her own. Next time a new case begins,

resist rushing into written discovery and depositions. Step back from the discovery routine--you'll get into that bubble soon enough--and learn a few things on your own. Just as witnesses say unexpected and even startling things when they testify, useful and even surprising facts are available about opposing parties through the Internet, court files, published cases, D&B reports, news archives and business libraries. These inexpensive but ignored sources are often inconsistent with information parties will give about themselves in formal discovery.

Posted by JD Hull at 03:35 AM | Comments (0)

June 19, 2007

Cite-checking, dudes.

This is your DOJ document.
This is your DOJ document on drugs.

WAC? likes the Harvard Blue Book and even the Chicago "Maroon" Book. And using them. It thinks that the fastidious baby boomers who perfected them got that one right. See at Above The Law re: bluebooking hell "This Is Why Cite-Checking Matters".

Posted by Holden Oliver at 11:21 PM | Comments (0)

June 18, 2007

The Duke Chronicle: Nifong's bad Saturday...

From the Duke student daily, here's "State Bar finds Nifong guilty of 27 counts of misconduct - Lacrosse prosecutor to be disbarred", and other coverage from Raleigh and Durham, North Carolina.

UPDATE: Duke settles with indicted players.

Posted by JD Hull at 11:06 PM | Comments (0)

June 06, 2007

Is Your Firm Telling Your Client The Truth?

Lots if not most of these cases my firm defends waste money, time and resources; they clog up the court system, they are all about the lawyers, and they make business clients (especially non-Americans) think lawyers, judges and the American court system is uncaring, anti-business, self-indulgent, inefficient and flat-out nuts. Lawyers keeping the client in the dark is much to blame.

A premise of this blog (see our first post in 2005) is that lawyers regularly lie to their clients. They lie to even great clients. WAC? believes that the practice of law generally has become disturbingly and cavalierly "lawyer-oriented", rather than "about clients". We think that, increasingly, sophisticated clients, who are often just as savvy if not more savvy about their cases and deals than the lawyers who serve them, have become the equipment in an expensive and wasteful game played by lawyers.

Rather than the word "lie", we could use the more PC or subtle expressions of fudge the truth, fail to disclose or obfuscate. But why use softer terms? Fact: we lawyers have some of the strongest legal, fiduciary and professional duties--in common law, statute and public policy--not only to tell our clients the truth but go out of our way to explain to clients actual events as they happen and what we really think about merits of litigation or transaction on a real-time and ongoing basis. My threshold question is that if I think my client or its general counsel would want to know about an event, or even know merely what I am thinking about (from "good" to "bad" observations and analysis of a project's turns and progress), I tell them. If I don't tell a client what happens and what I think about it, I am lying. It's a hard standard, but it is ours as lawyers.

What do lawyers hide from their clients or lie about? In litigation, it's 4 main things: (1) day-to-day developments which are "bad", not perfect or the client just might not really want to hear (call them

tough phone calls), (2) actual settlement posture (and even actual settlement offers), (3) the general direction, merits and legal terrain of a case which lulls the busy client into thinking everything is just fine or at least not hopeless (in these instances, non-disclosure often occurs because of inadequate research coupled with "drinking the Kool-Aid" about the merits and righteousness of your case) and (4) outright embarrassing screw-ups by outside counsel which should have never happened (in my view, mistakes are the chief offender).

Why do the lies or non-disclosures occur? Three reasons: Greed, where the law firm, perhaps in an engagement involving a one-time-only case, or one-night stand, wants to keep the matter going to make money; Incompetence (of the "clueless"/we-don't-really-know-the-law-or-the-procedures variety); and Screw-ups (again, the chief offender).

How do I know this? It's based on inferences I've drawn and am more than reasonably sure about (say 98% certainty in each instance) in cases and transactions over the past 20 years. And over the past two or three years, I've seen opposing counsel from great, good and mediocre firms apparently go out of their way consistently and painstakingly to do "damage control" to hide their client's real prospects of failing or succeeding in the project, or hide outright screw-ups (some understandable, some not). It has been especially true (maybe 100%) in the instances where my firm has defended in cases brought by firms with a contingency fee arrangement with their plaintiff-client, a medieval practice (often defended on basis of "access to courts", etc.) where the lawyer is king, and clients are treated like chattel and kept in the dark. Lots of these cases my firm defends waste money, time and resources; they clog up the court system, they are all about the lawyers, and they make business clients (especially non-Americans) think lawyers, judges and the whole system is uncaring, anti-business, inefficient and flat-out nuts. And lawyers keeping the client in the dark is much to blame. Clients would discontinue or settle them if they only knew the truth.

The solution? Well, we've got two notions. First, since practicing law is hard, do it the right way, with good research, and thoughtful ongoing case assessment, and keep the client informed of what you are thinking at least once a week.

Second, use this test: Conduct your discussions with opposing counsel as if your client were listening.

Posted by JD Hull at 06:29 PM | Comments (2)

May 18, 2007

International arbitration: dealing with delay

Save this if you litigate abroad. "Faster, cheaper and better" is not, unfortunately, every business litigant's experience in obtaining and enforcing awards in international arbitration. But even under the current scheme of laws, conventions and treaties, arbitration still makes sense. So our friend Mel Simburg of Simburg Ketter, the Seattle member of the International Business Law Consortium, has written "Delay and Sanctions in International Arbitration." Simburg's guide is our kind of article by a fine lawyer. In 8 pages, Simburg (a) takes us through the U.S. Federal Arbitration Act, the New York Convention of 1958 (on the recognition and enforcement of arbitral awards), and the procedural rules of UNCITRAL, WIPO and ICDR (international AAA), and then (b) offers practical devices and strategies for moving arbitrations along, combating delay and the use of sanctions.

Posted by Holden Oliver at 03:20 AM | Comments (0)

May 04, 2007

Patten: Litigation Avoidance

As usual, London's Justin Patten at Human Law has a point. See "Are Lawyers Ready To Embrace The Concept Of Litigation Avoidance?"

Posted by Holden Oliver at 11:48 PM | Comments (0)

May 03, 2007

Subpoena for "lost Rove e-mails" served on AG Gonzalez

There's a copy of it here, via beSpacific, if you scroll down a little. This features a lawyer-politician with an arguably high-end client, the U.S Congress. Sen. Leahy (D-Vermont) requested the Rove e-mails at the Judiciary Committee’s oversight hearings on the U.S. Attorney firings (for alleged job performance problems) with Attorney General Alberto Gonzalez on April 19, 2007, and again in a letter on April 25. When there was no response to either request, a subpoena for the e-mails issued from Leahy to the Justice Department on May 2.

Posted by Holden Oliver at 12:17 AM | Comments (0)

April 13, 2007

Justin Patten: The "Iceberg Costs" of Litigation

My firm loves business litigation and trials--and prefers defendants. But some of our clients need to sue. Our rule #1 of litigation and first advice for clients is always (seriously): just don't do it--even if you have the best facts, law and resources. You don't need to put it in writing to your client; you just say it, and you say it more than a few times during the decision-making process leading up to suit. You really have a discussion. See my friend Justin Patten's Memo to Clients on this subject at his well-regarded Human Law site. Justin gets it.

Posted by JD Hull at 11:59 PM | Comments (0)

March 08, 2007

Sensitive Litigation Moment: Rule 27, its state counterparts and Day on Torts.

Trial lawyer John Day at Day on Torts , a fine blog, has a good piece on the Tennessee counterpart to Rule 27, Fed. R. Civ. P., in "A Way To Reduce the Number of Lawsuits". Rule 27 of the (U.S.) Federal Rules of Civil Procedure is called "Depositions Before Action or Pending Appeal"--and it's not used much. Most states have versions of Rule 27, with different case law on how you can take discovery before an action has been commenced: either to preserve testimony which might "get away" and/or to do a presuit evaluation of the merits of an action.

The idea makes a lot of sense but it's harder to use than you might think from jurisdiction to jurisdiction. I've used that kind of provision three times in state proceedings with varying amounts of leeway given by the court in each case. The risk of using such a provision is the countering argument in each proceeding you use it that it's used to harass rather than explore. Courts don't see it much either--one Durham, North Carolina court I used it in at first thought I had made it up--so go easy, check the cases on it and think it through. While I think it's a great concept, I haven't used it at all in federal court practice, which is 95% of the litigation my firm does.

Posted by JD Hull at 06:33 AM | Comments (0)

February 12, 2007

Redux: Sensitive Litigation Moment No. 16 : Ask WAC? about...Using The Media.

Trial lawyer Jack Carson (not his real name) from Shaker Heights, Ohio, writes in:

Dear WAC?: I'm 8 years out of school, I just made partner, and I try cases in federal courts. I know my evidence, and juries love me. But I'm new in town--in what you call a LawyerTown, not a ClientTown--and none of the lawyers in town outside of my firm, and none of the the judges, seem to "like" me yet. To the courts, I am "Mr. Carson"--or "what's-his-name"; the town's mainstay lawyers (who have, by the way, raised being obsequious to an art) are addressed as "Larry", "Moe" or "Racehorse". So my clients and I sometimes get shortchanged on the law and procedural matters--"townies" like Larry, Moe and Racehorse can win on some issues just by showing up. The law here seems to mean very little. Before arguments, I feel that my time would be better served picking out the right bow tie that day. What should I do? Respectfully yours, Shaker Jack

So we give Shaker Jack this somewhat cryptic, but useful, client-oriented response:

Dear Jack: LawyerTown Townies and their good 'ole boy cultures are in all but the largest US cities, and they are a big-ass problem. The law and clients become less important, and insecure judges often look to townies for cues. First, lose the bow ties for a few months. Second, stay in federal courts--and demand jury trials in all your actions. Third, just keep the client as the main event, and keep lawyering the right way. Finally, you should make journalists your friends. Start today. Generally speaking, be like Bob Strauss, the non-litigating Washington, DC lawyer legend. Make reporters, broadcasters and writers your friends before you need them. Journalists love to watchdog courts and other lawyers. Use the media sparingly and in the right way. And, hey, journalists are fun. You follow? Sincerely yours, WAC?

Posted by JD Hull at 12:59 AM | Comments (0)

February 02, 2007

Sensitive Litigation Moment: Leading questions under Rule 30

Worth reading on Rule 30 is "When Are Leading Questions Permitted During Federal Court Depositions?" at Evan Schaeffer's well-traveled The Illinois Trial Practice Weblog. Most witnesses in depositions are adverse, or "hostile". So lead them. Mix it up with them. And savor the brutality if you must. But use short questions.

Posted by JD Hull at 11:59 PM | Comments (0)

January 25, 2007

The Libby perjury case--and the "big" opening argument

Never underestimate the power of a great opening argument. If you are representing a defendant, an explosive start with a compellingly structured "lens" will sit with the jury for weeks--and can put the plaintiff on trial. See also yesterday's International Herald Tribune piece on defense counsel Ted Wells' booming opening statement in the Scooter Libby perjury trial re: the Plame CIA leak/outing--and the dangers of the blunderbuss opening in that case.

Posted by JD Hull at 11:59 PM | Comments (0)

January 24, 2007

Good state court news

On a subject WAC? has posted on before--we believe popularly electing state judges degrades corporate multi-officed and non-U.S. clients (and all clients), their lawyers and the courts alike (see, e.g., here and here)--Walter Olson at Point of Law noticed that: "The Illinois Civil Justice League thinks the state would do better with an appointive process, rather than partisan elections as at present".

Bravo.

Posted by JD Hull at 07:52 PM | Comments (0)

January 20, 2007

Sore, important subject: "Loser Pays"

There's an interesting collection of periodic posts (pro and con) over at Point of Law on adoption of a UK-type "loser pays" scheme in American courts: a touchy if not just plain raw subject with constitutional colors. The loser-pays issue in the U.S.--it balances the right to access to courts against the need to deter wasteful/shoddy litigation--routinely jangles nerves and triggers serious fights over which inefficencies a democracy should and shouldn't accomodate. But loser-pays schemes merit discussion in America by lawyers, judges, academics and pols of all political persuasions in the interest of (1) clients and (2) good lawyering. It's not merely a pet issue of the right. Y'all game to at least talk about it?

Posted by JD Hull at 04:00 PM | Comments (2)

December 17, 2006

The Art of 'Subsequent Remedial' Advice

If you are truly service-driven for corporate clients, you live it, breathe it, get it. And all your employees do. It's not a ruse you lay on clients to get new work through the door because you need a new one-night stand to make ends meet, or because it sounds good (i.e., you and yours are could care less about clients, and are in fact the "Eddie Haskells" of client service; yet "client service" must be in your promotional materials and it's cool these days to make even specious noises about it). Instead, you know that "doing the work is marketing". For you, keeping good clients is a passion, preoccupation, a religion. It's not just for show.

Here's an idea for lawyers who are serious about service. In many business litigations your firm has opportunities to isolate and bring to the client's attention "areas for improvement" highlighted in litigation. Your trial lawyers make mental notes about how lawsuits either arise or are made complicated and expensive by conditions, procedures or documents which need corrective action at the client's shop. These defects usually lurk unnoticed in day-to-day business practices, often obvious to the client's rank and file employees. It could be: a confusing employee handbook, a potentially faulty environmental storage practice, ambiguous language in a surety or insurance document, and even a culture or specific office location of the client which which seems ripe for workplace discrimination claims .

You get the idea.

So early on in the engagement, inform your general counsel or client rep about the problem or imperfection, and tell her that other departments in your law firm would be glad to help outline the problem in detail and/or solve it. If the client doesn't need or want your help to fix the problem, fine. The point is that you are looking out for your client in the long-term--in overall operational areas of its business--and your firm cares enough to say something and offer to help.

Everybody wins when you help clients address systemic issues presented by litigation. No insincere gimmicks here: just alert and useful lawyering as your real marketing tool.

Posted by Holden Oliver at 08:48 AM | Comments (0)

December 05, 2006

Slick Answers to Lazy Interrogatories.

Color me silly, but I love and respect written discovery during the pretrial process in American federal courts. Years ago, a fed-up U.S. district court judge, throwing up his hands during arguments by lawyers on a motion to compel discovery responses, referred to answers to interrogatories as "slick lawyer answers to lazy lawyer questions".

I feel his pain. Once a new second year associate who worked briefly for our firm (after one year at another firm) complained that we were putting too much thought into a set of interrogatories under Rule 33, Fed. R. Civ. P. Our new hire patiently explained to me that interrogatories and other written discovery were in fact "simply a way for lawyers to bill time so they could make money, and nothing more." He was adamant about it, too.

Nice guy, and I liked him--I always try to take his cab when I'm in Pittsburgh.

But complex and hard-fought civil cases really do turn about 90 per cent on the quality of the discovery questions and requests, including deposition questions, and the responses to them. And well-thought out and strategically-timed written discovery is the best way there is to prepare great depositions--and get ready for trial.

Posted by JD Hull at 05:07 PM | Comments (0)

Boola Boola, Balkin, Blogging.

If you haven't yet, see Balkinization, which focuses on First Amendment and individual liberty issues. Popular, and created by Yale Law professor Jack Balkin in 2003, shortly before the U.S. invaded Iraq, this blog is worth the time of busy people in practice or academia. It's intelligent and lefty without being and preachy and shrill--a risk with this kind of blog. It has a sense of humor. If Balkin promises in a tangible way to help WAC? with battles against lame forms of legalese, faux lawyer professionalism, and/or pointless regimes of "PC", I will: (1) fly to New Haven first chance I get and buy Balkin and two of his talented writing team members dinner, and (2) not turn R over the sight of liberals emascualting the First Amendment, keep reading Mother Jones and the New York Times, and continue raising money for sane Ds. Save me, guys.

Posted by JD Hull at 12:56 AM | Comments (0)

December 02, 2006

The Vanishing Jury Trial

From The Boston Globe, see "Few Chances for Lawyers to Develop Trial Skills", by Sacha Pfeiffer.

Posted by JD Hull at 11:47 PM | Comments (0)

November 14, 2006

Defendants Mounting A What?

WAC? is defense-oriented and written by leading heterosexuals so this interested us. "Why Do Defendants Always Mount a 'Vigorous' Defense?" Peter Lattman at WSJ Law Blog wants to know and suggests we all get a new and better word than "vigorous" for our SEC reports, ABA Accounting Standards No. 5 letters, GCs, the press, wives and girlfriends, and others who require ostensible accuracy combined with a show of strength. People are voting over there for a better word. Law Blog likes "robust". But we like "soulful", "lusty" and "prohibitively expensive". These are descriptive, trial-lawyerly and way manly.

Posted by JD Hull at 04:55 PM | Comments (0)

November 11, 2006

"Declarations" as Substitutes for Affidavits

We've mentioned declarations in lieu of affidavits before. In 1976 Congress passed a barely-noticed housekeeping addition to Title 28, the U.S. Code provisions on federal courts. 28 USC section 1746 allows witnesses to prepare and execute affidavits without appearing before a notary. But many lawyers who practice in federal courts don't know about its existence. An un-notarized "declaration" with the simple oath required by section 1746 can be used any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion. The declaration has the same force and effect of a "regular" notarized affidavit--and saves witnesses and lawyers the time, cost and aggravation of getting statements notarized.

Posted by JD Hull at 06:04 PM | Comments (0)

November 09, 2006

Tuesday's Election Results and Litigation Reform.

What About Clients? supports most litigation, tort or judicial reforms which would curtail or eliminate "junk" science, junk cases, junk judges, you get idea. WAC? has flirted with and briefly went steady--perhaps wrongly--with the UK "loser pays" rule. We've stopped short of advocating blue ribbon juries, an un-American idea, granted. But we do support organizations which envision that, some day, no American state court judge may be popularly elected but instead each is appointed based chiefly on merit by people who understand the difference between a great lawyer/jurist and a white-trash dingbat with a law degree who needs a job. Americans need much better judges, especially on the state benches. But I digress. So just see "What Does Yesterday [November 7] Mean for the Litigation-Reform Crowd?" by Peter Lattman over at the WSJ Law Blog and especially Peter's jumping off point, the election roundtable at Point of Law.

Posted by JD Hull at 05:28 PM | Comments (0)

October 27, 2006

"And then it dawned on me a minute into his opening that 'Racehorse' Flannigan, our trial counsel, was untried..."

Corporate counsel: Ever get That Sinking Feeling about your fire-breathing litigators after the trial starts? Do those guys just threaten on the phone, write letters and interrogatories and hold press conferences--or can they really try your company's case? Can they connect with a jury? Do they even like juries? How tough are they at 4:00 PM on the fourth day of trial before a hostile judge?

From Robert Ambrogi at Legal Blog Watch, here is "Is Courtroom Competence Going Kaput?", inspired by a report of the Boston Bar Association on the waning of both jury trials and trial lawyer competence. And Boston is not alone.

Posted by JD Hull at 12:59 AM | Comments (0)

October 26, 2006

Sensitive Litigation Moment #15: You gotta see (and hear) this...

It's the Mediator vBlog Project --a blogging first, and it has mediators Diane Levin of Boston and Geoff Sharp of Wellington, New Zealand written all over it. Be warned that, while Diane's video at the new Mediator vBlog Project site is clever, warm and inviting, Geoff's video, on his own blog, is brilliant--but cartoonish and extremely unsettling. I strongly suspect Geoff's not American, either. According to Diane, MvBP's mission is:

to take advantage of recent video sharing technology to post short video clips of mediators everywhere at work. The more 'live' the better. The site provides a platform for mediators from around the globe to share their skills by video. Simple really.

Posted by JD Hull at 07:45 PM | Comments (0)

October 24, 2006

Civil perjury: If you can prove it, do you use it?

Coming soon. Bad lawsuits encourage lying under oath during discovery. WAC? will get to this one soon. In the meantime, see one of the best short pieces on judicial reform ever written, "Making Civil Justice Sane", by Philip K. Howard, author of The Death of Common Sense. The article came out in June 2006. Howard suggests that judges be empowered to stop insubstantial suits at the beginning.

Posted by JD Hull at 11:59 PM | Comments (0)

October 16, 2006

The Kid From Brooklyn sounds off on honesty, candor.

Life's short, and diplomacy is over-used/abused. Sometimes we just need to say what we really mean. So if you're not working for the State Department--and maybe even if you are--here's some heart-felt good advice from www.thekidfrombrooklyn.com.

Posted by JD Hull at 10:02 PM | Comments (0)

October 09, 2006

SLM 14:"Retained dignity" in preventing employee suits.

A very fine post by Jay Shepherd at his HR blog Gruntled Employees, called "New HR Metric: 'Retained Dignity'", squares with my theory that most lawsuits brought by employees are triggered by unclassy firings. For years, we've told our clients that the average lawsuit against them by an at-will employee is legally insubstantial and groundless--but it still takes $50,000 or so in fees to make it go away on a motion to dismiss or for summary judgment. That lawsuit is fueled by anger and humilation, and lots of plaintiff's lawyers will take it. If your HR practices and managers are dumb and insensitive enough, you'll get a lot of these. Those fees add up.

Posted by JD Hull at 07:56 AM | Comments (1)

October 06, 2006

New HR Blog: Gruntled Employees

Gruntled Employees, a new management-side HR blog, seems to get it. My firm advises on employment matters and does related defense work. Boston-based employment litigator Jay Shepherd and his boutique firm understand that most employment disputes--and their expense--are ultimately rooted in weak or missing Human Resources departments and dumb management patterns with employees. See, e.g., "How To Save HR--an Introduction".

Posted by JD Hull at 11:47 PM | Comments (0)

Sensitive Litigation Moment No. 13: "Weenie" Litigators?

Not surprisingly, Googling "weenie" with "lawyers" yields quite a few results. But the concept of "weenie" trial lawyers (of several nationalities) comes up more than expected. So, in the next few weeks, WAC? will investigate why and how litigators are often seen as "weenies", and build a catalogue of "weenie-litigator" anecdotes, letters, pleadings and transcripts.

And then we'll share them with you. WAC? is also thinking about a book, cheerfully edited by Holden Oliver, our new hire.

Unsolicited submissions are welcome. However, only the funniest and/or most pathetic weenie-litigator material will be considered, vetted and published (but so as not to any embarrass or injure any weenie-litigator persons or their families--mainly, usually). Send to jglass@hullmcguire.com. For ideas, see posts in Generation Weenie, Humorix and BrothersJudd.

Posted by JD Hull at 03:13 PM | Comments (0)

September 25, 2006

Knock, Knock: The Supremes in Hudson v. Michigan.

Two Boy Wonders grace U.S. legal blogging: Anonymous Lawyer author Jeremy Blachman, and recent OSU law grad Ian Best of 3L Epiphany. Ian just posted this one: "Where is the Hudson v. Michigan Blog? - A Suggestion for Law Students". Be you an "R" or a "D", if you're in the law business, here's something to talk about.

Posted by JD Hull at 11:59 PM | Comments (0)

August 25, 2006

Sensitive Litigation Moment No. 12: Slick Answers to Lazy Interrogatories.

Allegedly, a perceptive and fed-up U.S. district court judge, throwing up his hands during arguments by lawyers on a motion to compel discovery responses, once referred to answers to interrogatories as "slick lawyer answers to lazy lawyer questions". I do feel his pain. Years ago, a new second year associate who worked briefly for our firm (after one year at another firm) complained that we were putting too much thought into a set of interrogatories under Rule 33, Fed. R. Civ. P. Our new hire patiently explained to me that interrogatories and other written discovery were in fact "simply a way for lawyers to bill time so they could make money--and nothing more." He was pretty adamant about it, too.

Color me silly, but I love and respect written discovery during the pretrial process in American federal courts. Complex and hard-fought civil cases turn about 90 per cent on the quality of the discovery questions and requests--both written questions and requests, and deposition questions--and the responses to them. And well-thought out and strategically timed written discovery, the kind that efficiently elicits useful and relevant information, is the best way there is to prepare great depositions--and get ready for trial.

Posted by JD Hull at 08:23 PM | Comments (0)

August 12, 2006

The Joy of Work, Burned-Out Lawyers & Hard Questions - Redux.

Vacation re-run No. 2, from April 2006--unfortunately this could apply to almost any week:

The past week was Pretrial Skirmish, Negotiation and General Posturing Week. Which I love. Lively chats with mainly worthy adversaries. You constantly learn new thin