Lean and Mean Litigation Blog

Exhibit No. 1 ON WHY OUR PROFESSION HAS LOST ITS WAY

I don't know why others went into the practice of law but here is why I did.  It provided me with a career that included intellectual stimulation and challenge, while at the same time would, if I worked hard, provide me decent remuneration.  My parents were both professionals.  So I came to appreciate and respect the non-monetary pleasure that they derived from helping people with their intellectual abilities - from well heeled businesspersons to school teachers to laborers.

This was the ethos of a professional that I understood.  The primary driver was helping clients.  The pleasure was in employing your intellect to do so.  And the money was something that would come along as a result.  Not necessarily big bucks but enough to live comfortably - very comfortably. 

Granted,  there are and have always been lawyers who made big bucks - sometimes equivalent to their business counterparts.  But those were entrepreneurial lawyers who took risks equivalent to those on the business side.  But when one enlists to be a professional the money should not be the sole driver.

Click here to read an article, "The Bottom Line on Client Analysis", that is further evidence of why our profession has lost its way.  One would think that by its title this article was about how to better serve one's clients through better analysis.  But like the book in the now famous Twilight Zone, entitled "To Serve Man", you are in for a surprise.

It is an article discussing techniques for how firms - presumably the larger firms - can, like their accounting and management consulting counterparts, better analyze which clients or practice areas are providing them the most "realization" - e.g. which clients or practice areas are the most profitable. Presumably this is so the firm can weed out the less profitable clients, practice areas, or lawyers.

What is going on here?  Lawyers are now striving to adopt business models similar to our "counterparts" in accounting and management consulting?  Since when were they ever our counterparts?  We are lawyers. We are not accountants and we are not management consultants.  Or are we?  I hope for our sake, for the sake of the profession, and for the sake of our country that this is not true  [yes I do believe that the private attorney tradition of our country distinguishes it above every other democracy in the world].

If a client retains a law firm at an agreed to level of compensation acceptable to a particular lawyer in that firm and then pays the bills, what else need be analyzed?

What is going on here is that those running law firms and those that advise them are turning the practice of law into a business to the exclusion of everything else.  Clients are no longer individuals in need of our professional assistance.  They are pieces of meat that law firms engorge themselves on so that each firm can keep up their profits per partner.  Likewise, the most valued lawyers within firms are no longer the high quality professionals - rather the most valued are those whose "realizations" are the highest.

This is yet another example of the New Yorkification of the practice of law. "Bonfire of the Vanities" on steroids.  Some day clients - big and small - are going to realize that the only outsourcing they need do is to make sure that they outsource their legal work to firms who are no longer trying to keep up with the New Yorkers.  It will be a better day for clients and for the practice.

Lean and Mean Blog's Author Starts A Series Of Articles In "Corporate Counselor" Discussing How To Better Manage Litigation Costs

Time to blow my own horn a little.  Starting in this May's issue of The Corporate Counselor, an ALM newsletter subscribed to by approximately 4,000 general counsel across the country, this blog's author will  commence a series of articles detailing the basic principles that general counsel can and should employ to better manage their litigation matters - from both a cost and end result perspective.   These principles, of course, also apply to anyone who has to hire litigation counsel.

Rather than being comprised of nebulous fad concepts [e.g. RFPs (in the end merely a gussied up litigation budget) fee caps (a scary proposition for any client and really just another litigation budget under a different name)]promulgated by legal consultants who have never stepped foot in a courtroom or hollow claims about lean litigation practices by law firms whose current business model is based upon making profits off of having to increase the billable hours they charge their clients, the principles that are articulated in this series are based upon a simple common sense understanding of what litigation is all about and what general counsel (or anyone for that matter) need to do in order to better manage their litigation matters - regardless of the size or purported complexity of the case.

The principles discussed are ones derived from my over 29 years of in the trenches experience litigating with and against some of this country's best trial lawyers - where I have seen it all - from efficient best practices to bloated over-litigated efforts.

The first article discusses who to hire as outside litigation counsel and how to properly set up your litigation team [click here for full article]. It essentially conforms to my view that the best litigation teams are small - one to five lawyers - no matter what the size of the case in terms of dollars and that unless you have a commitment from the senior lawyer that you are hiring to head up the case that your matter is going to be one of their top one or two priorities then hire someone else - you don't want or need a high profile hit and run litigator heading up your case - you need someone who is going to live your case and treat it with the importance it deserves.

Expert Deposition Taking Made Easy

A good friend of mine (one of the finest complex litigators I know) and I sometimes joke that  you could, if you wanted to, send a first year associate to take an expert deposition and get just about as good results as a senior partner - as long as the associate followed some key rules [several of which many attorneys constitutionally find hard to accept].

Hourly Lawyers Get Paid Per Diem - Contingent Lawyers Get Paid Perchance (Why You Should Always Incorporate Contingency Into Fee Arrangements In Cases Where You Are A Plaintiff)

There is an old saying amongst plaintiffs' lawyers -- "Defense lawyers get paid per diem, plaintiffs' lawyers get paid perchance."  This ditty carries with it a powerful economic truth  - hourly lawyers get paid no matter what while contingent lawyers get paid only if the case produces a positive result. 

Anyone contemplating bringing a case as a plaintiff, should pay heed to this truth - even large corporations with large potential recoveries.   I have already written on why law firms - particularly large firms - should incorporate contingency ("Contingency 101 - For Large Firms" published in ABA Section Litigation Magazine "Tips From The Trenches" Column click here - as long you are an ABA member), but it  is also in the interest of every client or general counsel who is considering bringing a lawsuit, because there is an urgency created by the economic incentive of contingency that beckons making it a part of your fee arrangements with your counsel.

Criminal Trial Lawyers are From Mars, Civil Trial Lawyers are From Venus (A Lesson in Why They Sometimes Must Treat Cross Examination Differently)

The headline in the Chicago Tribune read, "Lawyer Puts on Clinic for Colleagues."  It then went on to describe how one of Chicago's top criminal defense lawyers, over the course of his still on-going six day cross-examination of one of the government's star witnesses in the Rezko political corruption trial, was wowing some of his colleagues with his cross-examination prowess.

The article interviewed several lawyers who had come by during the six days.  It detailed various examples of how he had, over the course of the first six days of his cross-examination, scored points - showing that the witness, an admitted drug abuser/user while the key events were unfolding, didn't always have such a great memory.

An important point and one that certainly required full exposition to the jury.  The article also noted that on numerous occasions the defense lawyer had caught the witness in inconsistencies and misstatements [click here for full article].  These too are all good things.

First - a few disclosures. I have never tried a criminal case.  I have not attended this trial, and I am basing my comments solely upon the newspaper account.  Perhaps the article did not report other points that have been brought out during the cross-examination other than the fact that the witness had a bad memory. 

The lawyer conducting this examination is truly one of Chicago's finest criminal defense lawyers. So this in no way is intended to second guess what he is doing.  In fact, I am sure that he is putting on the best darn defense that is possible under the circumstances.

But what struck me most in this article was not the descriptions of cross-examination prowess displayed by him.  I would assume nothing less from an attorney of his caliber.  Rather, what struck me was that the cross-examination had lasted six days and was still going.  The article noted, in passing, that the length of the cross-examination was likely a strategic move to telegraph how central this witness was to the government's case  - even though there were numerous other witnesses and evidence that government intended to present.

But the article also related that at one point - when the witness had given some push back to the defense lawyer - the judge admonished the witness to not engage in conversation with counsel because, "This is your third week of testifying, and at the rate we're going, you will still be on the stand in May." The government lawyers probably cringed a little when the court admonished their witness in front of the jury, but one has to wonder whether some jurors were also thinking - "yeah when is this examination going to end."

No doubt criminal defense lawyers have to function in a different universe [or at least a different planet] and maybe that is the salient point for us civil trial lawyers to derive from this article. Clearly, if this were a civil case, it would have been settled long ago.

This witness also wore a wire - recording very damaging conversations against the defendant.   But this criminal defense lawyer has no choice. His client refused to agree to a plea, so he must plow on doing the best he can with what he has.

So under the any port in the storm theory, he has to hammer as long as he can on the witness' drug use and faulty memory because this may be the only high point in the trial for his client's case - hoping that this will be the jury's last impression of the witness and that he can thereafter convince the jury that he ripped apart the core of the government's case. 

As an aside, I doubt it.  All the government has to do on redirect is replay several of the taped conversations and establish that what was said during these conversations was, quite obviously, not dependent upon the witness' memory.  Moreover, there is the problem of the other witnesses and evidence.

So while the article reveled in this lawyer's undoubted cross-examination prowess, the back story was really about what a great criminal lawyer does in desperate straits.  Using his courtroom prowess to essentially filibuster the government's case because, quite frankly, the deck he has been dealt with - the overwhelming evidence against his client - requires that he do something - anything.

Which brings us to the civil side.  Whenever I have seen this tactic used by lawyers in civil cases - particularly defense lawyers - it has always back fired - jurors tune out, turn off and eventually get angry at the side who is prolonging their stay in court. Or to put it another way, you don't want to be the lawyer responsible for making your jury feel like it is waiting for Godot.

As one of my good friends and one of the finest civil trial lawyers I know once related to me - his longest cross-exam in his thirty year career was two hours - most were 30-60 minutes.  This from a lawyer who has tried cases involving nine figure amounts.

That has been my experience too.  Float like a butterfly sting like a bee.

In the end, this story brings home how different is the world of criminal and civil trial lawyers.  Those of us on the civil side must conduct disciplined and short cross-examinations. This is not to say that criminal lawyers don't follow the same cross-examination questioning techniques - those are the same no matter what.  But criminal defense lawyers have to do whatever they can with what they have got. So if that means spending two weeks cross-examining the government's star witness then that is what has to be done.

In some ways it sounds like fun - for those of us who like nothing better than conducting a good cross-exam, being able to do two weeks worth while furthering rather than hindering your client's cause would be like a vacation in a fun park.

The Two Most Important Questions to Ask During A Discovery Deposition [Part I]

Many lawyers approach discovery depositions of hostile witnesses as if they are cross-examining at trial - fearful to ask open ended questions because the witness may give a "bad" answer that might hurt their side's case. This is particularly true of young lawyers who are fearful of being accused of supposedly placing harmful evidence in the record.   What a big mistake.

A deposition is the time to get the bad news out.  There is a reason why it is called discovery.

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.  Draw them out and blossom them as fully as the witness is willing to go.  Make sure that you carefully dissect every part or premise of a "bad" answer and make sure that the witness has told you everything and anything about each individual component upon which the answer is based.  See how far they will go and take them there.

The only time that one should treat a deposition of a hostile witness as if it is a trial cross-examination is the deposition of a third party witness who is not within the court's subpoena jurisdiction and who you know will not come to trial or a witness who for some other reason may not be available at trial.

So here are two questions that should be asked often during a hostile witness discovery deposition: "Why?"  and "Is that all you have to say about this?"  Open ended questions that all of us have been taught to avoid at trial.  And for the most part they shouldn't be asked at trial.  But during discovery, they are all important if you want to know what the other's side's case is about and better prepare for it.

It is this simple - when do you want to hear the other side's best story - at a discovery deposition, in an affidavit filed with a summary judgment brief or worse yet, at trial? 

Deciding Who To Depose [Part I]

Today's post is about deciding who should or should not be deposed during discovery.  Most lawyers will look at the written discovery (interrogatory answers provided by the other side identifying who may have information about the facts and the other's side's document production) along with information provided to them by the client and then depose anyone who has had any connection to the case whatever.

The etiology of this practice has, in part, to do with the fact that, for years, many defense practitioners had virtually unlimited budgets that allowed them to leave no stone unturned.  In turn, this became the fashion for all lawyers - if it It was good enough for the "big/top dog" law firms to leave no stone unturned it must be a "best practice."

Taking lots of depositions may also be a way to give young associates training in examination techniques in a no harm no foul situation where they get to take the "less important" witnesses.  But I personally question how this does the trick other than allowing a young lawyer to get over the yips of asking a witness questions.  Presumably a good trial practice course can provide this experience and more - and afterwards the associate can conduct meaningful depositions.

Taking every deposition under the sun may also be due to practicing out of fear - the fear of a surprise witness coming out of the blue in an affidavit in connection with a summary judgment motion or worse yet at trial.  A we all know, the practice of defensive medicine has caused medical costs to balloon.  The same can be said for choosing who you depose based upon fear.

Not being surprised is a valid concern, but deposing everyone connected with the facts is not the answer.  Why?  Because doing so results in numerous meaningless depositions being taken and allows one to avoid focusing, early on, on what their case is about and what they need to do to get it prepared properly.

Not only is this a wasteful practice that unnecessarily increases litigation costs, in many instances it is a bad litigation strategy.  In short, one does not need to and should not depose every possible witness in order to avoid being surprised.

Rather what is required is a focus on what your case is about, how it may look at trial, how you want it to look at trial, and what you need to do in order to get there.   Most lawyers don't engage in this all important analysis until after discovery is completed. Their refrain?  "How can I know what my case is going to look like until discovery is completed and every witness is deposed?"  The lazy approach, a lame contention and a very bad practice.

Rule No. 1 in developing a deposition program - you must have a clear conceptualization of what  you want your case in chief to look like at trial and you also must anticipate what you believe the other side's case is going to look like.  If you don't, then you are on a rudderless ship that will flounder aimlessly through discovery.  How can you possibly know what to ask if you don't have a clue (1) what you want your case to look like at trial and (2) what you believe the other side's case is going to look like?

Only with a clear idea of what each side's case is going to look like at trial can you  develop a meaningful deposition program.  How to develop your best case story and anticipate the other side's best case story has been the subject of published articles that I have previously written (which you can find at my web site) and will be the subject  of future posts.

Once you have done so, then you must place the potential witnesses into various categories:

(1) witnesses controlled by the other side that you believe are going to be key witnesses for you and whom you need to depose prior to trial;

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

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

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

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

(6) witnesses currently controlled by you who provide needed testimony and who will be available at trial.

Once you have placed witnesses into their respective categories then you have to critically analyze on a witness by witness basis why you need to depose a particular witness.  This analysis will be the subject of a future post.

One Tack On Avoiding Surprises In A High Stakes Matter - Get A Cosell

In Monday's post I ended by discussing how a top law firm and a sophisticated client had sorely missed the mark in not settling a weak case at a more opportune time - before the jury verdict that nailed them with enormous liability far beyond what they had been offered to settle prior to trial.  We all have seen this happen. 

Afterwards, the party nailed and the Wall Street Journal may grumble about the arbitrariness of the jury system and our civil justice system as a whole.  This may make them feel a little better in licking their wounds, but it does nothing to change the result in their case.  In other words, regardless of your views on the state of our civil justice system, when you are confronted with a high stakes matter, you better not count on any sea changes happening to our legal system to bail you out before your case concludes.

As much as I love trying cases, the advantage that our open discovery system provides is that if both sides' lawyers know what they are doing [e.g. they have sufficient experience preparing and trying contested matters], then a case should not go to trial.  When a civil case actually goes to trial, it usually means that one side's team [the lawyers, the clients or both]  has made a big miscalculation.  But errors are also made in prolonging litigation past the point where it may be the most advantageous to settle for a particular side.

This has lead me to conclude that in every case there lurks on each side something that exposes the litigants to the risk of sorely missing the mark when it comes to evaluating the real prospects of their case - the inability to objectively evaluate what is happening to them. 

So here it is - what can help you avoid getting shocked with an unexpected surprise - at least in your high stakes cases?  You need to hire an independent counsel - not involved in the heat of battle as counsel of record - to view  and analyze the case from the beginning and as it progresses - someone whose job is to "tell it like it is."

Putting aside that it is not in their economic self-interest to cut short a big new piece of litigation and assuming only the purest of motives, many litigation counsel may be more reticent to be the bearer of bad news at the outset of a case for fear that the client may interpret this as a lack of guts or litigation savvy.  Moreover, as they get more and more involved in the case, the trait that makes litigation counsel as good as they are - the belief that they can win - can get in the way of an objective assessment of the case's progress.  We all like to think that we can be objective, but there is not a one of us who hasn't at least once fervently believed in a case only to be surprised at the end result.

Thus, from the beginning and as the case progresses, while both outside counsel and the client get embroiled in the heat of the battle, it is worth the incremental cost, at least in high stakes cases [and maybe for companies that have high case volume], to have an independent counsel evaluating whether particular strategies are actually winners and whether the case is heading toward a successful conclusion or should be settled.

Many a party would have fared far better in many a case if they had someone independent of the litigation providing them with a cold dose of reality.

Knowing When To Fold Em'

"Financial Executive", a subscription only newsletter for, you guessed it, financial executives, featured this blog's author on a subject that many defendants and the lawyers who represent their companies would do well to better understand when defending a case- what to do, if, after your initial case analysis, you conclude that your case is weak?

Alas, "Financial Executive" being a subscription only newsletter, insisted on charging $1200 to receive licensing rights to obtain a copy of the article to post here.  So, instead of paying for a reprint of my own ideas, I thought I would just summarize them below.

When you conclude that your case is weak you have one of two choices (1) litigate with the hope that you might score some hits and lower the value of the plaintiff's case or (2) settle early.  From my experience, the better practice when you are defending a weak case, even taking into consideration the time value of money, is to settle early.   

If litigation counsel is working on an hourly basis, it may not be in their economic self interest to settle even a weak case early but it is in their client's best interest.  Moreover, litigation counsel may be weary of telling a client that has just hired them the bad news.  All the more reason why clients and their defense firms should consider some form of contingent fee arrangement for bringing in an early and favorable settlement [top litigation boutiques have been doing this for years and their clients have loved it - but this will have to be the subject of another post].

Settling a weak defense case early flows from the general rule that all good litigators follow - don't knowingly advocate losing positions - it is a waste of time and money.  Sure - there are tough defense cases where it may be in the client's interests to take the risk of litigating to score some hits in order to lower the plaintiff's expectations. But this should be done with eyes open, only after a full discussion of the risks and potential rewards.  It should not be the presumed course of action.

When you have a weak case - where the facts and the law are stacked against you -  don't believe in miracles.

If you settle a weak case early, in addition to saving litigation costs you will invariably pay less in settlement.  The plaintiff and its counsel will have less skin in the game and will more likely than not be willing to settle for a lesser amount.  It is only natural.

Sounds simple doesn't it?  Almost obvious.  But more times than I can count I have seen numerous defendants inexplicably continue to litigate obvious losing causes and end up paying far more in the end - both in litigation costs and in settlement or judgment.  In one of my cases a defendant [the name has been withheld to protect the living] went to trial when it could have settled for 1/30th of what was the ultimate judgment after the trial.

I always wondered why they - top litigators from a top firm and a sophisticated client - had made such a poor calculation [and mind you, there were a lot more zeros on the amount that they ultimately paid in settlement].  That will be the subject of this week's mid-week post this Thursday - In high stakes matters, how to better protect against getting skunked like the defendant above.

Litigate Without Ego - The Zen of a Winning Litigator

Too many lawyers think that they must be all knowing about everything under the sun.  A vestige of primal head butting.  God forbid that one ever appear to know less than their opposing counsel - about anything - be it law related, litigation related or the price of eggs in China.  After 29 years, I am convinced that it is part of the psychopathology that attracts people to the law.

Who hasn't attended or read a deposition transcript where counsel for both sides spent more time arguing over needless issues such as whether an objection was well grounded?  - wasting valuable time and energy - attempting to one up each other in some peripheral battle of wits/egos.

I, on the other hand, aspire to employ the "Columbo" approach to law when dealing with opposing counsel.  I don't care if my opposing counsel thinks that he or she is smarter than me.  He or she probably is - particularly if they are younger than me - given that law school admissions have only gotten tougher over time. 

In fact I prefer if my opposing counsel believes they are smarter than me.  I really just don't care.

Why?  Because no matter how smart they are, no matter how great they are or think they are as a litigator/trial lawyer, I have the comfort in knowing that I know how to prepare and try cases - even very complex cases, and that rather than needing to be an all knowing genius to compete with any opponent [and I mean any] all one need be is (1) bright and (2) a ditch digger.   

So, for example, if my opposing counsel objects to a question I pose at a deposition, I listen to what they have said.  If it is well grounded, I promptly repair my question to eliminate the objection - sometimes even thanking opposing counsel.  Why not?  They just gave me the opportunity to repair my record.  Remember, I don't lay claim to being perfect and all knowing. I just want to get it right. 

Moreover, displaying the ability to promptly change a question in response to a well made objection sends another important message to opposing counsel - I have done this before in court - something that, sadly, all too many lawyers who currently call themselves litigators cannot lay claim to [but this will be the subject of a future post].

If the objection is not well grounded, then I just ignore it and ask the witness to answer the question as posed. If opposing counsel tries to bait me into an argument, I don't take the bait.  If they persist, I may calmly ask what is the basis for their objection [again, maybe I have missed something].  If  I don't buy their explanation, then I politely say "I don't agree" - no more no less- and turn to the witness and ask that the question be answered.  If opposing counsel persists, I then ask whether they are instructing the witness not to answer.  This usually ends the discussion. 

In short, I don't need to prove to them I am right by arguing with them and thus I don't argue with them - saving my arguments for when it counts - in court.  I communicate my confidence in my position through my conduct - in not being baited into wasted energy and time - and proceeding to the matter at hand - asking the witness the questions I need answered.

Thus, for all you young litigators out there, quit trying to convince your opposing counsel that you are perfect or that you are smarter.  They most likely will be too busy appreciating how smarter they are than you to notice.  Rather, concentrate on getting better at what we all are supposed to be doing - effectively preparing cases for trial.  When you do and your opposing counsel realizes that you can prepare your side's case as best as it can be, you will earn your opposing counsel's respect where it counts - in results.