Category Archives: Litigation Strategy

How to Communicate With Your Lawyer

Lawyers are supposed to be masters of communication. That is what they, supposedly, learned in law school. They learn how to write, crisp, clear sentences and are supposed to shape those sentences into cogent, well orchestrated paragraphs which are later supposed to be formed into persuasive arguments.

Lawyers learn oration in law school, so they can present their arguments to a Court and sometimes even to a panel of judges. These are the people who become politicians and stand up on the floor of the political convention waxing on about the future of America. So, how come it is that these same people seem to have so much trouble communicating with you, the client, about your case or matter ? The answer is that, despite all of that wonderful training, most often, no one has taught your lawyer how to communicate with you, the client.

In that event, therefore, it is likely that you that will have to communicate with them. There is often no sense in sitting around waiting for your lawyer to call you with an update or send you an unsolicited status report letter. Chances are, it is not coming. Accordingly, in order for the client to ensure that they communicate with their lawyers, it is often incumbent upon the client to initiate the dialogue.

And, what is the best way to do that you ask ? Here are some suggestions.

  1. Be Persistent.

Often lawyers are separated from their clients by receptionists, paralegals, associates, vacation schedules, court appearances, meetings and the often omnipresent automatic email response which tells you that your lawyer is “out of town” and will be checking email only “intermittently.”

Let’s start with the basics. When you receive the boilerplate email message response from your lawyer, telling you that your lawyer is unavailable, don’t believe it. Your lawyer is seldom, if ever, totally unavailable. Rare is the lawyer who travels to the Antarctic, in the middle of Winter, where there is no cell phone reception and no access to email. Lawyers are not permitted such travel. Law firms generally frown on lawyers who disappear entirely and become unavailable to clients. In reality, your lawyer is likely lying on a beach somewhere, looking at his email and his cell phone, and ignoring you while sipping his or her pina colada.

Your lawyer is likely reading your email even if he or she is not responding. Therefore, when you email your lawyer, demand a timely answer. The only excuse that a lawyer should have for failing to timely respond to emails is – death. And, in that unfortunate event, you should expect a prompt email from his Secretary advising you of his demise and informing you as to who at the firm has inherited your matter.

Get your lawyer’s cell phone number and use it. The best time to do this is at the beginning of the representation before you establish yourself as a pest and he does not want to give it to you. Lawyers should return telephone calls. While lawyers do go to Court, and attend trials, the average Court appearance lasts less than one hour. Demand a return call, therefore, the same day. Rare is the trial that lasts beyond 5:30 p.m. And why is that ? That is because the Judge knows that the lawyer has to return phone calls – your phone call.

Tell the lawyer’s receptionist when you need to hear back from him or her. Use words, if appropriate, like “urgent”, “important” or “time sensitive.” Don’t use words like “emergency” unless you really mean it. Some Courts define the term “emergency” as the imminent threat of death or bodily injury. Your lawyer will like you better if you use that definition and do not refer to emergencies that are really not emergencies.

  1. What to Say to Your Lawyer

Ask your lawyer to speak English to you. Is this really so much to ask after how much you have paid him or her ? Why should you have to have your law dictionary open just to understand what the guy is talking about. If you don’t understand what they are talking about, say so. “Dude, thanks for that 20 minute ‘explanation’ but that actually makes no sense to me.” Some lawyers, the good ones, may actually appreciate that. The bad lawyers will explain it again saying essentially the same incomprehensible thing they said the first time.

Ask about timing. “How long will this take ?” is one of my favorites. The reason that it is one of my favorites is because it almost always takes longer than anticipated. The reason for this is two fold – first, your lawyer likely has other things to do and, second, so does the Judge. You should consider whether you can live with the likely time schedule and how you may feel when the estimated completion date actually passes and the resolution of your matter ends up taking longer than planned. Can you handle the wait ? If the answer is no, you may want to consider alternative forms of Justice such as those recommended by Don Corleone in The Godfather[1]

Ask about the Cost. This is one of your lawyer’s least favorite questions. Why ? Because he or she likely has no real way to answer it. That, of course, does not prevent the average lawyer from trying. The problem with the question of “how much will this cost” is that, in order to answer this question properly you will have to be able to accurately predict what the other side (your adversary) will do. Nonetheless, you, the client, are entitled to an answer to this question, even it if is only an estimate subject to caveats.

Ask for your Bill. Smart clients ask to be billed at least every thirty days and, sometimes, even more often. The bill should tell you what is going on in your case. If it does not, don’t pay it. You should know and understand what you are paying for and why.

Ask for a case plan. Many lawyers really have no idea of how to resolve a case timely and efficiently. No, they did not learn that in law school. What we learned in law school was how to read cases and, then when were done reading cases, we read even more cases, and more cases, until it came time for the Bar Exam and we were then asked to regurgitate the “holdings” of those cases back at some invisible grader, in a far away city, that we never met before and will, in fact, never meet. That is how we become lawyers. Not one word about strategy. Not one class in case planning or billing or how to communicate with you.

The way lawyers learn these important tasks is on the job, when you, the client, ream us. And this, my dear client, is how we learn to be lawyers, not by reading the “holdings’ of piles of cases in law school.

One last thought. Lawyers are people too (I know that may seem hard to believe). We actually work better and harder for people that we like. So, be nice. It may benefit you in the long run.

 

 

 

 

[1] This is called satire and is not intended to be taken seriously so please do not tell my friends and relatives that I recommended that you take a “hit” out on your adversary.

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PEACE THROUGH WAR – A SHORT PRIMER ON HOW TO ACHIEVE A COST EFFECTIVE AND RELATIVELY QUICK SETTLEMENT

  • “All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.”

Sun Tzu, The Art of War

Many business people that come to our office for a litigation consultation utter a similar refrain: “how long will a litigation take, how much will it cost and when will this case be settled ?” These are all good questions for which there are, most often, no easy answers.

Typically, prior to the initial consultation, we have not been involved in the underlying dispute and, therefore, cannot reliably predict what stimuli will bring the other side to the settlement table. However, there are several universal truths, that are, or should be, self-evident.

  1. Very Few Wars End on the First Day

In a perfect world, we would file and serve a complaint, and the other side, either through counsel or on their own, will plead for a settlement conference or make an offer to resolve a pending lawsuit. The problem is that, the receipt of a summons and complaint most often does not inspire the receiving party to become more conciliatory. Usually, the initial reaction is for the other side to “go to the mattresses,” a phrase made famous in the G-dfather, which means to get ready for a long and contentious fight.

So, if the client’s objective is to settle quickly, then it would be reasonable to conclude that, if the other side begins to gear up for a long fight, that is a bad thing.

Right ?

Wrong.

  1. Sometimes Wars Need to Be Fought

How many business people come into our office, after having tried unsuccessfully, to settle a dispute, despite multiple efforts, which occur over an extended period of time. The distressed business person walks into the conference room, lays the settlement correspondence out on the conference room table, and justifies what is sometimes an extensive delay in bringing suit by stating:

“Look at how many letter and emails I sent. Look at how many times I spoke to my adversary on the phone. We had lunch. We had dinner. I offered them everything. I got nothing.”

This somewhat sad scenario is a regular occurrence in business. A client who offers everything and who gets nothing. To the battle tested litigator, the problem should be obvious; to the average business person and the neophyte, it is likely not. Here are some suggestions which will help the client, a prospective combatant, move from the “I offered everything approach and got nothing” to a place where maybe he or she will get a lot, maybe everything.

  1. Learn to Love the War

If you can accept the proposition that there is likely to be a war, you might as well win it. In order to do this, you must reconcile yourself to the fact that you might be involved in a prolonged conflict most often against your wishes. This happens when you have an adversary who simply will not cooperate. As we all know, there are people like this whom we encounter in business and in life. The trick is to learn how to convince them to move their position. The only way to effectively do this is to convince them that they will lose more by fighting than by settling.

When you learn to love the war, and see it as a means to an end, there is a greater likelihood that you will be able to convince your adversary that you will defeat him.   Therefore, rather than dreading the many hearings which are part of litigation, or the depositions, a business person would be wise to look forward to, and indeed, embrace those occasions.

Each circumstance, in which you and your lawyer are in the presence of your adversary, provides an opportunity for you to convince your adversary that he will lose more by fighting. This is often accomplished by persuasive and competent advocacy. This objective is also assisted by the demeanor of the client. It is the client who must be able to convince the adversary that he or she has the stamina, the will power and the funds to take the case to trial. If both the client and the lawyer or able to convince the adversary of this fact, whether true or not, it often causes the adversary to look at their checking account balance, assess the likelihood of prevailing, and take stock of their stomach for conflict.

Does your adversary really plan to take the case to trial? It is only by convincing your adversary that you plan to do this that you will ever know.

  1. Judges and Mediators Don’t Love War

Judges and mediators have a sentimental love for settlement. This is laudable. This sentiment exists because judges and mediators know that the court system can be unfair and, in some instances, a settlement which the parties negotiate on their own is often better than a trial decided by a Judge or a Jury.

Litigators most often welcome a Judge who encourages the parties to talk to one another, after a court hearing, or a mediator who tries valiantly to bridge the gap between the parties at mediation. The problem is that judges, and sometimes mediators, understandably have no idea of the prior efforts which have been made to settle the case and the timing of their request.

  1. Every Battle Presents an Opportunity

In any lawsuit, the concept of settlement never completely disappears. It can often be seen lurking, silently, beneath the surface. Depositions and court hearings often provide opportunities for the parties to reassess their settlement position.

Court hearings sometimes provide insight into what the Judge may think of the case. Reading the Judge’s mind is often a business that is fraught with peril; nonetheless, a concrete decision by the Court can often provide an excellent forecast for the long term outcome of the dispute.

Depositions are also wonderful tools for inspiring settlement. They can be far more effective than the client’s letter writing campaign or invitations to dinner. A deposition often reveals how a person’s testimony will play at trial. Will the adversary be a good witness or a bad witness ? Is the witness likely telling the truth ? Does either side’s story cohere ? Will it stand up to scrutiny and cross-examination ?

Unless you are willing to wage war, you and your client are likely to never know the answers to these and other questions about the long term prospects for success.

 

 

  1. In Litigation, as in War, Timing is Everything.

 

The person who wishes to win the war on the first day, and believes that he or she can do so, will surely lose. The reason that “scorched earth” litigators are often successful is because they are able to convince the opposing parties that, before a settlement can be achieved, he or she will burn down the village.

 

Will they actually burn down the village?

 

Who knows?

 

However, the old adage that perception is reality is useful in this context since it is only when your adversary believes that you will pursue the case to conclusion that you will be able to favorably resolve it.

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Know Thine Enemy

“Keep your friends close and your enemies closer.” Sun Tzu

      We have spent a substantial period of time in this column discussing the importance of understanding your own client, the law and relevant Court procedure. What we have not focused on, however, is the need to understand your adversary. Ignoring your adversary, or underestimating him or her, can have drastic consequences for the fate of your case.

       By adversary, I do not mean opposing counsel; I mean the opposing party. Whether you are plaintiff or defendant, it is only the foolish lawyer who ignores who is on the other side of the case. The good news is that there are plenty of opportunities to learn as much as possible about your adversary without spending a lot of your client’s money on a trained investigator. Here are a few suggestions.

  1. Google Search

     How about starting with a Google search. While this may seem overly simplistic, it is often the easiest way to begin your analysis. Perhaps the opposing party has his or her own webpage. Perhaps they have been quoted or featured in an article in a newspaper or magazine. Sometimes, through a carefully calibrated Google search, you can learn a person’s entire history – where they went to school, where they graduated college and where they worked. Their political opinions are often featured as are there Federal campaign contributions.

     After exhausting textual information I often do an image search. I want to see what they look like. Are they young or old? What race are they? What do they like to do? Are there pictures of our adversary posing next to a new Ferrari? This could be useful, particularly if you represent the plaintiff in a case involving a substantial damage claim.

  1. The Public Records

     I like to do exhaustive searches in the public records. I want to know where the opposing party lives. Does he or she live in a cheap apartment in a bad neighborhood or do they live in a mansion on the beach This may help me gauge whether the opposing party has enough resources to withstand the litigation assault which is likely coming. Litigation is the sport of kings and it is likely that someone who lives hand to mouth will crumble before your average industry magnate.

     Criminal records are often useful. Is your adversary a convicted felon? Have they done time in prison? Wouldn’t you want to know that before you take her deposition? What about drug convictions? Will you ask him, at the start of the deposition, whether they are taking any medication?

     Does your adversary own a vehicle? Is it a beat up old jalopy or a new Mercedes? Is it owned or leased?

     How about your opponent’s interest in corporations. Does your adversary appear in the public records as an officer or director of a business ? This is important to know because, when you start your deposition, you may want to ask what businesses your adversary is affiliated with. This will give you an opportunity to see if your adversary will lie. Many people do. They tend to underplay their involvement in different businesses. It can be fun to mark as an exhibit a copy of the public records showing how many corporations they are involved with. Videotape this and watch your opponent squirm. If your opponent will lie about something as basic as what corporations they are involved with imagine what else he or she may be lying about.

  1. Linked In

     LinkedIn is great for determining a person’s past employment and future stated goals. Most people post their life story on LinkedIn without giving it serious thought as to whether that information may be subject to review and analysis by an opposing lawyer. It is great fodder to obtain a work history from LinkedIn.

  1. Facebook

     I love Facebook. Facebook provides a window into someone else’s life that you cannot get anywhere else unless you actually know them personally. It is great for finding out where someone lives and who their friends are. When your partners at the law firm complain that you are spending too much time during the course of the day on Facebook tell them, with a straight face, that you are doing research !     

     Just like it is important to understand your case and the law, it is also important to understand your adversary. Understanding your adversary could help you serve process, formulate discovery requests and determine whether you will be able to collect on your judgment. And it all may be there, right in front of you, on the internet.

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What to Do When the Judge is Wrong

What do when the Judge is Wrong

Judges are wrong sometimes. Aren’t they ? If you typed the word “reversed” into the general federal database on Westlaw you would get thousands of hits wouldn’t you ? Of course, you would. Thus, it is fair to presume, and for you to tell your client under appropriate circumstances, that when the Judge has ruled against you, he or she simply made a mistake.

This can be hard to explain to a client. Clients sometimes believe that Judges are infallible; after all, they wear the big black robe, everyone genuflects when the Judge walks into the room (“all rise”) and clients presume that every judge is appointed to the Bench only after having been chosen by the President of the United States, vetted by the Secret Service and approved by Congress. That impression, while true for federal judges, does not apply to State Court Judges who are often elected and sometimes appointed by the Governor. Therefore, the Judge can be, in certain instances, human and, indeed, fallible like everyone else, subject to mistakes.

There are, however, all kinds of mistakes that Judges can make. There are big mistakes and little mistakes. There are immediately appealable mistakes and mistakes which are not immediately appealable. Ultimately, all of the Judge’s mistakes are subject to appeal – the question is when may an appeal be filed. You would think that this would be a relatively simple question to answer. Wrong ! The appeals courts have made this determination so complex that sometimes regular litigators do not feel comfortable answering it – they need to actually hire someone who has a specialty and is referred to as an “appellate lawyer.”

To many clients, the suggestion that an “appellate lawyer” needs to be hired only means one thing – more money. Without meaning to besmirch the reputation of the many fine appellate lawyers in our community, I would suggest that this is sometimes necessary and sometimes not. The average litigator should be able to handle the average appeal. The first question to answer is, however, whether you have the right to an immediate appeal or have to wait until after the conclusion of the whole case.

The appellate courts in Florida apparently face crushing workloads. That is why they, through their friends at the Florida Legislature, the Florida Legislature has restricted your right to file an immediate or what is sometimes called an “interlocutory” appeal. There are several rules which apply and which, if followed, may prevent your client’s appeal from being dismissed by the appellate court after it is filed.

1. The Order subject to the appeal must resolve all Issues among at least some of the parties.

Losing a summary judgment motion can be painful. However, the appeal of such an order entered with respect to such a motion requires careful thought to determine whether it is appealable. If your client is the moving party, and loses a summary judgment motion, the chances are that the Order is not appealable. Why ? Because the appellate courts want the trial courts to resolve cases and do not want litigants and their counsel to file an appeal every time a summary judgment motion is lost. The Courts would then be flooded with appeals filed by unhappy litigants.

2. Is Judicial Labor at an End ?

On the other hand, if your client loses a summary judgment motion, and an order is entered against it which resolves the entire case, the chances are that your client will be entitled to file an immediate appeal. This is because the “judicial labor [in the trial court] is at an end”. This is a fancy way of saying that the Judge is done working on the case and it can now be comfortably reviewed by someone else.

3, What if Summary Judgment is only Partial and there are other claims in the case still to be resolved ?

If there are claims which remain in the case, which are not resolved by a summary judgment motion, even if summary judgment does resolve most of the issues, it is likely that the order is not appealable until the end of the case. This is because the Order does not resolve all issues among the parties and because “judicial labor is not at an end”; in fact, arguably, judicial labor may still be in its nascent stages because the Judge is now tasked with addressing pre-trial motions, ruling on other summary judgment issues and actually trying the case.

The world of appeals can be complex. Every order must be determined based upon specific facts before a determination can be made as to whether an order is subject to an immediate appeal.

Determining whether an Order is appealable can be a very nuanced undertaking. However, the average litigator should be able to figure it out after reviewing the applicable appellate rules and case law. One would think that some wise appellate lawyer would have assemble a list of appealable orders for ready reference by the Bench and Bar. In fact, I attended a seminar at the Third District Court of Appeals hoping that someone would have compiled such a list and passed it out with the materials. While the hand outs were extremely helpful, and synthesized the recent case law on the subject, no handy check list was provided. Thus, it remains the job of the litigator to make appropriate determinations about what types of Orders are, and are not, subject to an immediate appeal.

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A Document Production You Can Believe In

Recent news in South Florida tells the sad story of a law firm involved in the defense of a major fraud case on behalf of a well-known local bank which was slammed with a $67 million jury verdict after trial.  If that wasn’t bad enough, after the verdict came down, it came to light that the bank failed to produce certain critical documents which plaintiff’s counsel believed would have altered the verdict and made plaintiff’s award even higher had the Jury seen them.  If you were the lawyer responsible for supervising and implementing the document production in this case, and this issue came to light after the trial, there may be only one thing left for you to do – quit your job.  How could you prevent such a debacle?  Read on.

  1. The Dreaded Document Request

There is  probably nothing that a litigator likes less than receiving the dreaded “Request for Production.”  The reason is that the receipt of this document by counsel virtually guarantees that the lawyer, and his or her law firm, will be embroiled in the drudgery of responding to the request.  Let’s face it, document productions are not fun.  Document productions are what you send junior associates to do who are clamoring for jobs and name recognition within the law firm.  The problem is that when you send a junior associate to do a document production you risk the associate missing something important.  Here are some general guidelines and things to consider when responding to document requests.

 

  1. Understand and Accept that Your Client Will Be Unhappy

As much as a lawyer does not want to receive a document request, your clients don’t want to receive one either.  Accept the fact that your client will be unhappy.  Accept the fact that part of your client’s unhappiness will be focused at you.  Because, after all, if you had won the case within the first 30 days, like your client thought you should, there would be no need for a document request and no need for your client to respond to one.  What the lawyer needs to understand is that clients are people just like lawyers[1].  Notwithstanding the fact that much litigation concerns business matters, for the client, there is also an emotional component to litigation.  It is common for many clients to respond to the lawyer, when presented with a document request, by saying something like this:  “Why do I have to respond to their document request when they were the ones that breached the contract?”

These types of questions often force the lawyer to launch into a soliloquy about the justice system, discovery and fairness.  Some clients understand the lawyer’s speech, and resign themselves to the necessity of responding to documents requests, but others do not.  Some clients, the passive-aggressive ones, simply listen to your speech while thinking silently to themselves – “I don’t care what this guy says, I’m not going to give these documents to my lawyer.”  This is the client you have to identify in advance. This is the client whose concerns must be addressed immediately.

In this circumstance, the fact that you and your client start off on the same side starts to change.  Now, suddenly, you and your client are adversaries.  Is a junior associate equipped to deal with the client’s emotional reaction to the service of a document request?  Not a chance.  The last thing that the young associate wants to do is tick off the client.  The worst thing that could happen to the associate is that the client calls the partner to complain about him or her.  This could be the death knell to the associate’s tenure at the firm.  Thus, the natural tendency on the part of young associates is to accept the client’s explanation about the location and volume of relevant documents and move on thinking happily to themselves that the client is a satisfied customer.

But the partner should know better.  The partner should know that the client is holding documents back.  The partner should know that the firm’s client has emotional issues with the other side and wants to make the other side unhappy.  The partner should ask the client:  “How is it possible that this particular category of document do not exist?”  “Are you sure?”  “Can I look in your filing cabinets?”

The partner should explain to the client the consequences of not producing relevant documents.  In certain cases it can be the cause for a new trial and the client’s legal fees can double or triple as a result.  In other cases, like the example cited above, it can cause the lawyer and the client to be sanctioned. It can cause a sixty-seven million dollar award to turn into a seventy-seven million dollar award. As a result, it is best to follow the familiar adage – honesty is the best policy.

The purpose of this article is not to suggest that there is no role for junior associates in document production.  The point is that their work must be supervised.  So when the young associate gathers the materials, prior to production, someone at a senior level should really look at the documents which are being produced.

  1. The Lawyer Should Interview The Client’s Employees

Oftentimes the point person that the partner deals with on a day to day basis concerning the litigation is not necessarily the person who is the custodian of the documents.  Therefore, a useful tool in your initial conversation with your client would be to have that client identify which employees are keeping the records.  Employees generally tend to be less concerned about the emotionality of litigation (“Hey, I just work here”).  One of the employee’s jobs is to make sure that the lawyer is happy so that the lawyer does not call the employee’s boss and say that the employee is not being helpful.  Accordingly, one of your best resources as a lawyer is to speak directly with the client’s employees and interview them about their document retention policies and where the documents are located.  This arduous task will likely save you time and effort in the long run.

You should also consider keeping notes about the efforts that you undertook to search for documents.  This is because, one day, when another lawyer files a motion for sanctions against you, and claims that you deliberately withheld production, or you did not look for the requested documents, you can detail for the court the steps you took to make sure that this did not happen.  Certainly, the lawyer in the bank case referenced above would find this helpful at the upcoming hearing on sanctions.

  1. How Lawyers Win Cases With Discovery

You may not realize this but a lawyer with a bad or mediocre case can win the case based upon discovery violations.  These lawyers manifest their game plan by filing multiple, overbroad request for production and then moving to compel repeatedly until they find something you missed.  Then comes the motion for sanctions; then comes the motion for default or the motion in limine.  These lawyers are not litigating the case – they are litigating the discovery violations.  Often this is done because the lawyers don’t really have a case or they have doubts about it.  Sometimes, however, it is easier to litigate a motion for default then to have to endure a trial.  This is particularly true in cases involving lawyers who handle cases on contingency.  To them, cases can be mostly about money.  The more time and effort they spend investing in their case, the less money they will earn.  Accordingly, their goal is to get a quick hit at your expense.  Consider the options set forth above in order to avoid this — be diligent, don’t trust your client or your adversary and, most importantly, protect yourself.

The point is that the innocuous document request you receive is fraught with peril. It can be the source of much consternation, finger pointing and general unhappiness for you, for your client, for your associates and even for the Judge. A skilled lawyer is able to manage this unhappiness and make certain that the document production is handled professionally so that everyone can sleep at night.

 

 

 

 


[1] There may be some countervailing authority to suggest that lawyers are not really people but that is the subject of another article.

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