ADVICE FOR THE YOUNG LAWYER

What’s Your Long Range Plan?

2009-02-21T07:38:00.001-05:00

As lawyers, we are obsessed by the short term - the answers to interrogatories due tomorrow, the deposition at the end of the week, the hearing next Tuesday. But what about the long term? I don’t mean next month or even next year. I am talking about the rest of your life. What legacy do you want to leave behind? To lead a fulfilling life as a lawyer means more than meeting the next deadline. It means having dreams and living for them. If you want to take control of your life instead of letting circumstances control you, consider the following:

Start at the end. When you retire, what do you hope to have accomplished? Let’s take it a step further. After you die, how do you want to be remembered? Do you want to be remembered for billing lots of hours? For the discovery you propounded? Or do you want to be remembered for something more? People remember those who touch their lives. Do you want to affect others, touch their hearts and shape their minds? Do you want to be known for giving back to the community? For your commitment to pro bono? For winning the big case, being a mentor or writing a novel? To be remembered, you have to live a life worth remembering.

Sit down with a pen and paper and write down how you want to be remembered and what you want to be remembered for. Don’t make it long. Try to reduce it to a note card, and tape it to your computer screen or affix it to the refrigerator door. These are going to be your life goals. Always keep them close by.

Dream big. Don’t be afraid to dream big. Where do you really want to be? Don ’t ask yourself where you expect to be or where life will likely take you. Take charge of your life and direct it toward something bigger than yourself.

Develop a plan. Once you know what you want to accomplish with your life, figure out how to get there. Write out a plan of action to reach your goals. I suggest keeping a journal. On the first page, write down how you want to be remembered. On the next several pages, write out what you plan to do to be remembered that way.

Set Benchmarks. Once you have set out a roadmap to get you to your destination, set benchmarks to meet along the way. Where do you want to be twenty years from now? Ten years? Five? Map out how far along the path you want to be when you reach given stages in your life.

Decide how to reach each benchmark. Once you have decided upon short and long term goals, decide what tasks you need to perform to reach each benchmark. If you want to leave a legacy as a leader, what steps do you need to take to assume leadership roles in bar and civic associations? Set manageable goals. Put them too far out of reach and you’re setting yourself up for failure. You’re writing the script of your life. To get that happy ending, the individual acts have to be thought out and achievable.

Check off benchmarks, and make adjustments when necessary. In your journal, keep a record of your accomplishments. Did you get elected to the board of a bar association? Did you get to first chair your first trial? Write it down. Periodically, review your accomplishments and compare them against the goals you wrote down. Did you fulfill them? Did you get close? Were the goals you set realistic? Were they goals you truly wanted to pursue? You may find that the goals you set may need some adjusting. If so, reevaluate your life plan and make changes where necessary.

To make this work, you have to work on your life goals every day. Once you have set down goals for yourself, you have to work every day at achieving them. Some days, you’ll only be able to do something small -make a few calls, maybe read a couple of articles on practice development. But large or small, pluck away at it every day. Don’t lose traction and don’t lose sight of what you’re trying to accomplish.

Live your dreams. At the end of the day, all the goals and dreams in the world don’t mean a whole lot if you don’t pursue them. Live your dreams. Mark off your accomplishments and keep moving forward. Dreams are something bigger than us. They’re more than learning how to draft a motion or ague a hearing. They’re about leaving a mark on this world, making it better, changing things and shaking them up. Figure out what you really want out of life. Have you figured it out? Good. Now go do it.

Keeping Perspective

2009-02-15T17:16:00.001-05:00

When faced with a crisis or a tough decision, it is easy to lose your head and make a rash decision. The trick, as Kipling said, is to keep your head when all those about you are losing theirs. If you can keep your poise, when others cannot seem to keep theirs then you are showing the maturity and character you need to deal with the stress and surprises that litigation brings. Lucky for you, poise is something you can learn.

Challenge yourself. People are afraid to fail so they avoid the tough challenges. Problem with that, though, is that there is nothing surer in life than the fact that you will face tough challenges, and if you have spent a lifetime running away from them you may fall apart when you are staring one in the eye. So, as with everything else, practice makes perfect. Search out the tough cases, the challenging legal issues, the depositions no one wants to take and tackle them all. Sure, you will fall on your face from time to time, much more than if you had played it safe. But it is in the falling that you learn that you can get up again. And it is in the falling that you realize that the falling is not so bad after all.

Make a list of what is important. Sit down, take a pen and a paper and write down the three most important things in your life, that without you would be less of a person for. Your spouse? Your kids? Your faith? Is that deposition coming up on Tuesday on that list? How about the trial at the end of the month? When you are faced with a challenge at work, compare that to what really matters to you. It will help you keep perspective.

Seek help. If you are overwhelmed, do not hesitate to seek advice from others at your firm about how best to tackle a problem. There is probably someone at the office who has tackled the same problem and can tell you how you can do it too. A trick to keeping perspective is to seek the advice of those who already have it.

Take a breath. When faced with a “crisis,” take a breath, take a step back and think through your reaction. You will get through this and chances are you will get through it better if you have a game plan instead of shooting from the hip.

Have an exit strategy. When there is a fire you need to know where the emergency exits are. When a problem lands on your desk you need to figure out how to put the fire out. Sometimes you only have a few minutes to make a decision, sometimes a few hours and sometimes the luxury of days or weeks. Size up how much time you have to react, and plan an exit strategy to extricate your client from the problem at hand.

As lawyers, we are faced with problems all the time. The key is keeping perspective and staying in control so that you can control the problem and not let it control you.

Writing to a Partner

2009-02-06T19:17:00.002-05:00

As an associate, you will receive your share of writing assignments from the partners at your firm. Before you turn in your next assignment, consider the following advice:

Know the assignment. After a partner gives you an assignment, repeat it back to him to make sure you took it down right. Even if you did take it down right, the partner, after hearing his own words read back to him, may realize he gave you the wrong assignment. The “repeat back to me” assignment may be intimidating, but is preferable than coming back several hours later with the answer to the wrong question.

Don’t reinvent the wheel. Another associate may have addressed the very issue you were asked to research. Another associate may have written a letter to a client very similar to the one you were asked to draft. It’s worthwhile to find out whether what you are about to write has already been written. It will both save you time and help you get it right.

Think it through. You are billing the client for your time and the clock is running. It’s tempting to just jump in and start writing, thinking you’ll save the client some time and money. The fact is, though, writing this way is very inefficient. Running off to write something without thinking it through first may result in a lot effort expended but very little accomplished. Before you write, think through what you’re going to write – either in your head or on a pad – plan it out – and then start writing. The extra time spent on the front end will result in time saved in the back end.

Know your audience. Some partners like detailed memos. Some don’t. Some like memos that look like the ones they wrote when they were associates. Some could care less. Talk to other associates. Ask for memos they wrote for the partner and that the partner loved. Study those memos, not for the content but for the style, and emulate it. If you give others what they want, they will be grateful.

Make it easy to read. Partners are busy. Use plain English, get to the point and support it in as few words as possible. Consider using bullet points or charts to state the facts or make your arguments. The less time and effort the partner has to spend reading your memo, the more time and effort they will have for everything else.

There are no rough drafts. What you submit to the partner has to be perfect. Proofread it, proofread it, and proofread it again. You do not turn in rough drafts. Assume the partner will turn it over to the client and draft it accordingly.

Follow up. After you turn in your assignment, follow up with the partner. Does she need anything else? Additional research? Does she want you to revise your work? Follow up and make sure everything was done to her satisfaction.

Good writing takes time. Take the time to learn the assignment, to tailor your research, to answer the right questions and answer then in a style and manner the partner wants. Do this consistently, and your writing will get noticed.

The Pros and Cons of Being a Litigator

2009-01-31T16:33:00.003-05:00

Before I became a litigator, I had a lot of preconceived notions of what litigators do. Some were accurate. Most were not. Before going down the road of litigation, you need to evaluate both the pros and cons.

First, the bad news.

Litigation is adversarial. If you hate conflict, don’t expect to enjoy litigation. Your client is either suing someone or being sued. There is no love loss here. The parties often expect their attorneys to be aggressive, sometimes overly so. Expect opposing counsel to come gunning for you.

Litigation is driven by deadlines. There are deadlines for everything. Answers to interrogatories, requests for production and requests for admission. Expert reports and expert depositions. Discovery cutoffs and looming trial dates. Multiply this by 20 to 50 cases, and it’s a surprise you’re doing anything but extinguishing the next fire. Attorneys who are in short supply of case management skills may find these deadlines dictating their practices to them.

Litigation is not like television. Some of us went to law school, in part, because of popular lawyer shows - L.A. Law, The Practice or Law & Order to name a few. It looked pretty cool on television, didn’t it? But art does not always imitate life. The real practice of law is not glamorous. Most of your time is not trying high profile cases. More like it, most of your time is spent in front of your computer, doing research, drafting memos and responding to e-mails. In short, litigation may not live up to your expectations.

You never stop litigating. If you’re conscientious, it’s hard to leave the work at the office. At home, you wonder if you should have asked that extra question in deposition. When you’re out, you worry about whether the motion was filed. You even find that the conversations with your loved ones have turned into cross examinations. It’s hard to leave it at the office.

You will never know enough. It takes time to learn the practice well enough to feel comfortable in your own skin as a litigator. For some it takes 5 years. Others, 10 years. Some never reach a comfort level. It is a long process. You don’t become a litigator overnight.

A lot depends on instinct, and instinct takes time. A lot that is asked of us as litigators requires quick decisions - quick decisions at depositions, at hearings and at trials, to name a few. To make those decisions, we need to rely on our instincts, and instincts take time to develop. As a young litigator, you will second guess yourself a great deal. Only experience puts a stop to it.

Now, the good news.

There’s never a dull moment. Yes there is research to do and memos to write, but litigation is fast-paced and you will get swept up in it. You will plan how to beat the other side and you will use all your wits and heart and energy to see that plan through. All along, surprises and challenges will pop up and you will have to deal with them. It can be a bit terrifying but it certainly isn’t boring.

It’s like a good chess match. The other side wants to win. So do you. He’s making all sorts of moves to take your king, while you defend it, simultaneously trying to take his. For every move there’s a counter move, and nothing is as it seems. You like a good chess match? You’ve come to the right place.

Sometimes, it is like television. Yes, you spend an awful amount of time in front of the computer. Your office is your home away from home. But sometimes you get to venture out. Sometimes you destroy that expert in deposition. Sometimes you knock it out of the park at the hearing. And sometimes, yes sometimes, you actually get to try a case, and, get this, win. Sometimes you are Michael Kuzak from L.A. Law.

It improves with age. Like fine wine, being a lawyer improves with age. The longer you practice, the more your skills improve, the more law you learn and the more comfortable you become with the practice of law. If you get past the fear and uncertainty of the first few years, you will enjoy the fruits of your hard work.

When it comes to litigation, there are good things and there are bad things. If you can learn to enjoy the good and not linger on the bad, you may just make a career of it.

Building a Better Lawyer

2009-01-25T13:08:00.003-05:00

As a young lawyer, you owe it to yourself to become a better lawyer - to constantly improve your skills -whether its your writing, your research, taking a deposition or arguing a motion. With an ever more competitive work force, getting by is a sure way of falling behind. To stay ahead of the curve, consider the following suggestions to build yourself into a better lawyer.

Evaluate your strengths and weaknesses. Start by being honest with yourself. Sit down with a pad and pen, and write down a list of your strengths and a list of your weaknesses. Don’t be too hard on yourself, and don’t be too easy.

Address the weaknesses. Pick one or two of the weaknesses, and commit to working on them for the next year. Set realistic goals on how you can overcome your weaknesses and commit to achieving those goals. Is your writing just average? Set realistic goals on improving it, such as reading grammar and style books, taking a writing course or getting an article published.

Build on the strengths. Pick one or two of your strengths, and commit to making them even better. If you want to set yourself apart from other lawyers, don’t just be a strong writer, be a great writer. Don’t just be good at taking depositions, be great at taking them. Consider taking CLE classes, reading books and thinking outside the box for other opportunities.

Find a role model and emulate him. To get better, you have to find better attorneys and do what they do. Is there an attorney you admire at your firm? Does he take killer depositions? Is she a great rainmaker? Study them. What do they do that you’re not doing? Just as importantly, what don’t they do, that you’re doing? Whatever they’re doing, they’re doing something right. Figure out what that is and copy it.

Read others’ transcripts. Read the hearing and deposition transcripts of other attorneys. What do they tell the judge? How do they argue their clients’ case? What questions do they ask witnesses at depositions? What questions don’t they ask? If you want to improve your oral advocacy skills, you need to read how others do it. If you want to take a better depositions, read how others take theirs. And don’t limit yourself to reading the transcripts of just the top partners. Read the transcripts of as many attorneys you can get your hands on. Study the different styles. You can learn something from every attorney in your office. If nothing else, you can learn how not to do things and what approaches are not particularly effective.

Read others’ writings. In addition to reading others’ transcripts, read others’ writing. Read other attorneys’ briefs, memos, motions, letters to clients and other such documents. Study the attorneys’ style, word choice, the arguments they make, how they make them and ask yourself if the writing convinces you, moves you, changes you. See what works and what doesn’t, and strive to emulate what you feel works and avoid what doesn’t.

Study others’ resumes. Visit the web sites of other firms, pull up the profiles of their attorneys and study their resumes. See what they’ve accomplished. What organizations do they belong to? What have they’ve written? Where have they spoken? Attorneys’ resumes show you what goals they have achieved. Looking at others’ resumes makes you think what goals you want to set for yourself and some ideas of how to achieve them. Perhaps you can get ideas of publications that accept articles from attorneys, seminars to speak at or organizations to join.

Keep going to school. You’re never too old to learn something new. Don’t take the minimum number of CLE credits you have to take. Consider attending an extra seminar or two during the year. If you, as so many of us, don’t have the time to attend more seminars, consider listening to CLE tapes in your car.

Set goals and strive for them. Ask yourself the question, "Where do I want to be five years from now?" Do I want to be at the same firm? Do I want to be a partner at the firm? Do I want to be considered an expert in a particular field of law? Ask yourself where you want to be, devise a plan on how to get there and execute it.

Never be satisfied. Never rest. Never be complacent. Never be satisfied with what you’ve accomplished. As you stand still, others are running past you. They’re getting better as you stay the same. Eventually, they will pass you and others will pass you, and your great skills, by comparison, won’t be so great anymore. Strive for more.

Making the Most of Your Mentor

2009-01-10T20:21:00.002-05:00

So you’re lucky enough to have a mentor. Now what? He’s no good to you if he’s a mentor in name only. Consider the following to build a lasting, meaningful relationship with him.

Meet regularly. Make the effort to meet with your mentor on a regular basis. It’s easy for your mentor to get too busy. It’s easy for you to get too busy. Schedule regular meetings to discuss the cases you’re handling and the issues you’re tackling. Consider meeting once a month, or more, for breakfast or lunch to get together and talk.

Communicate regularly. Aside from pursuing face-to-face meetings, call and email your mentor. Email is a great way to get much-needed advice. You can send your question when you find the time and your mentor can answer it when he finds the time.

Network together. Ask your mentor to accompany you to local bar functions where, due to his years of practice, he likely will know several attendees to whom he can introduce you. With your mentor at your side, you never have to go to a bar function again and feel like you don’t know a single person in the room.

Ask your mentor the hard questions. Your mentor is worth his weight in salt because he likely can answer your hard questions. Questions about ethical dilemmas, case strategies and office politics. Ask him. His experiences makes him equipped to answer them.

Seek his wisdom. Your mentor has a lot to teach. Not only about the law and the practice, but about family, about right and wrong and about the choices life presents us. Seek out his perspective and beliefs about the big things. You may learn something more important than how to take a deposition.

Find out his life story. We are a composite of our experiences. Learn your mentor’s experiences - the life he’s lived, the challenges he’s faced and what he’s done to get to where he is. Learning what challenges he faced and how he faced them can give you insight on how to face your own.

"I’m with him." Your mentor can give you access - to corporate and bar functions, to sitting on committees and boards and to meeting the people you want to meet. For example, if you’re looking to get involved in an organization, possibly pursue a leadership position, your mentor can help you get your foot in the door.

Ask for a favor. Sometimes you’ll find yourself in a tight spot and you’ll need someone to help you out. Maybe you’re not happy at your job? He may be able to recommend you to a friend who is looking for an associate.

Repay the favor. Just as you have needs, so does your mentor. Repay the favor and help your mentor with his needs. Does he need help with an article he’s writing? With a fundraiser his firm is sponsoring? With a legal issue he’s struggling with? Your mentor will appreciate your help and will be more willing to help you the next time you ask.

Start mentoring others. As a young attorney, you may think you have not amassed enough experiences to mentor someone else. You’re wrong. If you’re a mid- level associate, mentor an entry level associate. If you’re an entry level associate, mentor a law school, college or even high school student who has a whole host of questions.

A mentor is only good if he is, well, a mentor. That takes time and commitment, on his part and on yours. Prod your mentor to do his part and do yours by helping him when he needs a hand. Because in the end, mentorship, like any relationship, is a two-way street.

Why Do I Need a Mentor?

2009-01-04T13:35:00.002-05:00

Everybody talks about mentoring these days. Firms have mentoring programs. Bar associations have them. And they come in all forms, including e-mentoring. But do they work? Why, you ask, do you need a mentor? The better question is how you have survived without one. What are the benefits of having a mentor? The following are a few.

You get to learn from others’ mistakes. As a young lawyer, you’re going to make your share of mistakes. Sometimes, the fear of making a mistake can be paralyzing. How do you avoid making them? Talk to a mentor who has made them and learn from his mistakes. In the practice of law, there are many potholes to fall into. Your mentor can help you steer clear of them.

Mentors take the mystery out of it. Countless times each day you will be called upon to make decisions. Sometimes, you’ll know what to do. Many times, you won’t. Usually, your mentor will. Mentors can take the mystery out of what to do and what not to do.

You get advice that works. Advice is only good if it works. Mentors can tell you what they did when confronted with the same problem. They have tested their theories, and they can tell you first hand, from their own experiences, what works and what does not.

You know someone has your back. Being a lawyer can be lonely. Sometimes you feel it’s you against the world - against the opposing party, against opposing counsel and sometimes against your own client. It’s good to have someone looking out for you, watching your back.

You learn the rules of the game. There are a lot of rules that come with being a lawyer, most unwritten. How do you find out what these rules are and how to play by them? You learn from someone who already knows them. A mentor can teach you the rules regarding such things as how to argue a motion or how to deal with opposing counsel, and he can help you comply with

these rules rather than accidentally trip over them.

You have a sounding board. As young lawyers, we have a lot of questions that need to be answered. We have conflicts to resolve, problems to face and issues to address. We have ideas, sometimes based on fact, sometimes based purely on instinct, on how to confront these issues. Instead of simply trying out our hypotheses, to see if they are right or wrong, it is worthwhile to sound them off someone who has confronted the same or similar issues and can listen to your approaches, help you weigh the pros and cons and assist you in making thoughtful, rationed decisions.

You get a backstage pass. Mentors pull back the curtain and take you where the action happens. They take you to meetings with clients, conference calls to discuss strategy and access to their own thinking and reasoning. Mentors give you access to their legal worlds, where the big decision makers make the big decisions, and you’re their to witness it, experience it, learn from it.

You get connected. Mentors can help you get plugged into bar and trade associations. They can introduce you to people, get you involved in committees and assist you in your ascendancy to power.

You learn about the Firm. You want to know how your firm works -how it really works? Who does what, who expects what, what makes the partners happy and what their pet peeves are? Your mentor, someone who has been at the firm and who has seen first hand what kind of lawyers stay and which ones go, and of those who stay, which ones prosper, can provide you great insight on how to get along in the firm.

You learn how to network. To develop clients, you must develop relationships with potential clients. Before you can develop a relationship with someone, you have to meet him. How do you do that? Do you go to a trade group or bar meeting and simply walk around, stick your hand out and say hello to whomever you see? A much better approach is to go with a mentor, someone who knows that organization and the people involved. Someone who can introduce you to others and that can help you get your foot in the door.

These are just a few reasons to get a mentor. Mentors help you cut through the red tape, the self-doubt and your innumerable questions. Take the time to find a mentor and start working on a relationship that will affect, for the better, the rest of your career.

Why Do I Need a Mentor?

2008-12-27T10:34:00.010-05:00

You get connected. Mentors can help you get plugged into bar and trade associations. They can introduce you to people, get you involved in committees and assist you in your ascendancy to power.

Graduation Speech

2008-12-22T18:35:00.007-05:00

The following is the speech I delivered to the Honors College at Florida International University at their recent graduation ceremony:

I hold in my hand a blank envelope. It was on an envelope similar to this one where much of what we know as FIU was conceived. 22 years ago, Modesto "Mitch" Maidique became President of a small South Florida university with about 6,000 students. He had never been the president of a university or college. In fact, he had no experience in university administration. He had taught at Stanford and was a successful entrepreneur. But this was a new challenge, with new obstacles. He needed a new paradigm. He did not go out in search of one. He created his own.

On the back of an envelope like this he wrote out his dream for FIU. Unlike his namesake, it was not a modest one. It was not simply adding a department here or improving student activities there. It was so much more than that. On the back of an Eastern Airlines envelope, he laid out his vision for the university, listing his goals:

• transforming the school into a research powerhouse
• reaching $100 million in research grants
• securing an endowment of $100 million
• seeing 100 doctoral students graduate
• creating a law school
• creating a medical school
• creating an architectural school
• creating a 1-A football team

Those big ideas crowded the back of a regular sized envelope. It took 22 years to make them a reality. This year, he finished checking the last items off his list. And having accomplished everything he set out to do at a university that now boasts close to 40,000 students, he informed us all that he was stepping down. Having fulfilled his dream, his job was finished. And it all started with some notes on the back of an envelope.

Never underestimate the power of ideas. They have the power to transform and to inspire. They have the power to uplift and to change. They have the power to get you out of bed in the morning and face the challenges of a new day. Our ideas, our vision, our dreams – they bring out the best in us, the best in others. They are immortal. Unlike the flesh, they do not die. And without them? As the Book of Proverbs says, where there is no vision, the people perish.
Most, if not all of us, have had big dreams. It is almost as if it is ingrained in our DNA, as if we were programmed to think big. Many of you had big dreams as kids, and in high school and now in college. Maybe it was to run for office or start a charity or write a book. Perhaps it was to start a business or travel the world. I bet your dream was something big. Something that went beyond the mundane and the everyday. How many of you dream of simply going to work from 9 to 5, going home, watching television, and doing it again the following day? How many of you dream of middle management? Of your own cubicle? Of simply getting by? We were meant for so much more.

But sadly, many of us will never pursue our dreams. Many of us won’t even dare utter them out loud, for fear of ridicule, for fear of failure. Well, I am here to tell you it is time to let go of your fears, to let go of what is holding you back. For President Maidique, it started with the back of an envelope. For you, it starts with a blank business card.

Reach under your chairs and you will find 6 blank business cards and a pen. I have a blank card and pen of my own up here. Grab one of the cards and the pen. What is your dream? Your vision? What have you always wanted to do? If there is one thing you could accomplish during your lifetime, what would it be? Write it down on the card. I’m going to do the same. Find a cure for a rare disease? Write it down. Bring fresh drinking water to countries where it is in short supply? Write it down. Pen the great American novel? Write it down. Whatever it is, no matter how big or small, permit yourself to reduce it to writing. Now you have it in black and white. Carry this card in your wallet or purse until you accomplish what is on the back of it. Depending on the dream, it may take months, even years - possibly 22 as in the case of President Maidique.
There, you’ve taken the first step. At Stephen Covey says, you have started with the end in mind. You have given yourself permission to chase your dreams.

And the other five cards, you ask? In the next few days or weeks, hand them out to family or friends, and ask them to do what you just did. Ask them to reduce their dreams to writing. People who want to think big, who have vision, help others think big too.

So, you have reduced your dream to writing. Now what? Develop a game plan on getting from here to there. A roadmap if you will. Odds are others have come before you with similar dreams. Have made similar pursuits. Study what they have done. Research online. Go to the library. Visit the bookstore. Search out and speak with those who have pursued similar goals and aspirations. How did the local author get his book published? How did the local politician get elected? You may be surprised how eager they will be to speak to you. Ask them how they achieved their dreams.

Then sit down, and write your business plan. Spell out, in concrete terms, what tasks you need to perform. And provide yourself deadlines for accomplishing those tasks. If you were starting a business, you would do nothing less. When I prepare for trial as a lawyer, I sit down and write out my trial strategy. Plan it out, task by task. Certain tasks may only take a few weeks or months to accomplish. Some may take years. It does not have to be a fancy, spiral bound plan. The back of an envelope may do. Or a paper napkin for that matter. This speech was planned out on a diner’s paper napkin over a plate of fajitas.

Once you have your plan, it is time to execute. Everyday, dedicate some time to achieving your dream. Some days you will have an hour or more. Some days, you will only have a few minutes. But everyday, do something. Make the most of the time you have. Driving to and from work. Waiting in line at the department store. Brushing your teeth in the morning. Instead of listening to music, or sports radio, or daydreaming, think about the end in mind and how to get there. What is the next concrete thing you can do? Think about what it is and how to complete that task. And write all your ideas down. They’ll come to you when you least expect them. My best advice - always keep a pen handy.

And be prepared to change your plan. Life is not static. Circumstances change. The best laid plans, as they say. Be ready to take detours along the way.

And most importantly, be accountable. Do not shy away from telling others what is on that card. Share it with someone you trust, you love, someone who wants to see you accomplish your wildest dreams, and have that person hold you accountable. Meet with that person once a month and let them know of your progress. Have them serve as a sounding board for unexpected obstacles and issues that arise along the way and share in the joy as you check off the tasks on your plan. Consider keeping a journal, recording your progress.

In fact, one or more of you may have the dream of making the dreams of others come true. For you, I have a suggestion. You may want to create a website or message board or another online forum by which all of you in this room can post what you wrote down on your cards and encourage, and help and hold each other accountable. No one is an island. We all need each other. The bigger the dream, the more help we can use. And if none of you are interested in creating an online forum, I would encourage your professors and administrators to do so. A dream board. Have you ever heard of something that sounds more "honors college" than that?

I also encourage all of you to push forward. To chase what is most important to you. And realize that it is not the destination, but the journey which is most important. There will be challenges. There will be failures. There will be setbacks. Accept them. Embrace them. They mold you, change you, make you who you are. To get through life playing it safe, not stumbling here and there - well, that isn’t much of a life at all. On your death bed, you won’t regret the risks you took. You’ll regret the ones you did not.

And let me remind you that you are in good company. Many FIU graduates have sat where you have. Have had dreams of their own. And they have pursued their dreams and in so doing have made things better in our community, in our state, in our nation, and beyond our borders. They have gone on to become leaders in politics and business. Doctors, and lawyers and teachers. Inventors, creators and thinkers. They have shaped policies and ideas and ways of thinking, and in so doing, have left their indelible mark. They, like you, believed they could make big things happen, and pursued their dreams as if their very lives depended on it. And they, like you, started with an idea.

Let me finish with one final thought. I don’t believe in coincidences. I don’t believe it was a coincidence that I matriculated at FIU 18 years ago. I don’t think it was a coincidence that I was in the inaugural class of the Honors Program, as it was referred to then. 100 of us. And I don’t think it was a coincidence that a student named Ana Correa was in my section. She was bright, and charming and captivating. And I knew that day, the first day I met her, I would marry her. I told my best friend at the time, who was in my introduction to psychology class, that I would. He, as you probably do now, thought I was crazy.

Well, I asked her out. And she turned me down. And I asked her again. And again, she turned me down. Well, the third time was the charm. But I wasn’t satisfied simply dating her. I wanted to propose. Here I was, 19, and she was 18, students in the Honors programs, dating a mere two months, when I asked her to marry me. She said no. I asked again. Again, the answer was no. You’re probably seeing a pattern by now. Well, I asked her a third time, on her birthday, December 28, 1990. She said yes. We got married 3 ½ years later after graduation. We celebrated our 14th anniversary this past June. I was never suppose to come to FIU. My plan was to return to Chicago, where I grew up, and attend college there. Of course, if I had, I doubt I would ever have met Ana. But instead of returning home to Chicago, I stayed in Miami, and came here instead. And it is the best decision I ever made. Not only did I get a great education but I found my kindred spirit. I’m living proof ladies and gentlemen that there are no coincidences.

I also don’t believe it is a coincidence that I am here today, speaking to you. And I don’t think it is a coincidence that you are out in the audience. I suspect I had this rare and flattering opportunity to speak to you as much to help you pursue your dreams as to pursue my own. And I suspect many, if not most of you, were searching for a few words of encouragement, perhaps even permission, to chase down your vision. Here is what my card says - write a novel. A dream that I have picked up and put down for these past 6 years. Maybe giving a speech on pursuing dreams is the kick in the pants that I have been looking for. Maybe hearing my speech is the jump start you’ve been looking for.

As you head out of this ceremony, hold onto that card. Keep it on you at all times. Years from now, it will be yellowed, and dog eared, and wrinkled. Some of the words may be smudged or blurred. You may get new wallets, new purses, new credit cards, new family photos. But keep the card. If you hold onto it, read it regularly and pursue the dream written on it, I can’t promise you will accomplish what’s written on it, but I can promise your life will be all the better for doing so. That I can promise you.

Starting Your Own Blawg

2008-12-13T20:01:00.001-05:00

The ABA recently revealed its second annual list of 100 top legal blogs - or "blawgs." With the dominance of the internet and the public’s demand for instant information, blawgs are becoming more sought after for the latest, most relevant and most practical legal information. You may be the next person to create one of these sought after blawgs.

Before you jump into the blogosphere, count the cost. Those who rely on blogs are looking for the most up to date information. They are expecting regular posts. A monthly post will not do. Be prepared to do posts at least once a week. Preferably daily. Keeping that in mind, you have to ask yourself if you will have the time to juggle work, family and your blog.

I’m celebrating the first anniversary of my blog Advice for the Young Lawyer, http://advicefortheyounglawyer.blogspot.com, where I post an article every weekend on topics and issues relevant to young litigators. Even just a post a week takes time and planning and effort. Have a game plan for your blog in terms of coming up with ideas and finding the time to write about those ideas.

If you conclude you will have the time and energy to keep your blog current, find a niche for that blog. Maybe it’s on jury selection, or on a federal statute or on a fledgling or novel area of the law. Once you have a topic in mind, search to see if someone has beat you to the punch. If so, evaluate whether you want to pick a different theme for your blog or create a different slant on an old theme. When I started my young lawyers blog, I did not come across anything quite like it, so I felt I was filling a need. If there had been several blogs like mine, I may have had a different approach to my own blog.

Once you want to create a blog, create a business plan for you and your firm. What will be the theme for the blog? How many posts will you make? How long will they be? How many contributors will there be? Will this be a joint venture with others at your firm? What will the cost be? There are companies that will create and maintain blogs for you. Of course, you can create and maintain yours for free through Google, for example. Who is your target audience? How will you inform them of your new blog? What will attract them to your blog? Write all this out and approach your firm about your idea. You will need their approval and their support.

Once you have counted the cost, devised a plan and have procured your firm’s approval, it is time to create a blog. My blog is supported through Blogger, sponsored by Google. It is a free service which helps you create a blog and provides you easy step-by-step advice on how to do so, including how to design it and how to make posts. If you want to use this free service, you can go to https://www.blogger.com/start. Other services exist out there. Take the time to do a search on the internet for different blogging services and evaluate which best serves your needs and your wallet.

Once you go through the process and have your blog up and running, you need to let others know about it. I would suggest the following. Spend about a month with your blog, making posts, showing it to a few good friends, and getting some feedback. What works on the blog? What does not? What changes do you need to make? Once you are happy with the layout, with your photo, your personal information, the entries and posts and everything else, you are ready to promote it. Devise a list of e-mail contacts -personal and business contacts - and send them an e-mail notifying them of the blog and providing them a link to your blog, encouraging them to make it one of their favorites. Include the blog address on your business card and notify new contacts about it. Regularly marketing your blog is integral to its long term success and popularity.

Blogging of blawging has become very popular, with more lawyers jumping in the blogosphere every day. If you want to start your own blog, you may find it is easier than you thought. Take the time to plan it out and spend the time to contribute to it regularly. The best of luck.

Improving Your Firm’s Writing

2008-12-06T10:09:00.001-05:00

What do others think about your firm? To answer that question, you must ask yourself, "What do others think about my firm’s writing?" What do judges think when your motions come across their desks? What do clients think when they read your letters and memos? Do they think how clear the writing is? How concise? How simple it is without being simplistic? Or do they think it is muddled and confusing. Do they pick out the grammatical gaffes and wonder whether they reflect not only shortcomings in your writing, but reflect a more systemic problem?

Face it. Everything your firm sends out, every motion, letter, memo and even e-mail, reflects not only upon the author but upon the firm. We are constantly being sized up, and the measure of our talents is often what we write. That being the case, we owe it to ourselves to improve not only our own writing, but the writing of each and every attorney at our firm. Nothing less will do.
But how do you get your lawyers to write better? Many think that writing is an innate talent. Either you are a good writer or you’re not, and no amount of effort can change that. Nothing could be further from the truth. Good writers are not born. They generally evolve from mediocrity. They spend hours learning the rules of good writing and hours more applying those rules to their writing. And along the way they realize that writing is a life long process and that no matter how good their writing becomes, it could always be better.

So your first job is to convince your attorneys that their writing can stand improvement. This will be hard news to break. Most lawyers take pride in their writing, some so much that they view any revisions to their work as an affront to their very person. Tell them that their writing is less than perfect and prepare for bruised egos. However, tell them you must.

It is best to institute a firm-wide writing program where attendance is mandatory by all attorneys - partners, senior associates and junior associates alike. By making everyone participate no one feels that he is being singled out for his poor writing. Furthermore, those who believe their writing is beyond reproach can feel, and will probably openly state, that their participation is wholly unnecessary. But they will be in attendance, and they, ironically, will have the most to learn from the experience.

At the first meeting, preferably a lunch meeting (free food does wonders for attendance), explain the rationale for the writing boot camp:

The writing course will improve work product. Better writing translates into a better work product, which clients will appreciate and possibly reward with additional business.

The writing course will improve thinking. Clear writing promotes clear thinking. If you can express yourself in a clear, direct manner, you will be better able to articulate your thoughts and process them, making you a more effective advocate.

The writing course will Improve efficiency. If everyone writes better, less time is spent revising documents. How much time is spent by senior associates and partners rewriting junior and mid level associate writing? If everyone’ s writing improves, less time is spent trying to make it better.

The writing course will standardize everyone’s writing style. Creating a writing program provides you an opportunity to teach your lawyers the same style rules and in so doing, makes their writing more alike. By making everyone ’s writing similar, your readers come to recognize your firm’s writing, as opposing to an individual ’s style. Furthermore, it makes revisions easier when everyone agrees what writing should look like and how it should be revised.

Once you’ve convinced your lawyers of the benefits of a writing program you have to implement one. What does a successful writing program entail? The following are some suggestions.

Discuss good writing. Explain to the attorneys what good writing is and set out three or four principles you want your lawyers to learn, emulate and live by. I suggest you want your lawyers to:
(1) write plain English
(2) say more with fewer words
(3) write in an active, direct manner
If your lawyers accomplish these three goals their writing will be as good as or better than the competition.

Purchase textbooks. Good writing starts with good grammar. Purchase a grammar book for adults, such as "Whose Grammar Book is This Anyway," written by a lawyer. And who could do without Strunk & White’s " Elements of Style." In addition to purchasing 2 to 3 grammar books for your students, purchase 1 or 2 books on style. Create a "writing" reading list, and have your attorneys read a book a month.

Discuss the textbooks. Meet once a month to discuss the book’s highlights and what the attorneys have learned from reading them. You will be amazed how many grammar and style rules you’ve forgotten, and how many you never learned in the first place.

Develop a firm style. One of the overarching goals is to create a firm "voice" or "style" to which all the attorneys subscribe too. To do so, develop a list of writing rules which most, if not all the attorneys agree should be followed. Many of these rules will be derived from the writing books you will ask your attorneys to read. Once you have all the rules, write them down and circulate them. These will be the firm’s commandments which everyone will be encouraged to follow.

Get Published. Encourage your lawyers to submit articles to newsletters, newspapers and magazines. The process of getting an article published is a great way to develop one’s writing skills. Consider making it mandatory to have all your attorneys publish at least one article a year.

Good writing is crucial to your firm’s success. Develop a plan to help your attorneys write better and get your attorneys behind it. As their writing improves, your firm’s profile will improve too and you’ll be left wondering why you waited so long to institute a writing program.

The Back of an Envelope

2008-11-28T18:22:00.009-05:00

After 22 years, the president of my alma mater is stepping down. Modesto "Mitch" Maidique recently announced that he is stepping down as President of Florida International University. Why? The answer lies on the back of an envelope.

IN 1986, Maidique became president of a small South Florida university. At the time, he was a former Stanford professor and entrepreneur with no experience in university administration. That did not deter him. On the back of an Eastern Airlines envelope, he laid out his dream for the university, listing his goals:

* transforming the school into a research powerhouse
* reaching $100 million in research grants
* securing an endowment of $100 million
* seeing 100 doctoral students graduate
* creating a law school
* creating a medical school
* creating an architectural school
* creating a 1-A football team

Despite being approached by 29 other colleges to be their leader, he remained at FIU. His dedication paid off. This year, he finished checking the last items off his list. Having accomplished his dream, his job was finished and it was time to step down. And it all started with some notes on the back of an envelope.

So many of us went through high school and college and law school with big dreams. Maybe it was to run for office or start a charity or write a book. Perhaps it was to start a business or travel the world. But somewhere along the way, those dreams were pushed aside and packed away like old magazines in the back of the closet. Families, jobs and responsibilities took over. You promise yourself you will pursue them some day - after you finish that big case, after the kids graduate, after you retire. Pushing them further into the distance.

I am going to suggest something novel. You probably have a dream that gnaws at you, that you daydream about while driving to work, that keeps you up at night as you lie in bed, with your arm tucked under the pillow. Take one of your business cards, turn it around to the blank side, and write it down. Coach high school football? Write it down. Teach a law school class? Write it down. Whatever it is, no matter how big or small, permit yourself to reduce it to writing. Now you have it in black and white. Carry this card in your wallet or purse until you accomplish what is on the back of it. Depending on the dream, it may take months, even years - possibly 22 as in the case of Maidique.

Spend the next week or two thinking about how you can achieve this dream. You do not have the time? You probably have more time than you think. When you shower, think about how you will accomplish your dream. When you drive to and from work, think about it. Watch just one less half-hour of television each day and think about it. You have the end in mind - the dream - just think about how to get there. Just as you write a business plan for a new venture or draft your strategy for trial, do the same for your dream. Keep your roadmap handy. Consult it regularly and do not be shy to modify it. The dream will stay the same. The route there, however, may change.

And every day do something to fulfill the dream. Some days you will have an hour or more. Some days you will only have a few minutes. But each day, work toward achieving the goal. You will not get closer to your dreams by standing still. They will not come to you - you have to pursue them.

Many lawyers are dissatisfied with their careers. We get bogged down with the minutia of the daily grind and lose track of the big picture, of the big ideas we once held dear and sacred. Permit yourself to reduce those dreams to writing and chase them. The passion and enthusiasm of the pursuit will permeate everything else you do, and reinvigorate you at home and at work.

Now go find that business card.

Preparing for the Deposition of the Opposing Party

2008-11-22T21:02:00.003-05:00

The most important deposition you will take is the deposition of the opposing party. Getting him to make the right admissions can secure your case and sink his. How do you prepare for it? Consider the following.

Learn everything you can about the opposing party. Do your due diligence and find out everything you can about the opposing party. Do a background search on him to see if he has a criminal record. Do a Google search to see if he has his own website or blog or if he is the subject of a chatroom or has been written about in an article. Do a litigation search to see if he has ever sued or been sued before. If he has, track down any depositions he gave or answers to interrogatories he signed. Do a bankruptcy search to see if he has ever filed for bankruptcy. If appropriate, get his medical, employment, IRS, social security, medicare and military records.

Get all the records and prepare a chronology. Get all the relevant records, whether they be contracts, handwritten notes, or medical records, and put them in chronological order. Then prepare a chronology summarizing these records. Put the chronology and all the records referenced in the chronology into a binder. This will help you gain an appreciation of everything that has occurred and the significance of the various events and documents.

Consider what you hope the opposing party will say. You need to go into the deposition of the opposing party as you would go into any deposition, with a plan of what you hope to get him to say. Depositions serve to gather information. But more importantly, they serve to pin down witnesses and to procure admissions favorable to your case and harmful to theirs. But before you can secure those helpful admissions, you have to decide what admissions you wish to procure. To do that, look at the jury instructions to see what you need to prove and what the other side needs to prove. Then consider what admissions you could elicit that support your position or undermining theirs.

For example, if you represent the defendant, you would try to get the plaintiff to admit to facts that show he does not meet one of the elements of the cause of action he alleges in the complaint. Alternatively, you would try to get the plaintiff to admit to facts that support one of your affirmative defenses. Whatever questions you ask, start with figuring out what you want the opposing party to say and then draft an outline that attempts to elicit that information.

Prepare a detailed outline for the deposition. After you’ve gathered all the facts and understand how the law applies to those facts and the allegations and affirmative defenses in the complaint and answer, then you’ll be prepared to draft an outline for the deposition.

Prepare your outline similar to the one you would prepare for trial. In fact, the more you think of this deposition as if it were trial, the more clear, the more concise and the more penetrating your questions will be.

Divide the outline into sections, with each section addressing a specific point or issue you want the opposing party to address. For example, you would have a section on the party’s prior litigation (if you are aware, for example, that this is his third personal injury suit).

When addressing a given topic, start with general questions, and proceed from there to asking more specific questions, until you focus on the specific issues you want the deponent to discuss. Make sure your questions are simple and only contain one fact per question. And most importantly, ask as many leading questions as possible, as you are allowed to do when deposing the opposing party. You want your questions to tell the other side the answer you are looking for and you are hoping that he will agree with you as much as possible.

When preparing for the opposing party deposition, take the time to learn everything you can about the party and about the facts and law that relate to the litigation. Once you’ve gathered and digested all this information, take the time to think through what you hope to get the other side to say and prepare an outline aimed at getting the admissions you are looking for.

How to Prepare a Case for Trial

2008-11-09T14:51:00.003-05:00

When should you start preparing for trial? Days before? Weeks before? The best time to start preparing for trial is at the start of the case. Start every case with the end in mind - the verdict you want - and pursue that end during every step in the litigation. You cannot assume that your case will settle. Do not prepare to settle a case. Prepare to try it. That way, if you do settle it, it will be due in part to your trial preparation. And if you do not settle it, you will be prepared to try the case and win. The following are some suggestions to keep in mind to help you achieve the results you seek at trial.

Develop a trial theme. At trial, you should have a theme around which you will present your case. The theme serves as the foundation of your case. Everything you do during the course of litigation, should build on that theme. Keep it simple and short. You should start developing your theme as early as possible. With a theme in mind, you can start thinking about what evidence you will want to introduce at trial and what evidence you will want to keep out. The theme will assist you in deciding what motions to file, what witnesses to interview, whom to depose and what to ask them to advance your theme.

During litigation, you may realize that your theme needs some tweaking or deserves to be discarded and be replaced altogether. You are better off if you realize that your theme doesn’t work early on in the case, when you have enough time to change it, than to realize it on the eve of trial, when it is too late for improvisations.

Be first. Always be a step ahead of opposing counsel. You want to be proactive and set the course of litigation. Be the first to interview witnesses, to serve written discovery, to subpoena records from third parties and take depositions. Being first often affects the outcome of litigation. The first attorney to interview witnesses can take their sworn statements and lock them into their testimony. The first to serve discovery gets a jump on obtaining records and facts to support his case. Also, by pushing your case ahead, you show the other side that you and your client are in control.

Think out of the box. What can you do differently? Look at your case from different perspectives. Be creative. Are there other causes of actions you can plead? Other defenses to raise? Are there other witnesses or other documents which may support your case? Too often, lawyers get into a rut of following the same protocol when they work on a certain type of case. Don’t fall into this trap. Whether it’s a slip and fall or breach of contract, think of new ways to approach the case.

Think your case through. When you first start a case, develop a case strategy. Figure out what you need to do to win at trial and prepare a step by step plan to achieve your goal. Developing a plan ensures that everything you do has a purpose. Without a detailed plan, you’re likely to pursue avenues and do things which do nothing to advance your case, or worse, undermine it.

Do your research. Spend some quality time in the library to research the elements of the causes of action in your case and the affirmative defenses. You need to know what each side has to prove to win his case, what discovery to pursue, what to ask witnesses in deposition and what motions to file.

Read the jury instructions. If you are plaintiff’s counsel, the jury instructions tell you what elements you have to prove to win at trial. If you are defense counsel, the instructions give you a road map to poking holes in your opponent’s case. From the beginning of the case, you need to know what the jury instructions expect you to present to a jury, so that during every step in the litigation you are gathering those facts in the interrogatories and request for production you propound, the subpoena for records you issue and in the questions you ask in depositions.

Having the facts you need to win shouldn’t be an accident. If you don’t know the jury instructions from the beginning of the case, the information you elicit which supports your case will be nothing more than coincidental. Know what you need to prove at trial and take the needed steps to elicit that information.

Have the court enter a scheduling order. Some courts enter detailed scheduling orders which spell out each phase of discovery and pre-trial deadlines. Others provide less guidance. Whether you are the plaintiff or the defendant, take steps to ensure that a detailed scheduling order is entered spelling out deadlines for expert disclosure, who discloses first, physical examinations of the plaintiff, depositions, etc.

File dispositive motions early. If you can win on summary judgment, start building your case early and file your motion as soon as it is appropriate to do so. Early analysis can help you isolate the weaknesses in your opponents case, one or more of which may be fatal.

Get your experts lined up early. Due to the expense, many clients prefer to delay the hiring of experts. However, being an ounce wise may prove to be a pound foolish. Experts can help you evaluate the strengths and weaknesses of your case and that of your opponent. An expert can help you develop your case strategy and determine what discovery to propound and what questions to ask at deposition.

Let the client know what to expect. Whether it is the cost associated with trial or what the outcome may be, make sure your client knows what to expect if the case goes to trial.

Success at trial is not an accident. It takes time and preparation, and that commitment of time and effort starts at the very inception of the case and continues through the time of trial. There are no shortcuts. Think through your case, come up with a theme and game plan and commit all your energies to seeing your goals fulfilled.

Breaking The Ice

2008-11-01T09:24:00.010-04:00

It won't be long until your next cocktail hour, conference or reception. There is no value to attend these by standing in a corner, clutching your drink and waiting for it to be over. They are networking events. But how do you network, you ask? How do you break the ice with total strangers? Consider the following tips:

Bring a friend. Bring someone you know with whom you can talk between mingling with others. You will feel less nervous if you have someone you know nearby. However, make it clear to your friend that the purpose of the event is to network. Don't fall into complacency and spend the entire night speaking with your friend.

Look for a friend. Odds are that you know someone at the event. When you spot her, she will likely be in a small group. Walk up, re-introduce yourself and introduce yourself to the others in the group. You have now met several new people you can get to know.

Come early. It is easier to meet new people when there are fewer people to meet. Arrive early and you will likely find a number of individuals by themselves, like you, that you can walk up to and start a conversation with.

Lines are a great place to meet people. When standing in line to get a drink or standing at the buffet table, make a point to introduce yourself to those in front and behind you.

Work the room. Make a point to make your way around the room, making an effort to speak to folks you do not know. You will find that most people at the event are there for the same reason you are - to network.

Stay engaged.When you are in a conversation, stay engaged. Do not constantly be looking over a person's shoulders in search of someone else. No one likes to feel that they are simply filling time for you while you look for someone more interesting or more important with whom to speak.

Bring business cards. Make sure you bring enough business cards to hand out. When you receive one in return make sure to study it a second and make a connection between the card and the person handing it to you. Also, to the extent you promise someone you are going to send them an article you wrote, put them in contact with someone else or provide them information, make a point to write that down on the card they hand you. It will serve as a reminder to you and it will show them that you are conscientious and plan on carrying out your promise.

Follow up with hand written notes. When you return to your office, send handwritten notes on personal stationary to the folks you met. No one writes notes anymore. They will be remembered.

With a little planning and a little effort, you can make your next networking opportunity a successful one.

Making the Most of Your Next Conference

2008-10-25T11:07:00.008-04:00

Before long, you will be attending a voluntary bar association conference or seminar. It will be a great networking opportunity, particularly if you consider the following advice.

Due your due diligence. Before the conference, procure a list of attendees. Reach out to everyone you know either by e-mail or preferably a handwritten note, letting them know you will be there and suggesting you meet for a meal or drinks. Breakfasts are great for networking - they give you a jump on the day and are less expensive than other meals. Leave yourself some time open for impromptu meal plans with new folks you will meet. Also, plan on meeting any existing clients in the area.

Arrive early. Flying in and out of a conference as quick as possible is not productive. Work is work, but to the extent possible, arrive before the first cocktail party and leave after the last one. The longer you are there, the more people you will meet.

Attend everything. Go to every cocktail hour, meal, special event and everything else on the agenda. Arrive early. It is easier to network when there are fewer people in the room. Also, the conference's staff will be there meeting and greeting and will introduce you to the organization's leadership. Also, arriving early does not mean you leave early. Stay until they close the bar.

Target your networking. It is important to meet as many people as possible, but you should also have a plan of meeting three to five specific individuals who will help you develop business. It may be a certain in house counsel, or someone in the organization's leadership. Figure out where they will be, find them and introduce yourself. Treat them to a meal , get to know them and lay the foundation for a long term relationship.

Always be on. Every minute you are at a conference, you have the potential of developing a relationship that may result in business for your firm. Keep that in mind with every interaction you have with everyone you meet. You should always treat everyone the same anyway, so this is good practice.

Follow up with personal notes. After you return home, look at the attendee list and circle the names of those whom you met, had meals with or goofed off with (yes, occasionally playing hooky with another attendee may from the basis of a lasting personal friendship and business relationship). Write them handwritten notes and invite them to look you up if they are ever in town.

Conferences are a great way to develop lasting relationships that may result in referrals. It just takes a little planning to make the most of them.

Making Things Right When Things Go Wrong

2008-10-18T15:20:00.004-04:00

I hate to tell you this, but as a new attorney, you will make mistakes. In fact, you will make your share of them. No matter how smart you are, or how well your firm trains you, or how closely you are supervised, you will do something wrong from time to time. When you do, its your job to right the wrong. You do that by doing the following:

Don’t brush it under the rug. When you make a mistake it is tempting to hide it from the partner’s view in hopes that it never gets discovered. Don’t ever submit to this temptation. Not only is it dishonest, it can make a small problem into a great big one. That mistake you made today may be one that can be addressed and rectified today. Ignore it, however, and it may grow, and infect the entire case, and the day may come when it’s too late to rectify it. Like a cancer, if diagnosed and treated early, a mistake is often treatable. If ignored, it may grow and spread and damage everything in its path.

Size up the situation. Was a mistake really made, or do you simply think you made one? Before blaming yourself, think through whether a mistake was made at all. If you did make a mistake, consider how big of a mistake it really is. That mountain you’re worried about may only be a molehill. Generally panic sets in when you make a mistake, your imagination gets the best of you and you start planning what life will be like after you get fired. Stop, take a deep breath and rest assured that things will work out. Even if it turns out your mistake was a big one, know that things still will work out.

Think through solutions on how to rectify your mistake. There are few mistakes that cannot be undone. Think through the various options that are available to help you clean up any mess you may have created. This is the time to speak to your mentor at the firm and seek his guidance on how to make things right. Also, it may take more than simply thinking or talking through the problem to come up with an answer. You may have to do some research to find the answer you are looking for.

Face the music. Once you know the scope of your mistake and have devised a way or two or more on how to fix it, go to the partner in charge of that file and tell him what you did and how you plan on fixing it. He will appreciate you owning up to your mistake, even though he may be upset that you made it. He will also appreciate that you have thought of different solutions, even though he is annoyed he has to take up his time to address your mistake.

Your boss gives you assignments to take problems off his plate and give them to you. When you make a mistake, you have managed to not only give him back the problem he gave you, you have managed to make it bigger. The least you can do is come up with a game plan to resolve the new problem you created.

Discuss how best to rectify the mistake. After you’ve presented the partner your proposed solution to your mistake, talk through how best to address the problem. Again, the partner may not think the problem is a major one. Conversely, he may think it is much worse than you think it is. Either way, you need to have a heart to heart to come up with a solution.

Learn from the mistake. Whether it is a big or small mistake, learn as much as you can from it. Maybe you need to learn to take more time when researching an issue. Perhaps you have to learn to probe more deeply in deposition. Whatever the lesson is, take it to heart and learn from it.

Maturity as a lawyer is owning up to your mistakes, figuring out how to deal with them and letting your boss know about the mess you got him into and how you plan on getting him out of it.

How to Prepare for a Hearing in Federal Court

2008-10-12T09:35:00.002-04:00

Hearings in federal court are a bit different than ones in state court. First, in state court, judges generally rule on motions at hearings set by the parties. In federal court, hearings are the exception rather than the rule. Most motions in federal court are resolved on the papers. In fact, in federal court you need to request a hearing and the judge, depending on the motion and issues involved, may choose not to hold a hearing, believing that the papers are adequate. If you do get a hearing date, however, consider the following when preparing for that hearing.

Don’t rehash the papers. The judge and her law clerks have read the motions, responses and replies, have read and dissected the cases cited in them and have likely done their own research and have uncovered additional cases. Therefore, don’t start by rehashing what you said in the papers. You’ll bore the judge, and possibly insult her by implying that she has not read what you wrote.

Focus on your theme. Instead of summarizing what you said in your papers, pick out the theme you emphasized in those papers and make that the centerpiece of your argument. If you can’t reduce your argument to a simple theme that explains why you should win, then recouch your argument until you can.

Practice your argument out loud. After you have prepared an outline of your argument, and you have organized all the documents and cases you will be referencing throughout the hearing, close the door to your office, and practice your argument out loud, not just once but three times. In the process of doing this, you will hear for yourself what parts of your arguments work and which parts don’t, and you can make the necessary adjustments.

Be prepared to be interrupted. Treat the hearing like you would an appellate court hearing. The judge is having a hearing as much to allow you to present your arguments as to have her questions answered. When preparing for the hearing, think about the questions you would ask about the facts and the law if you were the judge, and have short, direct answers prepared for those questions.

Keep your composure. There is something about standing before a federal court judge, in her large courtroom, with her federal clerks and assistants sitting nearby. It can be enough to cause the words to choke in your throat. To get over the anxiety, make a point to accompany another attorney from your office to a hearing he is having in federal court, preferably a hearing in front of the same judge before whom you will be arguing. Watch how he presents himself, the arguments he makes and how he answers questions. After the hearing is over, quiz him about how he prepared and why he said what he said and why he made the arguments he made. This reconnaissance will take the edge off the anxiety.

Be prepared and be courteous. All judges expect that the attorneys who appear before them be prepared, professional and courteous. This is particularly true of federal court judges. To meet these expectations, have a hearing binder prepared with an outline of your arguments, annotated to the exhibits and cases that support those arguments, with copies of those exhibits and cases in your binder. Having everything in one place, organized and well thought out, as opposed to combing through a messy file, shows that you are prepared.

In addition to being prepared, be courteous. No matter how opposing counsel behaves, whether he interrupts you, or even insults you, never succumb to his level, however tempting. Don’t take the bait.

Arguing motions in federal court can be nerve racking. To alleviate your fears, do everything you can to prepare, take a deep breath and do the best you can.

Making the Most of the Drive to Work

2008-10-04T23:02:00.000-04:00

I spend a half hour driving to work and a half hour driving home. At 5 days a week, 50 weeks a year, that is 250 hours each year I commute to and from work. For some of you, it is twice that. That is a lot of wasted time. Learn to make the most of it by turning your car into a resource.

Instead of listening to talk radio or music, consider learning a foreign language or listening to motivational or business books on CD. In 250 hours, you could learn conversational Spanish. You could become an expert in a field. You could hear all the leading business and marketing books to help you get ahead. The most important commodity we have is time and you have to learn to harness every last minute of it and make the most of it.

Now, listening to 250 hours worth of CDs can get expensive. To lessen the cost, consider checking out CDs from your local library. Associations you belong to may have a lending program for such materials. Also, there is a great deal you can download for free or at little cost onto your I-Pod and listen to it through your car stereo. And if you are truly motivated, start a local club with friends where each of you buys certain books on CD, listens to them and then lends them to the others. If you can recruit just four other participants, you will cut your annual cost by 80%.

Time in the car does not have to be wasted time. Decide how to improve yourself over the next 12 months and look for materials you can listen to that will help you reach your goal. You will be surprised just how much your car is an educational tool.

The Power of Sound Bites

2008-09-27T13:14:00.002-04:00

If you want to master the art of persuasion, you must master the art of the sound bite. Politicians do it. Advertisers do it. Motivational speakers do it. They understand to boil down their ideas into catchy phrases and use them as a form of shorthand to catch and keep their audiences’ attention. Speak all you want, but most of what you say will be forgotten. To say something that will be remembered and that will influence, find a way to reduce it to a sound bite. Think about the printed ads, television commercials and speeches that have stuck with you. I bet what you remember are the catch phrases. They hook you and reel you in.

So when you are pursuing clients and convincing them to go with you instead of the competition, you need to think through how you can serve their needs. How your company is different. Why it serves their best interest to go with you. Write down the answers to all these questions. Then think about reducing your answers to several themes - central ideas reflecting why prospective clients need you. Once you do this, reduce those themes to sounds bites - one or more catch phrases that reflect the essence of your company and its ideals - phrases that resonate and that will stick in the minds of your audience. Just a few words - the right ones - can make the difference between pitching and selling - between talking and closing.

Where do you come up with sound bites? They are all around you. They are in the articles you read, they are in the lyrics you listen to and they are in the movies and television shows you watch. Train yourself to look out for them and start incorporating them into your selling. You will discover that with them, your power of persuasion will improve significantly.

The Vision Thing

2008-09-20T18:09:00.002-04:00

If you want to succeed at work, in your family and in your community then you need to become a leader. In any organization, there are the followers – the ones who do as others tell them, who choose not to think for themselves and are content to take orders. Then there are the managers, who direct others on how to implement someone else’s idea. And then there are the leaders, the ones who as Stephen Covey puts it, "start with the end in mind" and devise a plan on how to get there. They have the "vision thing," as some call it – they think big picture, they see what others do not and are not afraid of the expanse of their dreams. They are the ones who help organizations take huge leaps forward. Most organizations lack the leadership that they crave and need. Fill that void, and you will transform your organization.

But how do you become a leader? You say you are not the managing partner of your law firm? How can you lead from the middle of the organization or even the bottom? A title is not a prerequisite to be a leader. You do not wait until you have advanced the ranks before becoming a leader. As John Maxwell says, leadership has nothing to do with your position –it has every thing to do with your attitude and your perception of who you are. Start thinking like a leader; start thinking about the bigger picture, and the "end in mind" and develop the "vision thing." And then have the nerve to present your ideas to your firm and put your back into it and put forth the effort to make those ideas into reality. No one is going to make you a leader. You cannot wait until you get a title to become one. You need to create the opportunities, think big and be willing to implement your dreams. Your position may only be "middle management," but others will soon start seeing you as a leader. And with time, your firm will reward you and your title will soon match your efforts. Your title will come to reflect your leadership.

The Lost Art of Letter Writing

2008-09-13T14:05:00.000-04:00

There was a time when other than speaking to a person face-to-face, the mainstay of communication was writing letters. There were no e-mails or instant messages or Myspace accounts. There were no computers or Blackberries or cell phones. There was just a quill, a bottle of ink and a piece of paper. And with these simple implements, relationships developed and flourished. It is how John and Abigail Adams held each other up during this country’s fight for independence. On March 31, 1776, Abigail wrote John, “I have sometimes been ready to think that the passion for liberty cannot be equally strong in the breasts of those who have been accustomed to deprive their fellow-creatures of theirs.” Who writes like this today? What has happened to our gift to move others with our words? If you recapture the lost art of letter writing, you will find you personal and business relationships blossom.

No one writes letters any more. So when someone receives a written letter in the mail, they cherish it. Those letters are often keep. Read again. Put away, only to pulled out to be read again. If you want to make an impression, buy yourself stationary - professional looking stationary with your name and address across the top of the page and on the corner of the envelope - and commit to writing at least one letter a week. Pick an old acquaintance or an executive you met at a networking event. Sit down at your desk, with your stationary and your letter writing pen (I would suggest to make the experience complete, go out and splurge on a nice pen that you only use to write letters), and draft a letter. The first few letters are difficult. With e-mails and word processing, it is hard not to second guess every word you put down on paper. It will take some time to learn to write letters. Some of you will find the experience too bothersome to even pick up. Others will throw down your pen in frustration and your stationary will collect dust in the bottom drawer of your desk. But for those of you who stick with it, writing letters will become a natural and regular part of your life. You will find that these letters will forge closer relationships with family and friends. You will also find that these letters will forge closer relationships with business prospects and clients. In short, the forgotten art of letter writing will be good for you and good for business.

The Way of the Samurai

2008-09-06T14:04:00.002-04:00

According to what one of the elders said, taking an enemy on the battlefield is like a hawk taking a bird. Even though it enters into the midst of a thousand of them, it gives no attention to any bird other than the one that is has first marked.

Hagakure - Yamamoto Tsunetomo

The Japanese Samurai led their lives by the Bushido code, or the "Way of the Warrior." Chosen at birth, their training began in infancy - instructed on how to bow, how to dress, how to address their masters, how to withstand cold without shivering, how to withstand pain without flinching. They were taught to use the sword as an extension of themselves. And they followed a specific etiquette in everything they did - whether in every day life or in war. Justice was supreme under their code. Crooked and unjust actions were beneath them. Honor and courage governed their deeds and words. Honesty and sincerity were valued more than their very lives. For the feudal Samurai, it was more than just a job - it was a way of life. It defined them. They would rather take their own lives (for which they carried a second, smaller sword) than betray themselves - betray the Way of the Samurai. There was honor in the Way, and disgrace outside of it. There was meaning in fighting for their towns and provinces and emptiness in choosing to simply stand by.

Today, we lawyers belong to a similar warrior class. Though we have hung up the swords and silenced the battle cries, there remains in us a warrior spirit. We carry the duty and the privilege to fight for our clients, and we do so according to our own code of ethics -our own Way of the Samurai. It is easy to forget this as we perform the day to day tasks of responding to discovery and preparing motions and writing confirmatory letters. It is easy to forget the privilege and obligation we have to provide our clients the best representation possible. Just as the Samurai defended their feudal lords, we stand in defense of our clients, with the proverbial sword at the ready.

There is great honor in what we do. We can derive pride and solace and meaning in our roles as modern day warriors. What we do is more than just a job or a career - it is a way of life. We cannot allow the drudgeries and the small tasks get in the way. They obscure our calling, the reason we became lawyers in the first place - to fight for our clients, to give them a voice, to defend their rights.

We can learn about ourselves from the warriors who came before us. We can appreciate that our profession, in giving a voice to our clients and ushering them through the civil justice system, is a noble one - where words have replaced swords and our professional code of ethics have replaced the Bushido code. We are modern day warriors, and to consider ourselves something less - ones who simply push paper or bill hours, is to cheapen ourselves, to lose sight of who we are, who we are called to be. Work can become unsatisfying if we focus on the mundane - defining our lives by the little tasks and bothersome obstacles. We are so much more than that.

It is time to recapture our warrior spirit. It is time to don the robe, sheath the sword in its scabbard and prepare for battle. It is time to reclaim the honor and the responsibility and the grace that comes with representing our clients, lending them our voices and standing before them, prepared to bring the sword down in all alacrity. We are the modern day Samurai. And we are prepared to do justice.

10 Things You Should Be Doing Now

2008-08-30T21:37:00.002-04:00

1) Writing Letters. Buy stationary and get in the habit of writing letters to colleagues and folks you meet at networking events. Handwritten notes are a great way to develop professional relationships.

2) Make the most of your drive to work. Learn a foreign language on CD or listen to motivational or business books on CD.

3) Exercise. What we do is very stressful. Take the time to spend 30 minutes a day to exercise.

4) Watch what you eat. You are constantly traveling for depositions and hearings. Prepack healthy snacks like nuts or protein bars to avoid the candy bars at the airport.

5) Get to know everyone at your firm. Make the effort to develop relationships with as many co-workers as you can, from the top partner to the mail room guy. These personal relationships make work more enjoyable.

6) Get a mentor. Find someone who can help you navigate the practice of law.

7) Be a mentor. Help someone else navigate the practice of law.

8) Read the legal news. Keep up with what’s going in your legal community. You learn a lot about the lawyers you go up against and the judges you appear before.

9) Borrow CLE materials. Ask to borrow CLE materials other attorneys bring back from their seminars. They generally contain a lot of "how-to" practical advice.

10) Read others’ transcripts. Read the deposition and hearing transcripts of other attorneys at the office to gain a different perspective on how to do things.

Time Management 101

2008-08-23T09:21:00.002-04:00

What, the day is over? How about the research you wanted to get to? Or those phone calls you wanted to make? Or that letter that should have gone out? Sometimes it seems that being a lawyer means playing catch up. It does not have to be that way though. A few changes can allow you to squeeze more time out of your day, whether you need it for work, for family or for leisure.
Get a jump on the day. Many attorneys start their day at 9:00 a.m. Why not start at 8:30 or even 8:00? Getting a jump on the day, before the phone starts ringing and others start strolling into the office, is a great way to tackle projects without interruptions. Getting into the office early improves the odds of getting out early.

Keep lists. To avoid wasting time figuring out what to do next, prepare a list which tells you what to do next. In fact prepare two lists, a case list and a “to do” list.

Keep a running list of all your active cases. Scan it every day to determine if you need to do anything new on your cases.

Keep a “to do” list where you list all the projects you have to work on. Delete items as you complete them and add new ones as you think of them. The list lets you see everything you have to do all at once, helping you prioritize what to tackle first.

Develop action plans. Whenever you start working on a new file, develop an action plan. Plan a strategy to win the case and plot out what you need to do to get there. If you develop an action plan and know what you need to do to implement it, you won’t waste time constantly trying to figure out what to do next.

Don’t underestimate the power of thinking over doing. My high school English teacher used to tell me that the real writing occurs when the pen is down. What she meant is that before you start you need to know where you want to end up, whether it’s writing a motion, doing research or attacking a case. If you want to save time, really save time, then expend some time thinking through what you want to accomplish.

Act, Don’t React. As a follow up to thinking things through, learn to make things happen in your cases rather than reacting to what others do. Whether you’re the plaintiff or the defendant, you can set the course of your case, and by doing so, you can create timetables that fit your schedule. You can initiate the court to enter a scheduling order that suits you. You can be the one who sets the key witnesses when you want them set. If you want to be in charge of your calender, don’t let opposing counsel set the agenda.

Become intimately familiar with your calender. Every day, look at your calender and scan through the next month’s appointments and deadlines. This way you can plan ahead and avoid any surprises.

Put yourself on a schedule. Create deadlines for yourself and stick to them. When you give yourself an assignment give yourself a due date to ensure you’re not rushing at the last minute.
Set realistic deadlines. When you set deadlines for yourself, set reasonable ones. You’re not going to be able to finish that motion for summary judgment in two days, especially if you have a deposition to take and interrogatories to answer. When setting deadlines, set them far enough in advance to allow yourself enough time to do what you need to do.

Keep a clean desk. So much of time management is organization. If the research you want is under a huge pile and the phone number you want is under another huge pile, then expect to waste a lot of time. Avoid this by keeping a neat office and a neat desk.

Leverage the staff. Learn what to do yourself and what you can assign to a junior associate, a paralegal or to your secretary. Making the most of your time sometimes means making the most of others’ time. Determine what you can do and what can competently be done by someone else and assign it.

It never seems as though we have enough time to do everything we want to do. You blink and another day has gone by and your “to do” pile gets higher. To take control of your schedule rather than having it control you, take the time to plan ahead, making sure that every step you take takes you a step closer to reaching your objectives.

How to Be a Better Negotiator

2008-08-16T19:01:00.008-04:00

Everyone hears about the million dollar verdicts. But what about the million dollar settlements? Though not as glamorous, they require no less skill to achieve.

Do Your Homework. Learn everything you can about the other side. Do they have a take-no-prisoners attitude toward negotiation or are they friendly and cooperative? Are they the type to blow their top and walk away from the table, or are they dedicated to solving problems and reaching resolutions? You can get this information from other executives who have dealt with them, from news story articles or possibly from the internet.

Think Win-Win. So often, we think win-lose. For us to win, it must come at a cost to the other side. However, with a little thought, you can think of solutions that benefit both parties. Why help the other side? Because to the extent you can help others reach their goals, they will be more open to helping you reach yours.

Think Outside the Box. Think of new, innovative approaches to negotiation. There may be alternatives to simply paying the other side more money in order to reach a deal.

Know Your Bottom Line. Go into a negotiation knowing what your bottom line is and be prepared to walk away if your minimum needs are not being met. Otherwise you may reach a deal on terms you cannot live with.

Know the Other Side’s Bottom Line. Just as you need to know what your bottom line is, try to discover what the other side’s bottom line is. That way, you don’t force the other side into a deal that they can’t live with. A deal does not mean anything if its only on paper.

Put Yourself in the Other’s Shoes. Do your best to learn what the other side’s needs and wants are. Try to understand what motivates them, what they seek to get out of the negotiation. That way, you will be able to devise solutions that will satisfy those needs and in turn, will encourage the other side to meet your needs.

Be Patient. Reaching a deal takes time. Sometimes, it takes a lot of time. Be prepared to negotiate, to haggle, to go back and forth until a resolution is reached or until it’s painfully obvious that it will never be reached. If you’re going to sit down with the other side to work something out, take the time to do it right.

Be Honest. You may be tempted to lie during negotiations. Don’t. A successful negotiation is built first on trust. If the other side can’t trust you, he never will be willing to settle on your terms. When you say something mean it. If it’s your last offer, take it or leave, be prepared to walk away if they reject it. Otherwise, you’ll lose credibility.

Don’t Assume the Other Side Will Be Honest. Just because you’re honest does not mean the other side will be. Take everything you hear with a grain of salt.

Mastering Technology

2008-08-09T10:30:00.003-04:00

There was a time when attorneys could get away with not learning how to use a computer, and burying their heads in the sand when it came to technology. Those days are long gone. If you want to succeed and thrive in the modern law firm, you not only have to be familiar with technology - you have to master it. To do so, consider the following:

Learn Word. Knowing Word Perfect is well and good, but today, most everyone uses Word as their word processor, and more than that, are intimately familiar with all its features. Take the time to go through the help functions that accompany the program and consider buying an Idiot Guide or Word for Dummies to learn it well.

Learn Excel. In addition to learning Word, learn Excel, the leading spreadsheet program. Whether you are preparing charts or keeping track of a lot of information, Excel is the perfect program for such jobs and an application that merits being mastered.

Learn Power Point. Whether it is for trial, a hearing on a dispositive motion, a presentation to a client or for a CLE course, today Power Point presentations are everywhere, and if you haven’ t prepared one yet, you’re one of the few who hasn’t. Again, there are books for the uninitiated. Buy them and read them.

Learn Westlaw. Law libraries have become an anachronism. You need to learn Westlaw, and to save your firm and your clients money, learn it efficiently. Also, Westlaw has all sorts of databases other than cases and statutes that have the information you are looking for.

Master the web. The internet is your best friend. Through Google, you will find out all sorts of things about that plaintiff or that expert you are preparing to depose. You will find all sorts of journal articles and websites dedicated to the scientific issues you are trying to get your brain wrapped around. Facts and data that would taken days to find in the basement of some library are at your fingertips.

Scan, scan, scan. We are headed toward a paperless law firm. It is only a matter of time before every document, whether received by a law firm or sent out, including every piece of discovery, will be scanned, sorted and organized, to be retrieved and reviewed with the touch of a few keys. Get used to scanning or having your secretary scan all your documents. You will be amazed how much time is saved when you no longer have to track down pieces of paper in your firm’s file room or at the bottom of a pile on the partner’s desk.

Get a PDA. Today, with clients expecting every access every minute of every day, you cannot leave the office without a PDA (personal digital assistant), to access your e-mail, the communication mode of choice these days.

External access to your firm’s computer system. Chances are you r firm has a way for you to access its computer system, whether you are at home, at the airport or in a hotel. If not, discuss with your firm about getting external access for everyone. This will allow you to work from home or anywhere else for that matter. Today, law offices are no longer confined by four walls.

Learn trial technology. These days, technology is king in the courtroom. So, what is the latest technology? Well, that is a bit of a trick question, because court room technology is always changing. By the time this is published, the newest and latest would have changed. That’s why it’s important to keep an eye out for seminars, articles and web articles discussing the latest fads, trends and what works and what does n0t in the courtroom.

Technology, regardless of how overwhelming it gets at times, can and will make your job easier. It will particularly make it easier to manage the ever increasing amount of information and documents involved in litigation. Learn it, master it and live it.

Pay It Forward

2008-07-19T11:04:00.002-04:00

A few years ago a novel came out titled "Pay It Forward," followed by a movie adaptation. The protagonist was a 12-year-old whose teacher challenged him and his classmates to come up with an idea that would change the world and to implement it. The boy’s idea? "Pay it forward." He does something really good for three people. When they offer to repay the favor, he tells them to "pay it forward." He asks each of them to do really good things for three others, and when those others ask how they can repay the favor, they are to be asked to do something really good for three others, and so on. The idea is that from three acts of kindness, thousands more will be born. Now it’s your turn to "pay it forward."

As young attorneys, we may not view ourselves in a position to help others. We may think we do not have sufficient experience, or know-how or influence to be a positive influence on others. How can I help the other young associates when I’m still figuring things out? How can I handle that pro bono case when I have never argued a motion in court? But the fact is that you know more than you think, you have learned more than you can know and you can change things beyond your beliefs. It starts with finding a need and meeting it.

Perhaps another attorney in the office struggles with his writing. Perhaps your firm needs help with the staff. Perhaps a charitable organization needs the analytical skills of an attorney, even an inexperienced one. Find what those needs are, seek them out, and fill them. You have been blessed with a career in law. There are billions of people on this world who, because of their financial and social circumstances, are barely scraping by each day. They could never have made the life you have. If you had been them, you would not be here. Reflect on that, take it to heart, remember it, and when you come to terms with the fact that so little of your success has anything to do with you, pay what you have been given in this world forward.

What are some of the things you can do to share your blessings with others? Consider the following:

Volunteer. There are so many avenues available to you to volunteer. The obvious? Do pro bono. Most voluntary bar associations have an arm that pairs attorneys like you with needy clients who, because of their lack of financial wherewithal, cannot afford the legal services they need. The may lose their homes, get thrown out of their apartments, get thrown in jail, lose government benefits or even get deported without your help. You can make a real difference in these people’s lives.

In addition to pro bono, consider doing volunteer work for organizations that help out kids - Big Brother, Big Sister, The Boys Club, your local YMCA. These kids need role models and what better role model than someone who has made it through law school, passed the Florida Bar and spends every day speaking on behalf of others?

Lead. If you want to make a difference in the lives of others, become a leader in your law firm, in your local bar association, in your community. You don’t need a title to be a leader. Even if you’re not the managing partner, the president of an organization or have a title at a charitable organization, you can lead. Understand the organization’s values, its mission, its projects, and direct your efforts to advance them and bring others with you in the process.

Bring others with you. In your pursuit of making a difference, bring others with you on the journey. Don’t settle with impacting others. Help build up others so that they too can impact others. The concept of paying it forward is that each person who benefits in turn around and benefits others. As you help out in your firm, at your bar association and in your community, identify others who have the same desire, partner with them, and help them affect the lives of others for the better. You can do a lot. You and others can do so much more.

Don’t expect anything in return. Go out of your way to help others. If someone asks for help, give it. When someone seems to need help, offer it. And when no one needs or asks for it? Offer it anyway. And never, never do any of it with any expectation to get anything in return. You’re not doing these things for the payback. The payback is in the doing. Motive is everything and it is better to do less for the right reasons than more for the wrong ones.

When it comes to being a lawyer, a good one that makes a difference, you it owe to yourself to do more than produce good work product. You owe it to yourself to look beyond yourself and your needs to those around you - at work, at other attorneys and at your community. Find out what those needs are and start working on meeting them. It’s only when you start affecting the lives of others for the better that you can aspire to become a great lawyer.

Mistakes Associates Make And How To Avoid Them

2008-07-13T10:45:00.004-04:00

"If I only knew then what I know now," is a common refrain by senior associates and junior partners alike. When attorneys start out, we do not have the experience nor have we developed the instinct to know what the potential land mines are, much less to know how to avoid them. I certainly did not. Because of my naivete and inexperience, I ignored doing some things that today are second nature. For attorneys starting out, try to avoid the following:

Not speaking with the client. Nothing upsets a client more than being ignored. He wants to know what is going on with his case and wants a role in the big decisions, and sometimes the small ones. If you want to upset a client, don’t call, write or e-mail. Just let him get bills month after month without knowing what you’re doing or what you’re charging him for. To develop good client relations, seek your client’s input before making any big decisions, sometimes even before making small ones. Find out what documents the client wants to receive during the course of litigation, how often he wants to hear from you, what he wants to be bothered with and what he would be happy with you simply handling on your own. Once you know what he wants, give it to him. He’ll appreciate you for it.

Not speaking with the partner before speaking with the client. Before you speak with the client though, especially about such things as case strategy, such as deciding which experts to hire, what depositions to take or what the law says about his case, speak with the partner on the file first. You want to be on the same page with the partner on the file, make sure you both see the case the same way and have the same game plan in mind. Nothing undermines a client’s confidence to hear two different, and possibly contradictory game plans from the same firm. And the partner, who likely has worked with the client longer and who likely has handled similar cases, probably already has a case strategy in mind or has strong opinions about just about anything you plan on speaking with the client about. Go to the partner first, discuss with her her views, and then speak with the client after everyone has decided on a plan and how to execute it.

Not getting client approval. Before spending the client’s money, get the client’s approval. Need an expert? Get the client’s approval? Want to depose a witness? Get the client’s approval? Want to videotape that deposition? Get the client’s approval. A client should never be surprised by your bill.

Sugar coating. Clients like good news. The thing with good news is that it is often in scarce supply in litigation. Do not tell clients things are going well when they are not. Do not tell them they have a strong case when they don’t. And when evaluating a case, when asked what the case is worth, give them an honest evaluation. If you’re going to err, err on the pessimistic, not optimistic side. When putting a dollar value on a case, do the research. See what juries have awarded in similar cases. If the client complains, says you’re overblowing it’s exposure, you have the verdicts to support your view. It’s always better to be in the position where you settled the case for less than what you thought it was worth than paying more than what you valued it at.

Shoot from the hip. When the client calls for advice or with a question, it is tempting to tell him whatever comes to mind. Don’t do it. Stop, take a breath, and let him know that you will look into or research the issue he raised and that you’ll get back to him as soon as possible. Then talk to the partner on the file, get his thoughts, hit the library, look at the file, be prepared for other questions that may be asked related to that topic area, and then, and only then, call the client back and have an intelligent discussion about whatever he asked about.

Not thinking things through the end of trial. It’s tempting to look at a research assignment, a deposition or a hearing as simply that, and not look beyond it as to how it affects the entire case. Get in the habit of seeing the big picture in your cases, analyze where the cases are going and how to get there. Once you develop that view, then everything you do in your cases will be more meaningful and should contribute to achieving that larger goal.

Turning in drafts. It’s tempting to turn in rough drafts to other attorneys in the office. They’re not the client and because they’re more experienced, they can put the finishing touches on your memo, letter or motion. The problem with that is that the lawyers in your office start seeing your work product as substandard. No matter what a lawyer says, no matter how quickly he wants something and no matter how often he says that a draft, no matter how rough, is fine, don’t give him anything but your best work. Treat the lawyers in your office like your client. Don’t give anything you wouldn’t give the client, which means it has to be perfect. I always review my drafts three times. It seems a bit time consuming, but it always guarantees a strong, clear and concise work product.

Sacrificing quality for quantity. As defense attorneys, we are under constant pressure to bill to meet our annual billable hourly requirements. In addition to billing so many hours each year, we know that some of those hours will get cut because clients will not pay for what they perceive as too much time spent researching, drafting or revising. Now the problem is clients want perfect work product but often don’t want to pay for the time it takes to make it perfect. That often translates into associates who produce great work having some of their time written off, which translates into longer hours to make those billable hour requirements. It is tempting to cut some corners so as to produce the same product in less time and reduce the risk of having your time cut. The problem with that, is that you can’t cut corners and expect the quality to remain at the same level. And at the end of the day, you want to base your reputation on the quality of your work, not on the fact that you meet, or even exceed your hours but that your work product is average.

Shying away from the hard assignments. It is tempting to avoid the tough assignments. They are tough for a reason. They take long, there are not always clear answers and things can go wrong, sometimes very wrong. But if you want to succeed, you need to tackle the tough challenges. Because they’re tough, it’s more likely you want be as successful at handling them as you would your run of the mill cases. But if you want to grow as a lawyer and earn your stripes, you need to handle them.

Avoiding social engagements. With all the hours to bill, who has time to attend bar meetings, get involved in local organizations or attend cocktail parties with judges? You do if you want to start developing the relationships that will be off in the long term. It’s easy to get caught up in billing the hours and forget about everything else. However, it is the everything else that will pave the way for developing clients and becoming partner.

Ignoring mistakes. If a mistake happens, it’s human nature to ignore it, to hope it goes away. The problem is that if you ignore it, there’s a good chance it will become bigger and that wart you ignored today may become tomorrow’s tumor. When you made a mistake, acknowledge it, talk to the partner about it and figure out how best to handle it. Problems have a way of growing when they are not dealt with.

Not appreciating that you are providing a service. Many young lawyers think of themselves as simply lawyers. Lawyers of all ages often forget that we are providing a service, just as a doctor, or a sales representative of a waiter does. Think of the last time you were served in a restaurant. What made you like a waiter and made you want to give him a bigger tip? What about that other waiter that you didn’t like? As lawyers, we are not all that different. Think about what service you receive from various sectors and what you like about that service and what you dislike. You probably like prompt, friendly service. You need to keep in mind that you are providing a service and that you need to do everything you can to make the experience a pleasant one. Otherwise, just as you might decide not to return to a restaurant because you had a bad experience with a waiter, a client may decide not to return to your law firm because he had a bad experience with you.

Not getting involved. Another mistake young lawyers make is not getting involved - not getting involved in bar associations, not participating in presentations to trade groups or not writing articles. Again, the strain and demands of the billable hour makes such pursuits difficult. However, you have to find the time to pursue those interests. Those are the interests that will help you develop the relationships that you need to prosper as a lawyer.

The Art of Cross Examination

2008-07-05T08:36:00.002-04:00

I grew up watching L.A. Law. My favorite character was Michael Kuzak, the firm’s hotshot trial lawyer. Nobody cross examined witnesses like Kuzak. You knew when he stood up in the court room, buttoned his jacket and approached the witness stand, something big was going to happen. By the end of his cross examination, Kuzak had destroyed the witness and with him, the opponent’s case. Nobody did it like Kuzak.

Real life is not as exciting as L.A. Law and cross examination is not as easy as Kuzak made it look. But by following a few simple rules, you can make your cross examination just as devastating.

An effective cross examination starts at deposition. Some attorneys wait until trial to prepare their cross examination outlines. That’s too late. You need to try out your cross examination questions at deposition. In fact, every question you intend to ask at trial should be asked at deposition so you know what answer to expect at trial. If it’s an answer you like, then you have a ready made question for trial. If not, dump it. If it did not work at deposition it won’t work in front of six jurors.

Don’t ask a question if you don’t know the answer. Something you have heard over and over is that you don’t ask a question at trial unless you already know the answer. Trial is not the time to be surprised. Be surprised when you investigate your case, when you receive responses to interrogatories or at deposition. But don’t be surprised at trial. But how do you find out the answers to the questions you intend on asking? Simple. You find out the answers in deposition. Do your work in deposition to take the guess work out of trial. When you’re at trial you will know what the answers are because they will be in black and white in the deposition transcript.

Prepare a cross examination binder. Prepare a cross examination binder for every witness you will cross examine at trial. The binder will contain your cross examination outline and your impeachment materials.

First, prepare a detailed cross examination outline. Start by brainstorming the topics you want to address during your cross examination. Such a topic could include witness bias. For each topic area, prepare a two column chart. On the left column, include all the questions you intend to ask the witness. I suggest, however, that instead of writing out the questions, that your write out the answers you expect to elicit from the witness. At trial, when you look at your outline and see the answers, you’ll know what question to ask.

In the right column, across from each answer you intend to elicit, cite the source of that answer, whether it’s page 12 from the witness’s deposition, the ER admission note or some other document. If you can’t find a source for the answer, don’t ask the question. Why? Because if the witness does not give you the answer you want, the one you have written down on your outline, you won’t have anything with which to impeach him.

That brings us to the second part of your cross examination notebook. Behind your outline, keep all your source documents, your defacto impeachment materials. The document you’ll be relying on the most will be the witness’s own deposition, where months, or perhaps years before, you tried out all your cross examination questions.

Ask only leading questions. Cross examination is not the time to ask the witness to tell his story. Don’t ask open ended questions. Ask only leading questions which suggest the answer. You want to direct the witness to give you the answers you have in your outline. Don’t give him the opportunity to say something else by asking open-ended questions.

Don’t use the word “correct” at the end of your questions. Don’t end your leading questions with such words as “correct” or “isn’t that so.” In fact, don’t ask questions. Instead, make statements and get the witness to agree to them. Instead of saying, “You treated the plaintiff on January 23, 2003, correct?” simply make the statement, “You treated the plaintiff on January 23, 2003.” You’ll get the same answer whether you ask the question or put it in the form of a statement. Such words as “correct” detract from the power of your cross examination and if used at the end of every question, become distracting and downright annoying.

Ask “yes” questions. When you ask leading questions, you want to ask questions that require only a “yes” answer. You want the witness to agree with you and say “yes” to your questions as often as possible. You want the jury to see and hear the witness agreeing with you time and time again. “You’re an orthopedist.” “Yes.” “You treated Mr. Smith.” “Yes.” “At the request of his attorney.” “Yes.” “And you charged his attorney $600 for that examination.” “Yes.” “An examination which took twenty minutes.” “Yes.” The more the jurors hear the witness saying “yes” to your questions, the more the jurors will perceive that the witness is agreeing with you and with your position.

Only include one fact per question. Avoid asking long-winded questions that are overburdened with facts. Keep your questions simple and only include one fact per question. By doing this, you keep your cross examination clear and crisp. Also, it’s easier to impeach a witness about a single fact as opposed to a whole host of them. In addition, single fact questions increase the number of questions you can ask the witness to which you will get a “yes” answer. You would rather have the witness say “yes” to you 50 times than 5 times.

Don’t argue with the witness. Sometimes cross examination does not go as planned. A witness trips you up, and despite your best efforts, you don’t get that “yes” answer you expected. Some attorneys would argue with the witness. If you find yourself here, stop. Consider moving on to the next question on your outline.

Start Strong. End strong. When you’re organizing your outline into topic areas, start with a topic that makes a strong point and end the same way. Consider starting with the witness’s bias. By doing so, you color all the witness’s answers.

Don’t ask the ultimate question. It’s tempting, after getting the witness to agree with you again and again, to ask the ultimate question. Don’t do it. Very rarely will you get the answer you want. For example, if you’re cross examining the Plaintiff’s treater, you may ask 30 or more questions detailing every time the plaintiff did not show up for physical therapy. You will leave the jury with the impression that the plaintiff did not comply with doctors’ orders and, in the process, may have compromised his condition.

But whatever you do, don’t ask the witness the ultimate question. For example, don’t ask the doctor the following: “By not going to physical therapy, you agree, doctor, that plaintiff compromised his outcome?” The doctor won’t agree with you. He’ll find some way to explain how plaintiff’s repeated non-compliance had absolutely no affect on the plaintiff’s outcome. It’s tempting to ask that ultimate question. Do it at your own peril. Instead, argue the ultimate point in your closing.

If you insist on asking the ultimate question, do it at deposition. In fact, I strongly recommend you ask ultimate questions in deposition. Every once in a while you’ll get a witness to agree with you on that ultimate question. If they do, ask it again at trial. If the witness refuses to agree with you, impeach him with his deposition testimony.

Effective cross examination comes down to preparation. If you want to get the answers you want, you need to lay the groundwork long before trial commences. Because in real life, unlike television, you don’t have a group of writers scripting a devastating cross-examination.

Know Your Opponent

2008-06-28T20:32:00.004-04:00

If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.

- Sun Tzu

When I get a new case, the first question I want answered is, "Who is opposing counsel?" The answer to that question will shape the strategy I employ, the resources I use and the goals I set. Knowing your opponent is crucial in knowing how to handle your case. Is opposing counsel practicing outside of his field of expertise? Has he lost his last six trials? Or does he have a top flight reputation, an attorney who only accepts cases he believes he can win and win big?

But how do you learn these things? How do you get an accurate picture of whom you’re up against? Consider the following suggestions when sizing up opposing counsel:

Search Martindale Hubble. Use Martindale Hubble online. It’s easy to use and it’s free. It will let you know whether opposing counsel is rated and will provide you some general background information, including what law school he attended, year admitted to the Florida Bar and academic and bar accomplishments. It also provides a link to the attorney’s web page.

Search the attorney’s web page. After visiting Martindale, visit the attorney’s web page. You can learn a lot about a firm just from how its web page looks. Is it professional looking? Does it look like the firm invested some time and money developing its web page? Does the firm even have one?

Look up the attorney’s profile on the web page. Has he published any articles? Are they on the webpage? You may want to print and review them. Has he received any awards? What are the attorney’s practice areas? Does he practice in a specialized area? Is he a jack of all trades?

Search the internet. Do a Google search for the attorney on the internet and see what you find. Perhaps you’ll find one or more of the articles he has written. Perhaps you’ll find an article about him and his practice. Perhaps you’ll come across an article where he is quoted on a given legal issue.

Perform a jury verdict search. Go on Westlaw and perform a search of all of opposing counsel’s jury verdicts. How many cases has he taken to trial? How often has he won and how often has he lost? When he wins, how big does he win, and when loses, how badly does he lose? What types of cases does he take to trial and what types of cases does he win once he gets there?

Do a caselaw search. Do a search on Westlaw of any appellate opinions where opposing counsel wrote a brief, whether for the appellant or the appellee. See if his arguments convinced the appellate court to find in his favor.

Ask friends. What do attorneys whom you know and respect say about opposing counsel? Is he good at what he does? Can he be trusted? Is he aggressive? Overly so? Or is he mild mannered and easy to get along with? Is he the type to conceive and implement long term strategies or does he does he shoot from the hip?

Check with the Florida Bar. Call the Florida Bar and ask if opposing counsel is an attorney in good standing. Has he been suspended or reprimanded? An attorney with a history of ethical problems may prove problematic.

Read. Read legal news columns. Read similar columns in your local business newspapers. Get accustomed to reading what your potential opponents are doing -- whether they have been appointed to a board, given a lecture or recently switched firms. Keep abreast of what attorneys in your community are doing. That attorney you read about today may be on the other side of the "v" tomorrow.

When you first get a case, don’t just research the facts and the law. Research opposing counsel. What you find may be more useful that what you find in the law library.

Life at the Firm

2008-06-22T12:48:00.002-04:00

A law firm is a microcosm. It is a miniature universe, with its own inhabitants, its own rules and its own social construct. To survive in it, you must play the role of anthropologist - you must study this world - its social order, its social behavior, its laws, its politics, its values and its beliefs. And to thrive in it, you must abandon your role as anthropologist and become part of the tribe, you must stop observing this world and start adapting to it, embracing it and making it your own. Do less and run the risk of remaining an observer, an outsider, never becoming part of the clan. Outsiders don’t stick around. They either leave to observe the next tribe or are asked to do so.

So life at the firm begins with learning about life at the firm. No doubt, you will make the following observations:

There is a hierarchy. Like any society, a firm has a hierarchy. As a new member of the society, you start at the bottom. Ignore the pecking order, presume your stature is greater than it is, and you will upset others, namely those above you whom you perceive are beneath you. Being that they are above you, they have the power to make things easy for you or make them difficult. What they do is largely a reaction to what you do.

The firm has a code. Each firm has its own rules, a code if you will. Some are written down, such as in an employee handbook. Most are not. No doubt, you were introduced to some of them during your interview. You picked up some more during lunch conversations with other attorneys. Some rules are obvious and some are universal to every firm.

The hard part is figuring out the not so obvious ones, the ones that define your firm and make it different from others. When are you expected to be in the office? When should you leave? Are inter-office e-mails encouraged? What should an inter-office memo look like? How about interactions with the staff? What is encouraged and what isn’t? To learn the code, seek out a mentor, a senior associate or junior partner, who can teach you the code in its entirety.

Each attorney has a code. In addition to the firm code, every attorney abides by his own code - a set of rules, eccentricities and pet peeves, by which he lives. Some are reasonable, some are not. Some make sense, some do not. Your job is not to tell these attorneys to stop insisting that others do things their way. Your job is to do things their way. Learn each attorney’s writing style, research methods and drafting techniques. Learn how they interact with clients, with other attorneys in the office and with the staff. They do things their way because they believe it is the right way to do things. If you want them to perceive you’re doing things the right way, emulate them. Conversely, learn their pet peeves, and avoid them.

The firm has values. Each firm has a set of values. Some are explicit and can be found in their mission statements. Others are less obvious. Whatever they are, they guide the firm. You will be expected to live by them. If you do not share the firm’s values, if you do not share the firm’s vision, you will not thrive there.

The firm has a dress code. Each law firm has its own dress code. Some expect you to wear a suit each day, some are casual year round, and there are many permutations along the spectrum. But what is considered dressing up and what is considered casual? As with everything else, you need to observe what is considered appropriate and acceptable attire and emulate it. This may require some adjustments in your wardrobe. This will be money well spent.

You’re in or you’re out. If you are going to join a firm, you have to jump in with both feet. Sticking your toe in the water isn’t going to do. You have to embrace the firm’s goals, its mission, its values, its structure, its rules and its hierarchy. Do less, and you will never truly belong. Do less, and you will remain an observer. And the days of an observer are always numbered.

Getting Published

2008-06-14T13:10:00.001-04:00

If you want others to see you as an expert in a given practice area, consider getting published. Published articles tell others that what you have to say is important enough and authoritative enough to be in print. But how do you get your article published? Consider the following in order to get your idea read by hundreds, possibly thousands, of others.

Brainstorm. So what do you want to write about? Sit down and brainstorm different ideas worthy of being transformed into articles. Where are you going to find your sources of inspiration? A landmark U.S. or Florida Supreme Court decision can serve as the basis of an article. How about a recent legal trend? A "how to" piece on how to take a deposition or retain an expert? How about an issue a client has asked you to look into? If you’re going to be a writer, always be on the lookout for ideas and ask yourself, "Would this make a good article?" Once you start thinking like a writer, you’ll never be short of ideas to turn into publishable pieces.

Compile a list of potential publishers. Before you sit down to write, decide where you want to get your article published. Compile a list of publications, including trade journals, newspapers, magazines and newsletters, which might be interested in your idea. You don’t know which publication to pitch your idea to? Most bar and trade associations have their own magazines and newsletters, and their editors are always looking for articles to fill the pages of those publications. If you can’t think of any publications to write for, look at the web pages of these associations to see what publications are out there.

Read the publications you want to write for. If you’re going to write something a magazine wants to print you first have to know what it wants. To do this, you need to read the publication. Don’t pitch a story without first knowing what types of articles appear in the pages of that publication.

Read the writer’s guidelines. Many publications provide guidelines about what articles they are looking for, how they want articles pitched, and to whom. Read them carefully and follow the recommendations.

Write a query letter. Once you know who you’ll be writing for, write a letter pitching your idea. In the letter, provide a brief summary of your proposed article, a proposed title, why the piece is relevant to the publication’s readers, your qualifications to write the article and a brief history of your writing experience. To save money on postage and speed up the process, determine whether the publication accepts email queries.

Study the masthead. Most magazines and journals have a masthead, which contains the name of their various editors and staff writers. The list is important, because it will tell you who the different editors are and which one you should address your query to.

Update your resume. The editor you’re pitching your idea to will likely ask to see your resume. Therefore, make sure yours is updated. Include any writing experience and editing experience you have, whether as an editor on law review, a writer for the school newspaper or a contributor to a firm newsletter.

Start small. If you want to see your article in a national magazine or trade journal, start out small and work your way up. Generally, the bigger the publication, the more likely that it does not work with novice writers. Those big publications are looking for authors who have written articles elsewhere and have a proven track record. Generally, the smaller publications are open to working with new writers. Start small, get some experience and climb the ladder to the bigger magazines and trade journals.

Gather clips. Make sure to save any articles, or clips, you publish. Editors will want to see them to get a flavor of your talent and style.

Avoid editors’ pet peeves. If you want to increase the odds that your article will be accepted for publication, avoid the pet peeves of the decision makers. Make sure your query is flawless, with no typos or grammatical errors. If an editor doesn’t want you calling to pitch an idea, don’t. If you’re given a deadline, meet it. If you’re asked to make revisions, make them. Trust that the editor knows best about what the final piece should look like.

Writing an article is only half the work. The other half is getting it published. To get your article published, look for publications which would be interested in your idea, and when you find them, pitch your idea in a persuasive, convincing way. Start out with the smaller publications, and soon you’ll have enough clips to see your name bylined in a piece which is read nationally.

What Judges Expect from the Lawyers Who Appear Before Them

2008-06-08T15:49:00.002-04:00

Having attended my share of motion calenders, special set hearings and judicial receptions and luncheons, I have been afforded the opportunity to hear what judges expect from the lawyers who appear before them. What never ceases to amaze me is how uniform their expectations are. Some are obvious. Others are not. However, they all bear repeating:

Be respectful to the court. Never interrupt the judge or speak over her. Surprisingly, it happens more than you think.

Be respectful to opposing counsel. Never interrupt, belittle or berate opposing counsel. Also, never address opposing counsel. Your arguments are always to be directed to the court.

Don’t mislead the court. If the court misunderstands the facts or misconstrues the law, set the record straight. The misunderstanding may benefit your client, but it is an underhanded way to get the upper hand. And by the way, the judge likely will find out that you snookered him. Nothing upsets a judge more than feeling taken advantaged of by the attorneys that appear before him.

Do your best to work things out before appearing before the judge. Most judges agree that many of the motions that land on their desk, particularly discovery disputes, should and could have been worked out without the need for a hearing. Attorneys need to treat the court for what it is - a last resort after they have exerted every effort to work things out on their own.

Don’t waste the court’s time. Judges have many more cases on their dockets than they should. So, not only should not you set for hearing motions that you should be able to resolve with a phone call to opposing counsel, you should make every effort to get to the point on those occasions when judicial intervention is warranted. Cut that ten page motion to six pages. Cut that six page motion to three. Reduce those five arguments to three and those three arguments to two or even one. Figure out the crux of your argument, articulate it succinctly and then stop talking. The court will find your brevity refreshing.

Judges talk to each other about the lawyers that appear before them. Many judges know that lawyers compare notes about the judges they appear before. Guess what? Judges compare notes about the lawyers that appear before them. That lawyer who was rude and obnoxious, who thought that it did not matter because what does one judge’s opinion matter? Well, that judge, who was taken aback by that behavior, may have share the experience over lunch with his colleagues, who will remember those comments the next time that attorney appears before them. Everything we do before a given judge may affect how every other judge perceives us.

What you do reflects on your firm. Just as what you say before one judge may affect how other judges perceive you, what you say may affect how that judge and other judges perceive your firm. You are your firm every time you step before a judge. Your reputation is inextricably tied with your firm’s, and everything you say and do either improves that reputation or diminishes it.

Be self-deprecating. When you think of arguing a motion, humor probably does not come to mind. Of course you should never joke at the expense of opposing counsel or the court. But at times, injecting a bit of humor goes a long way in reducing the tension and stress, particularly if it is self-deprecating in nature.

Judges are no different than the rest of us, and they have the same expectations as the rest of us. Just as we expect good service with a positive attitude when we go to our favorite restaurants or retail stores, judges expect that the lawyers who appear before them to provide good service - to be prepared. They also expect them to do it with a smile, namely, to act professionally.

Travel Tips for Associates

2008-06-01T10:05:00.005-04:00

The next time you have to travel for a deposition, hearing or a meeting with a client, keep the following in mind to ensure that your trip goes off with a hitch.

Confirm everything. Confirm everyone’s attendance - the court reporter, the witness, opposing counsel, co-defense counsel. Have your secretary call everyone and confirm that they will be there. You don’t want to find out a key party can’t attend after you’ve already boarded the plane.

Make flight arrangements early. Once you learn you have to travel, make flight arrangements. The sooner you make them, the better fares you’ll get. Also, when reserving a flight, purchase refundable tickets. Often, hearings or depositions are canceled or rescheduled at the last minute. If that happens, you don’t want to be stuck with a non-refundable ticket.

Make sure your car rental agency has its vehicles on the airport’s premises. Time is money. Make sure if you’re going to rent a car, that the car rental agency has its vehicles at the airport. Taking a shuttle to an offsite facility can be very time consuming.

Get a weather report. Check the weather to ensure you’ll be dressed appropriately. Traveling from Miami to New York in January requires a change in wardrobe.

Find convenient accommodations. Instead of staying at a hotel near the airport, find a place close to the deposition or hearing site, to ensure you arrive with plenty of time.

Get detailed directions. Before you leave the office, get detailed directions from the airport to your hotel and from your hotel to the deposition or hearing site. And don’t rely on Mapquest. Online map sites can be wrong and confusing. Call ahead and obtain detailed directions directly from the hotel or the court reporter’s office.

Prepare an itinerary. Have your secretary prepare an itinerary that has all your travel arrangements, directions and any other relevant information. This one-page reference source will prove very useful as you from one from place to the next.

Take everyone’s phone numbers. Have everyone’s phone numbers, from the court report to opposing counsel, in case you need to reach them for any reason.

Allow plenty of time. Whenever you travel, allow plenty of time to get there. Assume there will be traffic, that airport security will be slow, that weather will be bad and that flights will get delayed. Plan accordingly.

Pack snacks. Sometimes you won’t have time to grab lunch when you’re running from the airport to your deposition. Pack some protein or snack bars in your briefcase in case of such an emergency.

Take extra work. Because you’ll be giving yourself plenty of time when you travel, you’ll face some dead time in the airport. Take extra work with you so you don’t lose precious billable time. A lot of things can go wrong when you travel for work. You can avoid most problems by planning ahead. Plan wisely.

Drafting Requests for Production - Getting the Documents You Want

2008-05-24T14:40:00.001-04:00

In litigation, the right documents can make the difference between winning and losing. In your pursuit of the smoking gun, make the most of the requests for production you serve on the other side. Strong requests may get you the documents you need to win. Weak requests may get you little else than a mountain of objections. When drafting requests for production, consider the following:

Ask the opposing party to preserve all relevant documents. Along with your request, send a letter to the opposing party requesting that they preserve all the documents you consider relevant and provide categories of documents which are relevant to the case. By placing them on notice of the significance of given documents may serve as a basis for spoliation if they fail to preserve the documents.

Be specific. Broad requests invite objections from the other side. When they don’t, they produce mountains of paper, with little useful information. Tailor your requests to be as specific as possible so as to get the documents you really need.

Propound different versions of the same request. Sometimes, you know what category of documents you want the other side to produce but you don’t know how to draft the request without making it too broad or too narrow. When this happens, it is best to draft several versions of the same request, ranging from a broad request to a very narrow request. Multiple requests increase the odds of getting what you were looking for.

Request a privilege log. If opposing counsel objects to some of your requests claiming that you have requested privileged documents, request that he produce a privilege log which describes the nature of the documents which he claims are privileged. Parties who claim a privilege must produce privilege logs or run the risk of waiving that privilege. By forcing the other side to produce a privilege log, you may cause them to take a hard look at their privilege objections, realize some of them are unfounded and produce some documents.

Use contention requests for production. As you can do with interrogatories, propound contention requests for production. Such a request would entail asking the opposing party to produce all the documents which support a given allegation in his complaint or an affirmative defense asserted in his answer. By doing so, you can acquire all the documents the other side claims supports his case.

Don’t leave to interpretation to opposing counsel what you meant. There are attorneys out there who will try to construe your requests as narrowly as possible so as not to produce any documents. To limit this from happening, prepare a definition section, and define all the terms you’ll be using your request and define them so that the opposing counsel knows exactly what you’re asking for.

Agree with opposing counsel to bate stamp all documents. In some cases, the number of documents produced is inconsequential, making bate-stamping a novel, but unnecessary procedure. However, in most cases, many documents will exchange hands. To facilitate the use of these documents during the course of litigation, secure an agreement with opposing counsel that whenever anyone produces a document, he will bate stamp it.

Take time to draft meaningful requests for production. A single request may result in the production of a smoking gun.

How To Improve Your Research Skills

2008-05-17T17:14:00.002-04:00

Lawyers often complain that law school did not teach them how to be lawyers. Maybe it taught them how to do research, how to write, but not how to practice law. The fact is, we lawyers don’t know how to research, how to really research, until we leave law school and start practicing. Research for law school briefs and moot court competitions is not the same as when everything is on the line and the outcome depends on the cases you find. As you hone your research skills to find that much sought after case, consider the following:

Understand the issue you are researching. Before you run off to the library, make sure you know the issue you are researching. This is an obvious point, but how many of us have gone back to the partner only to find out we were going down the wrong path. It’s better to risk looking foolish by asking questions when you first get an assignment rather than guarantee looking foolish by wasting two hours in the library.

Know the facts of the case. Don’t settle for knowing what issue to research. You need context. Find out all the facts of your case, so that when you start researching you know what fact patterns to look for in the cases you read.

Ask around. Before you run off to the library or jump on Westlaw, ask other associates if they have done the same research. Perhaps your office has a document management system in place such as Imanage that allows you to search all office memos for key words. Such a search may pull up a memo identical to the one you were about to prepare.

Go from general to specific. Before you start researching cases and statutes, read through treatises to obtain an overview of the subject matter you are researching. This overview will help put into context the cases you find which address your issue.

Use the right tools. Rely on the correct tools to get the job done. There is a plethora of treatises and reference books out there. If you have any sway in what books your law firm buys, ask for the leading reference books that apply to your field.

Use key numbers. Once you have read through the relevant legal articles and treatises, it is time to start looking up cases and statutes. If you’re a new attorney, chances are you do all your research on Westlaw. If that’s the case, become accustomed to doing key number searches. Westlaw has taken every legal issue imaginable, and has assigned it a key number. Click on the key number that references your issue and up pops every headnote in every case addressing that issue. By doing this, you can feel assured that you have found every case on point.

Find cases involving your jurisdiction. Make sure you have found all the relevant cases in your jurisdiction.

Find cases involving your Judge. Even more important than finding a case in your jurisdiction is finding a case involving your judge. Do a word search for your judge’s name and see what cases you come up with. See when his opinions have been upheld and when they have been overturned.

Lean on a Westlaw representative. If you use Westlaw, you have access to hundreds of research attorneys whose only job is to help you find the cases you want. When your research isn’t producing fruit, don’t be shy to pick up the phone and ask a Westlaw representative for some help.

Chase the rabbit. During your research, you may find a few cases that address your issue. Don’t stop there. What other cases do those cases cite? Look them up and read them. What cases cite the cases you found? Look them up and read them. Keep doing this until you have reviewed every case addressing your issue. Don’t be satisfied until you’ve gone down every rabbit hole.

Take your time. Good research takes time. It takes time to read treatises and law review articles. It takes time to read cases, to key cite them and to read those cases. Take the time. It can be the difference between a winning and losing motion.

At first glance, research seems simple enough. That is, until that case your boss insists is out there, the one he read in the advance sheets six months ago, becomes elusive. Then, you have to muster all these skills to track that case down.

How to Write a Motion in State Court

2008-05-10T12:57:00.003-04:00

If you only had thirty seconds to convince someone of your position, what would you say? Whenever I write a motion, I have the attitude that I have thirty seconds to convince the judge that my position is the right one. I have one page, maybe two, to grab her attention and convince her I’m right. Thirty seconds. The rest of the motion is spent proving I’m right. Here’s how to do it:

Start with a strong introduction. In a sentence or two, tell the court why your position is the right one. Hit the ground running with a strong start that makes your case.

Get to your point. Let the court know why you are seeking relief. Do not leave her guessing why you filed your motion.

Stick to your point. Once you make your point, stick to it throughout the motion. Don’t wander off the path. Digressions distract.

Support your point. Once you make the point, support it with the law. Do your research and find the cases that support your positions. When doing research, think outside the box. Do not limit yourself to cases and statutes. Find law review and Florida bar journal articles. Cite Florida Bar publications, such as the Discovery Handbook.

Confront your weaknesses. If there are cases that hurt your position, confront them. Don’t ignore the other sides strengths. Point them out to the judge and show why you win despite them.

Less is more. Keep the motion brief. Say as much as you can with as few words as possible. Judges are busy. A three page motion that makes a strong point is better than a ten page motion that makes no point at all.

Use the Active Voice. The subjects of your sentences should not be victims. Things don’t happen to them. They make things happen. Speak in the active voice. Avoid passive verbs such as "is" or "was." Active sentences are clearer and get to the point faster.

Edit, Edit, Edit. Don’t be happy with your first draft, your second, or perhaps even your third. Edit out the excess sentences, phrases and words. Make sure your argument holds water, the transitions are smooth and the word choice is proper.

Speak plainly. Avoid legalize and ten dollar words. Use short words, direct sentences, and avoid the "heretofores" and the "saids."

Speak confidently. Don’t be bashful. If you are not confident about your position do not expect the Judge to be.

Make it a good read. You may not be John Grisham but that does not mean your motion should put a judge to sleep. Make your writing strong, persuasive and interesting.

Make it clear what relief you are seeking. Don’t simply ask the judge for relief. Be specific about the relief you are seeking.

Do not overstate or misstate. Remember your job is to persuade, not misrepresent. If a case does not support your position, do not say that it does.

Do not take personal shots. Keep it professional. Do not attack the other side or opposing counsel. Do not confuse being an advocate with being a jerk.

Attach the relevant documents. If you are going to reference a document or affidavit, attach it to the motion so the judge can see it for herself.

When you write a motion, keep in mind that someone else is going to read it. Put yourself in the judge’s shoes and give her what she wants. Tell the judge what your position is, why she should agree with it and what relief she should grant. By doing so you increase the likelihood that the motion you drafted will be a winning one.

Who Should Conduct a Medical Examination?

2008-05-03T15:45:00.002-04:00

Whether you call it an "independent medical examination," "a defense medical examination" or "compulsory medical examination," your first decision is whether to subject the plaintiff to one. Is his physical or mental condition at issue? Do you want that condition evaluated by an expert of your choice? If so, you need to decide who should conduct it. When choosing an expert to evaluate the plaintiff, consider the following:

Do you need the plaintiff examined by more than one specialist? Perhaps the plaintiff has physical and cognitive injuries? If so, you may need to have him examined by both a neurologist or orthopedic surgeon and a neuropsychologist. Perhaps a third and even a fourth examination may be in order (an ophthalmologist for an injury to the eye, a vocational rehabilitation counselor to evaluate earning capacity, etc). If you plan on subjecting the plaintiff to multiple exams, it is best to get plaintiff’s O.K. first. If he refuses, seek court intervention. You want to resolve the number of medical examinations before setting the first one, because you don’t want to start setting medical examinations and then have to abandon one or more, perhaps the most important ones, because the court has determined you already have subjected the plaintiff to too many exams.

What kind of expert do you need? Once you’ve isolated the injuries or conditions that need evaluation, you need the find the right expert to evaluate them. Don’t settle for an expert in the general field related to plaintiff’s condition. Find an expert in the sub-specialty related to that condition. For example, if you want to evaluate whether a prescription drug caused a plaintiff’s stroke, don’t settle on a board-certified neurologist. Search out a board-certified vascular neurologist. If you want to examine whether a fall caused a plaintiff’s knee injury, don’t settle on a general orthopedic surgeon. Find one who specializes in knees. Better yet, find a sports medicine physician who specializes in knees. Always search out the expert who is best suited to evaluate the plaintiff’s condition.

Search out the best. When looking for an expert, find the best. Don’t settle for a second rate expert simply because you believe he will give you the opinion you’re hoping for. If the expert is going to be convincing, not only to the jury for purposes of trial, but to opposing counsel for purposes of settlement discussions, search out the best expert available.

Start with looking at the websites of Florida’s medical schools. Look for the chairs of the departments, the ones who went to the ivy league schools, who were chief residents, who have a long list of publications and are frequent lecturers. You are looking for the best of the best. If you found someone who has been named the Best of America’s Doctors year after year and has a 30-plus page resume, you’ve likely found your expert.

Of course, chair or co-chairs of departments tend to be busy. Sometimes you have to schedule medical examinations with them months in advance. Sometimes, they simply don’t do medical examinations for litigation. If so, keep going down the list of tenured professors until you find someone that fits your needs and has an impressive resume.

Confirm the expert is the best. He looks good on paper, but how do you know the expert lives up to the resume? Ask for references - the names of attorneys who have previously retained him. Find out the type of expert he really is. Just as important, find out the type of witness he is - how does he perform at deposition? How about at trial? It does not matter if you have a brilliant expert if he can’t put two words together when staring at a jury.

When retaining an expert to conduct a medical examination, take the time to find the right expert to evaluate plaintiff’s condition. The right one with respect to his curriculum vitae and also to the type of witness he will make.

Finding the Witnesses You Need

2008-04-26T10:17:00.002-04:00

How do you find that ever elusive witness? The one who saw the accident but no one can find? The former employee who has first knowledge about the negotiations to a contract, whose last known phone number is disconnected? It’s time to start playing sleuth and tracking down the witnesses you need to prove your case. How? Consider the following.

Who are you looking for? First things first. You need to figure out who the relevant witnesses are. Ask your client for the names of everyone he knows who has or may have information about the case. Look at all the documents and see whom they reference as potential witnesses. Think of categories of witnesses who should have relevant information - eyewitnesses, investigators, foreman, supervisors, family, friends, neighbors - and then try to figure out whether any witnesses exist in any of these categories. Your first job is to compile a list of every potential available witness and then devise a game plan. Decide which witnesses you can and should locate, and think through how you are going to find them.

Let your fingers do the walking. Once you know whom to look for, do a white pages search on the internet for the witness. Chances are you’ll find their phone numbers and addresses with just a few taps on the keyboard.

Google them. If the white pages don’t produce fruit, do a Google search of the witnesses you are looking for. You may find their Myspace page, or their blog, or an article about them, or their high school reunion site - something with their contact information. With the internet, anonymity is hard to find.

Ask the other witnesses. One witness probably knows not only the names of other witnesses you’d be interested in interviewing, but how to reach them. Let your witnesses help you find other witnesses.

Review the documents. Just as you check with your witnesses, review your documents for potential contact information for other witnesses.

Knock on some doors. If phone calls are going unanswered, get in your car and go knock on some doors in hopes of finding those elusive witnesses.

Hire an investigator. If all else fails, hire an investigator to find that witness that you cannot. That’s what investigators do. If the witness is important enough, recommend to your client that he incur the cost of an investigator’s services to find that witness on whose testimony the case may turn.

Using Your Depositions to Win

2008-04-19T23:10:00.001-04:00

Why take depositions? You take them to advance your case. You take them, because they will support a motion for summary judgment or because they will strengthen your position at mediation or because they will help you prevail at trial. You take them because they help you win. Before you take your next deposition, think through how it helps you win the case.

Take a deposition to lay the foundation for a summary judgment motion. Summary judgments are won or lost on the facts. Look at the relevant jury instructions, statutes and cases, and determine what facts you need to elicit to lay the groundwork for a successful motion for summary judgment. Sometimes you’ll come across a case similar to yours, where certain facts led the appellate court to affirm a motion for summary judgment. Use that case as a guide. If you can elicit the same facts in your depositions as the facts referenced in that case, then you can reference the facts you elicit and the case you found as the foundation for a successful motion for summary judgment.

Take a deposition to improve your settlement posture. If you can dismantle the other side’s key witness in deposition, then you’ve gone a long way in changing your client’s position when it comes to settlement talks. Think through why the other side thinks this witness makes his case and breaks yours and ask the types of questions that cuts that witness down to size.

Take a deposition to prevail at trial. What are the admissions you would want to hear at trial? What are the statements you want the jury to hear? Think through the themes you want to have reverberate through trial and then think through the facts and statements that play into and support those themes. Working backwards from there, use the depositions to build a foundation for those themes. Remember, you never want to ask a question of the witness at trial you don’t know the answer to. Therefore, you want to use depositions to get the admissions you need, because if you didn’t ask the questions at deposition you run a huge risk asking them for the first time at trial.

Before taking your next deposition, consider how it advances your case. How it proves one or more of the elements of the cause of action or undermines one or more of the affirmative defenses if you’re plaintiff’s counsel, or how it undermines one or more of the elements of the cause of action or supports one or more of the affirmative defenses, if you’re defense counsel. If the deposition doesn’t accomplish any of this, consider whether it is worth taking at all.

Getting Past the Fear

2008-04-12T08:32:00.001-04:00

Here you are. A litigator tackling a large caseload, attending hearings, taking depositions and preparing for trials. You remember law school with some nostalgia now that you’re at a job where you’re called upon to make important decisions every day. Sometimes it’s challenging. Sometimes it’s overwhelming. Sometimes it’s downright frightening. And sometimes that fear can get the best of you. How do you tackle the fear and make it work for you? Consider the following suggestions.

Accept failure. You will make mistakes. Every associate does. It’s part of the job description. When you make them, learn from them and move on. Don’t dwell on them. Don’t let them color your perspective or define who you are. When you fail your life won’t end, you won’t lose your job and others won’t think you’re an idiot. Because they too have made mistakes. And you know what? They’re still making them.

Accept your limitations. Fear is often a byproduct of getting in over your head. Now, don’t get me wrong. It’s important to challenge yourself, to strive beyond what other attorneys at your level are doing. However, take it too far, and you’ll quickly find yourself in unfamiliar territory, making decisions without having a frame of reference to make them. Don’t stray far from the supervising attorney. Her direction will ensure you stay on the right track and the proximity will give you piece of mind.

Get ahead of the curve. In law school, you learned the law. Now you realize that knowing the law is not enough. You have to learn how to get things done. Not knowing how things work, how the process works, can be disabling. "Am I making the right decision?" "Am I doing the right thing?" "The right way?" The faster you can learn how things work, the faster you’ll overcome the uncertainty.

But how do you get ahead of the curve? A great way is to attend CLE seminars or listen to CLE tapes that address the mechanics of being a lawyer. In addition, you can find a lot of practice pieces in bar association newsletters, magazines and peer reviewed journals. Most everything you didn’t learn in law school has been reduced to writing by some attorney who doesn’t want you to make the mistakes he did.

Research the outcomes of your decision. Not knowing how things will turn out is unsettling. "What will happen if I choose option X?" If you’ve never chosen option X before, you’re not sure what the possible outcomes may be. However, others have been in your shoes. Ask other attorneys at your firm what they’ve done and why they did it.

Your decision may turn on what the law says. If that’s the case, you need to research what the law says. When you first get a case, you should research the elements and defenses of the case. That way, you know what plaintiff needs to prove and what the defendant needs to disprove. This information will provide you a roadmap to where the case should go, and knowing where to go will do a lot to alleviate the uncertainty.

Fear is natural. Being at a new job, dealing with new people, tackling new situations can be unnerving. Get ahead of the fear. Don’t settle with tackling problems as they come. Take the time to read, and study and learn how more experienced attorneys deal with the problems you will be dealing with, so when they come, you’ll be prepared. You’ll react with knowledge, not with fear.

How to Prepare for a Hearing in State Court

2008-04-05T13:05:00.002-04:00

As a new lawyer, you often feel like the underdog, especially when it comes to arguing motions in state court. More often than not, your opponent is more experienced, more suave, more in control. He knows everyone in the courthouse by their first name, whether they are attorneys, judicial assistants or bailiffs. Even the judges go out of their way to say hello to him. How can you compete? Preparation can go a long way toward leveling the playing field. The following are some tips to consider.

Pick your fights wisely. Is it wise to file the motion? Is the law on your side? What are the odds the judge will grant your motion? Does the motion really serve my client’s interests? Having a winning track record at arguing motions begins with knowing what battles to fight and which ones to walk away from.

Try to work it out with opposing counsel. Before you draft a motion, call opposing counsel and try to work it out. You may save yourself the time and expense of the motion. If not, you can let the Court know that you tried to work things out.

Keep the motion simple. In state court, particularly during motion calender, courts are swamped with dozens of motions. Make your motion short, simple and to the point. In my motions, I tell the judge up front the relief I am seeking and why I am entitled to it.

Learn everything you can about your judge. Ask around your office about your judge. Is she plaintiff or defense oriented? Is she slow to impose sanctions? Also, obtain a copy of the judge’s protocols for setting and arguing motions. In addition, do a search on Westlaw for all the cases where your judge has been upheld or overturned. One of these cases may address the same issue you raise in your motion.

Learn everything you can about opposing counsel. Look up your opponent on Martindale-Hubble. Also, look at the attorney’s web page to learn about his area of expertise, years of experience, whether he’s been published and anything else to get a sense of his strengths and weaknesses.

Be courteous when setting the motion. Before you set a motion for hearing, clear the date with opposing counsel. Also, be courteous to the judge by not setting motions on motion calender that will take more than five minutes to argue. Some judges have a list of the type of motions they refuse to hear on motion calender.

Send the court a courtesy copy. Send the court a courtesy copy of the motion and a copy of all the cases cited in the motion, with a cover letter informing the judge the date and time of the hearing.

Order a court reporter. Consider ordering a court reporter. Sometimes, opposing counsel or the judge will address issues you were not expecting. It is good to have a transcript of these digressions. Also, parties cannot always agree to the language of an order, claiming the judge said one thing or another. A transcript often resolves these disputes.

Make sure you made the calender. A day or two before the hearing, make sure you made the judge’s calender. Also, confirm with opposing counsel and the court reporter that they will be attending the hearing.

Prepare a hearing file. Prepare a hearing file containing the following: (1) notice of hearing; (2) two copies of the motion (the second copy for the judge if the courtesy copy you previously sent is not at arm’s length); (3) three copies of all the cases, with the relevant portions highlighted; and (4) a blank order (most judges prefer the form orders with the carbon paper).

Introduce yourself and your case. At the hearing, say your name, your client’s name and the title of your motion. Give a brief description of the facts of the case and present your argument clearly and succinctly.

Be professional. Don’t interrupt opposing counsel or the judge. Don’t raise your voice or become upset. Don’t allow yourself to be baited by opposing counsel. And don’t argue after the Court has ruled.

Make a record. Have the judge make a ruling on the record, and try to have the judge address all the issues you raised in your motion. If you filed a motion to compel and for sanctions, have the judge address both issues. If the judge rules against you, do your best to have her limit her ruling. For example, if she denies your motion, have her do so without prejudice.

Prepare the order before leaving the courthouse. If possible, prepare the order at the conclusion of the hearing. That way, if a dispute arises over the language, you can go back to the judge and ask her to resolve the dispute.

My Sons' Eyes

2008-03-29T19:02:00.002-04:00

I sometimes wonder if the sun envies me. I get up before it rises and return home after it sets. In the morning I kiss my wife Ana, and my two boys, David, 9, and Michael, 6, goodbye and head off to work. As I drive off, the last thing I see are my boys, standing in the front doorway in their pajamas, waving and smiling, yelling their last goodbyes. I always remember their eyes. Those eyes don’t see a tired man, lugging a brief case like a life sentence, worried about the hearing that morning or the deposition that afternoon. They see only "Daddy," bigger than life, bigger than any problem, real or imagined.

During one of the morning goodbyes, David looked at me, looked at the sun rising over my shoulder and shouted, "Look Daddy! You’re bigger than the sun!" Yes, bigger than the sun, bigger than any obstacle or problem. A superhero of sorts. No cape, no tights, no bat cave or designer costume, but a superhero nonetheless. Because you see, in my sons’ eyes, Daddy is immune to Kryptonite. That’s what my boys see when they look at me. I take that look to work and conquer the day with it.

There’s power in those eyes. I want to be the man they see. The one who does the right thing, not the easy thing. The one who confronts adversity, not runs from it. The one who keeps his head while those about him are losing theirs. I want to make those boys proud, to live up to their image of me. I don’t want to do anything to make that look in their eyes wane. I’m not naive. They will grow up, become teenagers, see me differently. I’ll look smaller in their eyes. But I’m going to do my best not to contribute to my own diminution.

Those eyes define professionalism for me. It’s not about rules, codes of conduct, mission statements or a list of dos and don’ts. It’s about being the man my boys see, the man I want to be. For me, professionalism simply begins and ends by asking the question, "Would my sons be proud of my actions?" What would they think about my conversations with opposing counsel? The questions I ask the witness at deposition? What I tell the judge at the hearing? They’re a constant presence in my life, even when I’m in the office and they’re back at home watching Barney.

Sometimes when I’m sitting in my office I can almost see my boys, sprawled on the carpet, their Spider Man coloring books open, crayons everywhere. Other times, when I’m typing on the computer, I can almost feel David’s breath on my neck, his fingers on my shoulder. I act as if they’re right there in my office, in the deposition room or in the courthouse. I deal with opposing counsel as if my boys are standing by my side, watching me. I write my motions and letters as if they’re peaking over my shoulder, asking me what I’m typing. Ask me about professionalism, about what it means to be a lawyer, and I’ll tell you about two little boys who idolize their father, who, with their eyes, push him to always be the man they see.

Each of us has someone who sees us for more than what we are. It may be a child, a spouse, a parent or a friend. We want to make them proud; we want to be the person they see. It is in striving to be that person that we pursue professionalism, true ethics. It’s more than following rules for the sake of following rules. It’s doing the right thing for the sake of those who matter. I try to do the right thing because my boys expect me to, and I do it to set an example for them, so that they’ll do the right thing too. Start looking deep into your loved ones’ eyes. You’ll find what it means to be a professional in those eyes, and you’ll find the inspiration to act like one.

What Being a Lawyer Has Taught Me

2008-03-22T20:36:00.001-04:00

The following are a few things I have learned during my short career as a civil defense attorney. As with most of my thoughts, they are in no particular order.

If you want to know a lawyer’s true character, see how he treats his secretary when he thinks no one else is looking. Better yet, how he treats the runner.

Professionalism is treating the cleaning staff that comes after hours the same way you treat the judge during motion calender.

You don’t need a pen and pad to write. Take advantage of the quiet times - the first few minutes after you wake up, when you’re in the shower, when you’re driving to work - to think through that memo or brief you’re stuck on or that legal argument that doesn’t quite work.

I would rather driver 3 ½ hours than go through airport security to catch a 45 minute flight.

I do my best writing while I’m driving.

Don’t let your standard of living increase every time your salary does. There’s nothing wrong with driving a car with over 100,000 miles or living in a working class neighborhood. Frugality gives you options in life.

But don’t be frugal when it comes to your shoes. You have to wear them 10 to 14 hours a day. How do you say good looking and comfortable? Two words - deer skin.

Learning from your mistakes is experience. Learning from others’ mistakes is wisdom.

Mentors are great. You get to learn from their mistakes.

Cross examination isn’t just for depositions or trial. You can learn a lot about what’s going on in your kids’ lives if you keep asking them questions.

I assume I don’t have much time on this earth. I live life like I won’t see my 40th birthday. I’m 36. It’s amazing the perspective you get when you think you have four years to live.

When you get to the hotel room, run the hot water and let the steam fill the bathroom. Hang the suits and shirts from your garment bag nearby. You’ll be surprised how many of the wrinkles will vanish.

The key to the practice of law is preparation. I would rather go up against an experienced lawyer who is lazy than an inexperienced one who works his butt off.

Never let another’s behavior dictate yours. No matter how obnoxious or insulting that other lawyer is, don’t respond in kind.

Take a long term view of things. It helps keep everything in perspective.

Always keep the client informed. Make sure the client knows what is happening in his case, what the problems are and what you are doing to address them. Listen to the client and seek his input when formulating a case strategy. Clients hate surprises. One surprise too many, and that client will look elsewhere for legal advice.

A client you speak with, write to and e-mail frequently is often very forgiving of the mistakes you make.

Your kids are always watching you. Live accordingly.

Work as if you’re kids are watching you.

Return messages promptly. In this age of Blackberries, Trios and other technology, the 24-hour-rule is an anachronism. Try 4 hours.

The attorney who was disbarred for misappropriating client funds started years ago by fudging on the little things. Don’t start down that path.

Learn how to use the postage machine. It’s only a matter of time until you’ll have to mail a letter after hours. While you’re at it, learn how to make two-sided copies, how to scan documents and how to send an overnight package.

Show me a lawyer who works hard and I will show you a lawyer, who sooner or later, is going to make it.

The Bible is right. You reap what you sow.

Instead of reading your kids bedtime stories, make them up yourself. Make your kids the protagonists. Have them fight ogres, slay dragons and seek buried treasure. They’ll ask for more and you’ll develop your story telling skills for trial.

Most emergencies are self-made.

Before sending anything out, proofread it at least twice. Three times is preferable.

And proofread outloud.

When you first get a file, call opposing counsel and introduce yourself. It’s harder for an attorney to be unprofessional if he’s had a pleasant conversation with opposing counsel.

Get to know opposing counsel. It’s harder to fight over trivial things if you’re asking opposing counsel about his daughter’s recital and he’s asking you about your son’s soccer game.

When the other side starts objecting during a deposition, you’ve tripped over something. When he starts making speaking objections, you’ve hit pay dirt. Keep digging.

Instant oatmeal is great. Pour a pack into a styrofoam cup, fill with hot water, and voila, breakfast at the office.

If you’re going to have breakfast at the office, make it a point to have breakfast with your kids on the weekend.

The first thing you do -- read the jury instructions. They will be your road map for the entire case. They tell you what the parties have to prove, what the defenses are and whether you stand a chance of winning or not.

If you want your clients to be happy, act like the waiter at your favorite restaurant. At my favorite restaurant, the waiter sits us at "our" table, makes sure we have plenty of bread, brings out the kids’ meals first and keeps our soda glasses filled. He knows our needs, meets them and does it all with a smile. Provide that quality of service to your clients and they’ll keeping coming back.

Funny thing. The food at that restaurant is good, but not great. We come back for the service.

You can’t win without a theme. Start developing the theme of your case early. Every interrogatory you propound, every motion you file and every deposition you take should be done to advance that theme. If you wait until two weeks before trial to develop your theme, it’s too late.

However, don’t be married to a theme. As your case develops, your theme must develop. During the course of litigation, you may pick up and drop a half a dozen themes on the way to finding one that is worth holding onto.

Have a theme for your life. What are you trying to accomplish? When it’s all said and done, and your career is over, what do you hope to have done with your life? Don’t settle for figuring out what your cases are really about. Figure out what you are really about.

Writing is all about nouns and verbs. Adverbs, adjectives and prepositions are overrated.

Actually, writing is all about verbs.

Extra words are the enemy. Eradicate them.

We all have short attention spans. When you write a motion, memo or letter, make your point up front, hit the highlights and stop writing.

Argue your motion out loud before a hearing. It’s one thing to see your arguments written down on paper. It’s quite another to listen to how they sound.

Put yourself in the shoes of the judge and opposing counsel. Anticipate the other side’s arguments and the judge’s likely questions. Thinking this way avoids surprises at hearings.

Get involved. Being a good lawyer entails so much more than working on your cases. If you want to grow and develop, join a voluntary bar association or two and volunteer your time. The relationships you will develop in these organizations will be priceless.

Make a list of your strengths and weaknesses as a lawyer. Pick one of your weaknesses and work on it this year. If you write poorly, read some books on writing, maybe take a class. If you are a poor public speaker, consider joining Toastmasters. Tackle the weaknesses, one at a time.

Also make a list of your goals for the next year. So many of us have a strategy when it comes to our cases, but many of us do not have one when it comes to our lives.

Know your opposing counsel. Look at his website, his jury verdicts and published opinions. Ask around about the type of lawyer he is.

Know your judge. Read the appellate opinions that have upheld his rulings and those that have overturned them. Know what his judicial philosophy is and most importantly, what his pet peeves are.

Prepare every case as if it’s going to trial, not as if it’s going to settle, even though most do.

Always keep a clean desk. You look like you are in control when you do, even if secretly, you are not.

Write your own obituary. Write out how you want others to remember you. Now spend a lifetime trying to live up to that description.

Your Job as a Senior Associate

2008-03-15T12:08:00.001-04:00

You have made it this far. You are arguing motions and taking depositions and handling your own caseload. You may have even second-chaired a trial or two or more. The brass ring of partnership is within reach. So what do you need to do to receive your firm’s blessing and become a partner? Here are some thoughts.

Market on the firm’s behalf. The life blood of a firm is its clients. Without them, there are no files to work on. So it is your job to keep the firm’s current clients happy and to help the firm attract new ones. Firm marketing is not just the marketing department’s job or the senior partners’ - it is everybody’s job, particularly yours. One of the things a firm is looking for when deciding to make one of its associates a partner is whether he already has clients or has the potential of attracting them.

To show your firm you have the characteristics it is looking for, get involved in bar associations and business organizations and market your firm to the people you meet at the meetings, conferences and cocktail hours. If you see yourself only as someone who is at the firm to bill hours, that’s how the firm will perceive you. They will appreciate all the hours you bill, but they will never see you as one of them - as a potential rainmaker who deserves to be named and treated as a partner.

Seek out leadership positions in your organizations. As a junior associate, you should have become involved in local and regional bar associations. As a senior associate, it is time to reap the benefits of years of hard work and seek out leadership positions in these organizations. Try to get on their boards and rise in the ranks to become an officer, and ultimately the president of the organization. It is also time to go beyond a parochial perspective, and start getting involved in national organizations, whether it is the American Bar Association, or another national organization. Start laying the foundation in those national organizations to lead them within ten years.

Master your files. Now is the time to go beyond simply managing your files and start mastering them. Not only are you thinking of the big picture, not only are you thinking long term when it comes to your cases, but you are coming up with ways, clever, creative ways to win. You are developing and implementing strategies that get your clients the best results possible. To do this, study how the partners at your firms win the cases they shouldn’t and read everything you can about the success stories of other attorneys. These "war stories" bear precious nuggets that can show you how to elevate your game to the next level.

Act like a partner. If you want to leap from senior associate to partner, it is time to start acting like a partner. What does that mean, though? It means working to fulfill the firm’s goal. It means living the firm’s mission statement in everything you do. It means you start mentoring the younger attorneys at your firm just as you have been mentored over the last several years. It means thinking like a partner when it comes to firm resources, handling files, dealing with clients and working with the staff. The more you act like a partner the more you will be perceived as someone with partnership qualities. Of course acting like a partner does not mean you throw around your weight or take advantage of others at the firm. It means leading through serving others, it means tackling the tough issues and it means not shrinking from responsibility. Behave that way and your title will catch up with your attitude.

As a senior associate your main goal is to lay the final groundwork for becoming a partner. The brass ring is within reach. Strive to grab it.

Your Job as a Mid-Level Associate

2008-03-08T14:40:00.004-05:00

After you have the first couple of years at the firm under your belt, you will leave the uncertainty and fear that accompany being a junior associate behind you and find yourself enveloped in the fear and uncertainty that accompany the new tasks and responsibilities that define a mid-level associate. For, as you will see, no sooner have you mastered the tasks and duties of a new attorney, you will be thrust into situations that are wholly unfamiliar. What to do?

Think big picture. As a mid-level associate, you are asked to tackle assignments that may affect the entire case. You are asked to look at the big picture, to see how your actions affect the case not only here and now, but months, possibly years, from now, when the case goes to trial and the jury weighs all the evidence.

Start thinking about partnership. It is never too early to start thinking about partnership. You need to investigate what it takes to become a partner at your firm and what you need to be doing now to get on the partnership track. What types of cases should you be working on? What extra-curricular activities should you be involved in? What marketing efforts should you be engaged in on behalf of the firm?

Accept bigger challenges. It is time to move from simply doing research and writing, motion calender hearings and record custodian depositions to meatier projects. If you are not getting those projects, ask for them. If you don’t get them, then the partners probably don’t think you are ready for them. Find out why and rectify whatever shortcomings the partners believe you have.

Start managing your own files. Move away from piece meal projects and start working on entire files. Your goal is to handle more than just a hearing or a deposition. Your goal is to handle an entire case. Study how the partners run their cases and read everything you can about how others handle their cases - from start to finish. Apply what you learn to the files you are working on and ask to run them yourselves.

Start managing your own caseload. Don’t settle with managing a case or two. Your goal is to handle your entire caseload. The more self reliant you are, the more free time you afford the partners at the firm to dedicate to other matters.

Focus on a specialty. It’s time to pick a practice area and start specializing. Choose an area and become an expert in it. If you master an area of the law, it will show through your work product and you will become the "go to" person at your firm whenever that type of case comes in through the door.

As you move out of your first years into your middle years, it is time to think about your long term career. Do you want to become a partner at your firm? If so, lay the foundation during those middle years by assuming more responsibility and tackling that responsibility with the right attitude.

What Is Expected of Junior Associates

2008-03-02T20:24:00.002-05:00

Law school and the bar exam are behind you, and your first job as a junior associate awaits. What is expected of you?

Exemplar work product. Whether you are asked to research an issue, draft an internal memo or write a motion to the court, your job is to make sure it is perfect. But perfection takes time, you say. The partners at the firm will think I’m slow and inefficient, you say. It’s a tempting trap to fall into - not to go that extra mile for fear that others will think you are not bright or are milking a file. Don’t fall into the trap. If you are billing by the hour, the partner can cut your time if need be (junior associates often get their time cut, even when they are "efficient"). If time is an issue, you may have to spend some late nights or early mornings to keep up with your workload.

But whatever you do, make sure that your work is the best it can be. Find that extra case, go down the next rabbit hole and the one after that and proofread what you wrote not just once, but three times. Partners remembers associates who do quality work, and deep down, they know that quality takes time. They’ll forgive inefficiency. They won’t forget poor quality.

Do the dirty work. No one likes doing the mundane, detail-oriented tasks, like going through boxes of documents, answering interrogatories or tracking down hard to find witnesses. Volunteer for these tasks and do them well, and you will get noticed.

Do it with a smile. Doing your job is not enough. You need to do it with the right attitude.

Learn a practice area inside and out. Now is the time to learn everything you can about your practice area. Read the Bar journal articles relevant to your practice. Attend local CLE seminars. Go online, find and read everything you can about what you do. The greater your mastery of an area of the law, the more you will be relied upon when those types of cases come through the door.

Get involved. It’s never too early to get involved in bar associations. Your best bet is the local county or a local specialty bar association. Most bar associations have young lawyer divisions who are eager to invite new members into their fold.

Get along with the staff. Even though you are an attorney, you are, in a way, junior to your very own secretary. She probably knows more about your job than you do, as do the paralegals and possibly even the file clerks. They can help you handle all the practical aspects of your job -how to set a hearing or deposition, how to send a proposed order to the court, etc.

Learning the rules. As a junior associate, your most important job is to learn the rules - the rules of your firm, of your partners, the other associates and the staff. Every organization and every person plays by its or his own rules. Law firms are no different. If you want to get along and fit in, figure out what those rules are.

As a junior associate, your job is to integrate yourself into firm life and do the best job on your assignments, whether they are a document review, a memo or a motion. The odds are that you will not get many of the exciting assignments, but if you do what is expected, your time will come.

Write Your Eulogy

2008-02-22T22:03:00.003-05:00

Black. There is so much black. Suits and dresses and slacks and shoes. And then there are the tears, intermingled with a laugh here and there. And in the middle of it all is the coffin, the reason why everyone is there, in black and in tears. And inside that coffin is you. Your practice is over, your career is over and most importantly, your life is over. And as you lay there, the room grows quiet as someone approaches the podium to say a few words. This is your eulogy - your life encapsulated in a few minutes - and everything you’ve done, the life you have led and the values you have held are about to be laid bare to those whose lives were influenced by your words and by your acts.

What will this person say about you? Will he speak in generalities? Will he say what he is suppose to say and will everybody nod their heads like they are suppose to nod? Or will the speaker actually be moved by your life, by your legacy and will those sitting in the folding chairs forget for a few minutes about how hard their seats are and reflect on how their lives are different - how their lives are better - because of you?

If you want to leave a legacy, if you want your life to mean something to others, to mean something after your gone, start with your eulogy. Sit down and write it out. How do you want to be remembered? What do you want those who remain behind to say about you? What are the nouns, and the verbs and the adjectives you want used to describe you? Write it down. Every last word - the anecdotes from your life, the nuggets of wisdom you shared, the acts of kindness you did - in black and white, right in front of you.

There. All your accomplishments, dreams and hopes fulfilled - reduced to a few pages. Now here comes the hard part. How close are you to fulfilling your legacy? How much of that eulogy is accurate and how much of it remains unfulfilled hopes and dreams? By writing your eulogy, you can see where you want to be and how far it is from here to there. You can reflect on what truly matters - the things you will do and the values you will live by that will cause you to have an impact well beyond your own lifetime.

You will realize, as I, that so much of what we do and so much of what consumes our thoughts is rather petty, small and insignificant. By reflecting on the life you should have lived, now instead on your deathbed, you can make the changes while there is still time. You can make the changes to leave the legacy you want, and make your funeral, whether decades or just years from now, a celebration of a life well lived. Now go and plan out how you’re going to make them dance in the aisles.

Working With Your Assistant

2008-02-17T12:36:00.001-05:00

Your most important ally at your firm is your legal assistant. She does the things that make you look good and frees up time to tackle bigger, more important tasks. If you want to succeed at your firm, foster a respectful, caring relationship with your secretary and with the rest of the staff. How do you do that? Consider the following:

Be considerate. Your secretary is first and foremost a person. She wants and deserves to be treated with respect, consideration and appreciation. Think about your superiors in your firm. Do any of them treat you poorly? Treat you as fungible? How do they make you feel? How willing are you to go the extra mile for them? When it comes to staff, follow the golden rule - treat them the way you would want them to treat you.

Curb emergencies. How often do you find yourself asking your secretary to stay late because of an “emergency?” How often is it truly an emergency and how often is it poor planning on your part? Whenever you work on a project which will require your secretary’s help, get her involved early in the process so that she can do her job well before five.

Get involved. We all have interests outside of work. Many of us are involved in charities or organizations that we care deeply about. If your secretary has such an interest or involvement, see how you can help. Maybe you can help her with a food drive for a local shelter or lend a hand revitalizing the local youth center. Her appreciation will show up in her work.

Respect personal time. During the eight hours your secretary is at work, spouses will call, family emergencies will arise and issues from the home front will have to be dealt with. Give your secretary the time and space to deal with them. Attempts to stamp out these interruptions in the work day will only serve to alienate your secretary and ironically, make her less, not more, productive.

Be clear and precise. When asking your secretary for help, give clear and precise direction to ensure that you and her are on the same page regarding assignments. Consider taking the extra couple of minutes to write a detailed e-mail about what you want accomplished. The extra time you spend at the beginning of an assignment will be recouped when you get back exactly what you asked for.

The key to working well with yours secretary and your staff is taking the time to put them first so that they can follow your lead and put you and your cases first. To be served, you must first learn to serve.

Staying on Top of Your Cases

2008-02-11T22:31:00.000-05:00

Handling 30, 40 or more cases is not unusual for a litigator. How do you stay on top of all them? How do you make sure you meet all the deadlines, prevent things from falling through the cracks and push your cases toward a successful resolution? Consider the following tips.

The most important fifteen minutes of the day. After pouring your morning joe and settling into your office, you are about to embark upon the most important fifteen minutes of the day.

Whether you squander them or not is entirely up to you. In the next fifteen minutes, you can either jump into the day’s work without a thought of how you want the day to unfold or you can develop a plan for the day (as well as the days and weeks to come). Take fifteen minutes to do the following:

Review your calender. See what is on your calender for the day, the week and the month ahead. Think about what needs to be done that day and what needs to be started upon to meet deadlines that are days or weeks away. Planning your day based solely on what is on the immediate horizon is a recipe for having a career driven by emergencies.

Keep a case list. Keep a list of all your cases, adding new ones as they come across your desk and removing ones as you close them out. First thing every morning, review the list to evaluate what phone calls you need to make, what e-mails you need to send and whatever else you need to do.

Keep a to do list. Keep a running list of assignments on a Word or Word Perfect document which you add to as you receive new assignment and shorten as you complete assignments. After you look at your calender and case list, look at your to do list, and see what else needs to be done.

Keep a short to do list close at hand. On a post it, write down the things "you must" finish today. On a second post it, write down a few more things you "would like" to get done today. Those post its will direct your activity for the day.

Keep a clean desk. Nothing should stay on your desk except for what you are currently working on. Everything else needs to be passed onto your secretary, another attorney in the office or the file room. To the extent you have several outstanding projects, develop a filing system in your office where you keep these documents somewhere other than in piles on your desk. For example, I use a stack of trays I keep behind me on a book shelf, where I keep documents related to outstanding projects I am working on. Once I am done with one, those documents leave my office immediately.

If it takes less than five minutes, do it! Get in the habit of doing things immediately, whether returning phone calls, responding to e-mails, or answers questions or requests by clients or others at the firm. This way, you tackle the project when it is freshest in your mind and you avoid your to do list from growing and further avoid paper from accumulating on your desk.

Staying on top of your cases can be challenging. However, by developing a system that works for you and sticking to it, you can ensure to reduce surprises and emergencies to a minimum.

Preparing Your Client for Deposition

2008-02-03T20:30:00.000-05:00

The most important deposition in a case is not the opposing party’s. it is your client’s deposition. The admissions he makes can hand a summary judgment or a favorable jury verdict to the other side. To avoid that, consider the following when preparing your client for deposition.

It takes time. Make time. Preparing your client for deposition is time-consuming. For every hour you expect his deposition to last, plan on spending three preparing him.

Prepare early. Don’t wait until the day before (or even the week before) the deposition to start preparing your client. Preparations should start before opposing counsel sends out the notice.

Prepare a document binder for your clients. The worst feeling in the world is seeing your client being asked questions at deposition about a document he has never seen before. To avoid this, procure all the relevant documents through your case investigations, requests for production and third party subpoenas, and prepare a binder of all the documents you expect your client to see at deposition. Mail him the binder, have him review them at his leisure and then go through them in detail with him in person.

Conduct a mock deposition. Just as your client should not see a document for the first time at deposition, he should not be asked a question for the first time at deposition either. Ask him every question you expect opposing counsel to ask him. Neither you nor your client should be surprised by any of the answers he gives at deposition.

Videotape the mock deposition. Consider video taping the mock deposition and viewing portions of it with your client. Discuss with him his delivery style, his body language and his answers. Seeing oneself on video can be very educational.

Tell the truth. There are all sorts of rules attorneys tell their clients to follow at the deposition. The first and foremost is to tell the truth. A witness never has to worry about “keeping his story straight” or wondering if opposing counsel is going to trip him up on one or more of his answers if he sticks to the truth.

Give your witness a deposition transcript. You can describe a deposition all you want. You can even subject your client to a mock deposition. But there’s no substitute for an actual deposition. To give your client the complete experience before subjecting him to it, consider giving him a transcript or even a DVD from another deposition.

Strike the proper balance. There is no question that your client can sink the case with the words that come out of his mouth. Of course, he can become so conscious of this, that his nerves get the best of him. Treat the client in such a way to convey the importance of his deposition without making him impotent with fear.

Your client’s case may rise or fall on the words that come out of his mouth. Make sure he knows to choose those words carefully.

Deposing a Treating Physician - Part Three

2008-01-27T14:58:00.000-05:00

After the court reporter swears in the doctor, consider working off the following outline.

First, review the contents of the physician’s file and do an inventory of the file, keeping an eye out for the following:

* patient questionnaire
* letter of protection
* correspondence from counsel
* notes, letters from patient
* other physicians’ records
* physician notes
* medical bills

Review subpoena and ensure doctor brought everything you asked for.

Review physician’s notes and address the following:

Review favorable notes/opinions, including:

* pre-existing conditions
* favorable opinions
* patient compliance/non-compliance
* improvement in condition
* prognosis
* admissions by patient

Attack unfavorable notes and opinions, by confronting physician with:

* records indicating pre-existing conditions
* surveillance video
* his prior depositions
* his writings
* your medical research (excerpts from texts; medical journals)

If his opinions were favorable:

* review his credentials (C.V.) and qualify him

*confirm his opinions were "within a reasonable degree of medical probability"

If his opinions were unfavorable address:

* his credentials (wherever they may be lacking)

* priors cases where his opinions were stricken or expertise questioned

* whether his license has been suspended/curtailed/revoked

* whether he has been the subject of an investigation by:

* his medical board

* medicaid

* medicare

* other
* subject of any medical malpractice suits

* subject of any administrative proceedings

* subject of any lawsuits (other than malpractice)

* whether he is a hired gun (expert for every season)

* whether he ever taught on the subject of opinions

* whether he ever has written on subject of opinions

* whether he has ever taught courses on subject of opinions

* whether he has ever been qualified on subject of opinions

* testimonial history (depositions/trial)

* prior work as expert

When you feel you are done with the deposition, go through the following checklist before adjourning. Have you:

* Reviewed all his opinions?

* Reviewed basis of all his opinions?
* Ensured you have all his records and have reviewed them?

In many ways, deposing a physician is no different than deposing anyone else. It all comes down to preparation.

Deposing a Treating Physician - Part Two

2008-01-19T20:24:00.000-05:00

In addition to learning the medicine, you need to learn everything you can about the doctor. Treat him like you would treat an expert witness and perform the same due diligence. When investigating a physician’s background, consider the following:

Prior depositions. Use expert deposition services, voluntary bar associations’ deposition banks and your own firm’s deposition bank to procure prior deposition transcripts of the physician.

Practitioner profile. Most states have departments of health which keep track of their physicians. They have information about the doctor’s education, training, board certification and disciplinary history. Procure a copy in each state where the doctor is licensed.

Physician’s website. More and more physicians have websites where they post their curriculum vitaes, their articles, their areas of speciality and testimonials from patients. Take some time to study the doctor’s website.

Advertising. Other than the website, review any online advertising for the physician and review the brochures he leaves in his waiting room.

Curriculum vitae. Review the physician’s CV and see where he went to school (did he leave the country to go to medical school), what he specialized in, what lectures he has given and what articles he has written.

Physician’s articles. Locate on Medline or elsewhere copies of the physician’s articles relevant to the plaintiff’s condition, treatment and prognosis.

Litigation history. Locate the clerk of courts’ sites in the jurisdictions where the physician practices and view the docket sheets of any malpractice suits naming the physician.

Once you have done your due diligence on the doctor, it is time to put together a binder you will take with you to the deposition. You will want to include in the binder: (1)notice of deposition; (2) return of service; (3) practitioner profile; (4) background search; (5) all impeachment materials; (6) all anatomical drawings you intend to use as exhibits; and (7) bate-stamped copy of the medical records. These will be your tools for the deposition.

In the next entry, I will discuss what to include in your deposition outline for the physician.

Deposing a Treating Physician - Part One

2008-01-12T19:30:00.001-05:00

If you are defending a personal injury matter, the time will come when you will depose one or more of plaintiff’s treating physicians. Before you depose them, consider the following:

Should you set the deposition? Before you depose a treater, you must first decide whether you should depose him. In reaching this decision, ask yourself: Do his records support your case? Do they advance your case themes? Do they contain admissions by the plaintiff? Are his notes illegible, requiring a deposition to understand them? Does plaintiff list him as an expert? Do you expect him to testify at trial? Remember, that by deposing a physician, you are preserving his testimony, so have a good reason for doing so.

Learn the Medicine. If you decide to depose a physician, procure all of the plaintiff’s medical records and prepare a medical chronology. As you review the records, learn the medical terms you come across and learn how to pronounce them. You can use online medical dictionaries such as:

http://cancerweb.ncl.ac.uk/omd/

http://www.nlm.nih.gov/medlineplus/mplusdictionary.html

In addition to learning the terminology, learn the medical conditions at issue. Review medical texts and medical journal articles and use online sites such as:

http://www.merck.com/mmpe/index.html

http://www.medscape.com/home

Invest in yourself, and purchase several texts to facilitate preparing for medical-related depositions, including a medical dictionary, the pocket physicians desk reference and the Merck Manual. If you depose psychologists and psychiatrists, procure DSM-IV.

In the next installment, we will address how to investigate the background of the treating physician and what to bring to the deposition.

Finding the Perfect Expert

2008-01-06T14:58:00.000-05:00

The perfect expert is preeminently qualified, is a leader in his field, has no skeletons in his closet and makes a great witness at trial. Finding him takes time and effort. To track him down, I would suggest the following:

Enlist your firm. Start your search by asking for recommendations from the attorneys in your firm.

Enlist your friends. Form an e-mail list of colleagues with whom you have gone to school with, worked with, served on bar associations with, etc. This list will serve you in many ways, including requests for experts.

Enlist bar associations. Many bar associations have expert databases. Some allow you to e-mail members, asking for expert recommendations.

Use Westlaw. Do a jury verdict search for the category of experts you are looking for. Not only will you find several prospects, you will see the types of verdicts with which they were associated.

Use the internet. Google the type of expert you are looking for and see what names come up.

Visit Barnes & Nobles. Visit Barnes & Nobles website, type in the subject matter for which you need an expert, and see who has written text books on the topic. For example, the expert you need to evaluate a party’s closed head injury may have written three text books on the topic, and is considered the foremost expert in the field.

Enlist experts. When you call prospective experts, ask them whom they consider to be leaders in their field. Whom do they consider authoritative? Whom would they call if they had a question?

Do your due diligence. Once you have several prospects, you need to make sure the expert fits the bill. Make sure to:

1) Review his curriculum vitae.

2) Review relevant publications cited in the curriculum vitae.

3) Read at least one of his prior depositions.

4) Review prior reports he has prepared.

5) Check Westlaw to see if his opinion has ever been stricken.

6) Do an article search.

7) Do a background search.

8) Ask for references of others who have retained him. Ask the references how the expert performed and whether they discovered any skeletons in his closet.

9) Ask the expert the hard questions (Has he ever been convicted? Has he ever had his opinion stricken? Has his license ever been revoked or restricted? Has any board or association ever reprimanded him? Are his credentials legitimate?)

10) Do a Google search to see if the expert has ever been written about in chat rooms, message boards or elsewhere.

The right expert can make the difference between winning a case and losing it. The same can be said about the wrong expert. Take your time and do your diligence to ensure the expert you are hiring is the best fit for your case.

No More Secrets - Investigating a Witness

2007-12-29T17:44:00.000-05:00

It used to be that to investigate a witness’s background, you needed to hire a private investigator. With the advent and rise of the internet, you can put on Sherlock Holmes’s deerstalker cap and find out unimaginable information about a witness. When searching into a person’s background, consider the following:

Myspace and Facebook. There are several popular sites such as Myspace and Facebook that allow one to post photos, video and personal information of oneself. Many reveal too much about themselves on these websites. Look up a witness on these sites and see if they have their own web page. If they do have one, but it is set to “private,” do a request to be allowed to view it (and also request that it not be changed, so that incriminating evidence is not removed).

Blogs. Just like information sharing sites like Myspace, more and more folks are starting their own blogs or posting to others’ blogs, possibly revealing information relevant to your case.

Alumni associations. High schools and colleges work hard to stay connected with their alumni. If you know where your witness went to school, you might find interesting information at his alma mata’s website.

Google. A simple google search of the witness can pull up a wealth of information, including companies he is associated with, articles he has written and articles written about him.

Westlaw. See if the witness has ever been the party to a published opinion or a published verdict.

Criminal records. There are various sites that allow you to check a witness’s criminal record, including your state’s law enforcement department. You can also check to see if he is in arrears in child support.

Litigation history. Check the local county’s clerk page to see if your witness has ever been involved in litigation and check the local bankruptcy court to see if he has ever filed for bankruptcy.

Odds are that there is valuable information about that key witness on the internet. Take the time to look. You may be surprised by what you find.

Investigating An Auto Accident Case

2007-12-25T15:47:00.000-05:00

With advances in technology, there is more and more information out there relevant to your auto case. Some of the following may help you build your case or undermine your opponent’s:

Sun Pass. Based on the tolls paid, you can find out where a vehicle was on the day it was involved in the accident.

Cell records: Was the driver on the phone at the time of the accident? Who was he talking to? After the accident, whom did he call? He may have made admissions about the accident.

Text messages and e-mails: Instead of calling someone, the driver may have been sending a text message or an e-mail. Being on the phone is distracting. Typing on your phone is so much more distracting.

Traffic reports: Reports reflecting lane closures or accidents may give an indication of the flow of traffic at the time of an auto accident. The traffic conditions may make a claim of a speeding vehicle preposterous.

Video footage: There may be footage of the accident, particularly if it happened during rush hour, where the traffic helicopter may have caught your accident on video.

Black box. Some vehicles have "black boxes" that preserve information at the time of the accident, such as the speed of the vehicle. The parties can enter into an agreement to secure the black boxes from the vehicles involved in the accident and have them analyzed by mutually agreed upon experts.

Aerial shots: An aerial shot of the accident scene may prove helpful. Google Earth is a good source for such a photograph.

GPS. Were the drivers using GPS, such as Garmin or Magellan? Were they using an online service like Onstar? There may be information about the driver’s route.

The police report is a good start when investigating a car accident case, but it is only a start. There are so many other avenues to pursue when investigating who caused the accident.

New Year’s Resolutions

2007-12-23T11:28:00.000-05:00

With the new year practically upon us, it is time to start thinking of a resolution or two. Each year, I make two resolutions, one centered around my family and one centered around my career as a lawyer. When coming up with your own resolution, you might want to consider one of the following:

Learn a second language. The practice of law, like commerce, has become global. Knowing a second language can distinguish you from most other lawyers. But who has the time? Turn your car into a classroom by listening to foreign language CDs which you can either buy online or check out from your local library. Watch foreign-language shows on television and subscribe to foreign-language magazines or newspapers. The more you can immerse yourself in another language, the faster you will learn it.

Learn a new skill. Learn Power Point, prepare a firm newsletter or organize a fund raiser for a bar association. Being a lawyer is so much more than drafting motions and taking depositions. Take the time this coming year to learn much needed networking and business development skills.

Try a case. Trials are harder and harder to come by, and when they do, young lawyers are generally relegated to a second or even third chair status, if that. Seek out pro bono opportunities that may result in a trial. For example, you may be able to represent pro se prisoners in civil rights cases or children in dependency proceedings. Not only are you helping those who cannot help themselves, you are developing trial skills in the process.

Find a mentor. If you do not already have one, seek one out. Find someone at your firm or someone you volunteer with at a bar association and develop a mentoring relationship with that person. There are no self-made attorneys. Find someone to help you fulfill your potential.

Get published. There are so many publications out there looking for articles. Getting your article published in one of them is easier than you think. Take the time to write an article and walk it through the publication process until you see it in print with your name underneath the title.

Make a difference. Join a community or charitable organization dedicated to helping the less fortunate. Help build a house for Habitat for Humanity or organize a food drive or discover a local need and develop a plan to address it.

Make next year one to remember by making a commitment to better yourself and see it through. Happy New Year!

Getting the Other Side’s Attention

2007-12-16T18:25:00.000-05:00

Generally, scheduling a hearing or deposition takes little more than a call by one’s legal assistant to opposing counsel’s legal assistant. There are times, however, that those calls go unreturned. Despite your assistant’s best efforts, no dates are provided and hearings and depositions remain to be set. How do you handle this situation? Consider the following:

Reach out and touch someone. At the commencement of any case, consider picking up the phone and introducing yourself to opposing counsel. Have a pleasant chat and lay the foundation for cooperation during the course of the upcoming litigation. Such calls help ensure that your office’s requests for dates do not go unanswered.

Call for dates. When setting a hearing or deposition, never do it unilaterally. Have your legal assistant call opposing counsel’s and ask for mutually convenient dates. If she does not receive a response to the first call, have your secretary call again.

Follow up with an e-mail. If your legal assistant does not receive a response, send opposing counsel an e-mail letting him know that your office called and is waiting on dates. Propose several dates for him to choose from. Make it easy for him to cooperate with you.

Follow up with the notice. Your office calls. No response. You send an e-mail. No response. What next? Consider sending a letter, enclosing a notice for the hearing or deposition on a date and time that is convenient for you. In the letter, note your secretary called twice and you sent an e-mail, but despite your best efforts, you either have not been given dates or have been given inconvenient ones. Also note that the date on the notice you sent is not written in stone. If it is inconvenient, you will reschedule it if opposing counsel provides a reasonable alternative date. This way, you apply pressure to opposing counsel to cooperate. He either provides another date or accepts yours.

Setting hearings and depositions should be uneventful. However, under those rare circumstances when opposing counsel does not cooperate, following the steps above can help you ensure that you set the hearings and depositions you need to advance your client’s interests.

Setting Depositions - All At Once

2007-12-08T20:49:00.000-05:00

When tackling your next case consider setting all your depositions at once. When you first sit down with the case, decide what depositions you need to take, in what order you want to take them and coordinate all of them with opposing counsel in a single phone call. Do not wait to take a deposition before setting the next one, and do not wait on taking the next one before setting the one after that. Instead, schedule all your depositions as soon as you know who the witnesses are. Set them out far enough so you have time to receive responses to your written discovery and procure third party records. Spread them out enough so you have enough time after finishing each to prepare for the next one. This way, once the depositions start, you will have them all lined up, in the order you want, on the date and time and at the location you want.

You can see there are several benefits of setting your depositions in this manner:

You set the agenda. By coordinating the depositions, you set the agenda and drive the case on your terms.

Motions for continuance become obsolete. If you schedule all your depositions at the beginning of the case, even if they are set months later, the odds are you will be able to conduct your discovery on a timely basis and avoid seeking leave for a continuance of the trial date.

Unavailability becomes a thing of the past. How often do you hear that opposing counsel’s first date of availability is weeks, sometimes, months away? By setting the depositions at the beginning of the case, opposing counsel’s tight schedule should not create problems in timely completing discovery.

Shows you mean business. By taking charge, you show the other side you are committed to litigating a case and trying it if necessary.

Problems can be dealt with early. What about the witness you cannot find? What about the witness who is in poor health? These issues are easier to deal with if you are not staring at discovery deadlines.

More likely to preserve important testimony. The longer you wait, the greater the risk you run of not capturing important witness testimony. Memories fade. Witnesses move away. They get sick. Sometimes they die. By scheduling your depositions as soon as possible, you preserve favorable testimony.

Setting all your depositions at once is not appropriate for every case. First, your client may not want to incur the expense. Second, you may not want to telegraph to the other side all the witnesses you think are important. However, it is an approach worth considering.

Begin with the End in Mind

2007-12-01T20:04:00.000-05:00

In his best-selling book, The Seven Habits of Highly Effective People, Stephen Covey recommends that we "begin with the end in mind." You start with an image of where you want to end up - whether in your life, your career or a lawsuit - and devise a plan on how to get there. When you first get a case, you need to envision its resolution. Do you prevail at summary judgment? Does it settle at mediation? If so, how much do you hope to settle for? Does it go to trial? If so, what verdict are you hoping for?

Start by thinking how you and your client define a "win." Ironically, with only 2% of cases going to trial, you probably will not define a win as delivering a closing argument worthy of Clarence Darrow. In fact, the best "win" you can muster may be quite modest. You have to take stock of the law and the facts and based on what you have to work with, decide what your goal is. If you are plaintiff’s counsel, the best you may be able to hope for is to escape summary judgment and hobble to mediation, getting something for your client. If you are defense counsel, the best you may be able to muster is settling the case for $5 million instead of $7 million.

Once you "have the end in mind," devise a plan which details how to get there. What law do you have to research? What facts do you need to develop? What records do you need to get your hands on? What depositions do you need to take? Think about every step you need to take and plot it all out on a yellow pad. Anything missing? Anything out of order? Add to, subtract from and rearrange the items on your to do list. Once you are satisfied with it, prepare a letter to the client outlining your plan of attack. This way, your client has your blueprint for the case, and knows exactly where you are going and how you plan on getting there, and just as importantly, has a sense about how much it will all cost. Keep this letter close to you. You will refer to it regularly throughout the case and modify it as your case evolves. This letter will keep you focused on attaining your desired goals.

Become a Storyteller

2007-11-27T23:43:00.001-05:00

Shakespeare, Faulkner and Poe have a lot to teach us about being litigators. That is because they have a lot to teach us about telling a story. When it comes down to it, we litigators are first and foremost storytellers. We cast our client in the role of the protagonist. We arrange the facts to develop the plot. And everything we do in the case - every question we ask in deposition, every interrogatory we propound, every motion we file - is directed to developing our theme - the heart of the story, without which there are no "happily ever afters."

Do not underestimate the power of a story. Stories have preserved the histories of ancient civilizations. Stories captivate our children’s attention, whether we read them from a book or invent them while sitting at the foot of their beds. Every day, stories spill out of our radios and our televisions and our theaters like milk pouring out a carton. And stories have inspired many of us to pursue this profession - stories like To Kill A Mockingbird. They are one of the most powerful tools at a litigator’s disposal. I would go so far as to say that to be a good litigator one must first be a good story teller.

When you first get a case, you need to start thinking what story you are going to tell the judge or jury. Is the story based on the facts? Does it hold together? Is there a central theme that runs throughout? Is it captivating? Most importantly, in your story, does the fact finder want to root for your client? Does he want your client to win? It is never too early to start developing your story. And if it turns out the facts prevent you from telling a compelling story that casts your client as the hero, then perhaps it is time to seriously consider settlement.

But before you sit down and start mapping out stories, you need to know how to tell one, and before you can do that, you need to have read a few. So I would suggest that your legal education does not start and end with cases and statutes, but rather in the pages of Hemmingway and Camus and Vonnegut. Pick up the classics, and commit to read one a month. As you read them, think about the story being told, how it plays on your intellect and on your emotions, and how it directs you to think or feel a certain way. The elements of the story - the characterization, the plot, the theme, the symbolism, the scenes - these are the elements that you need to acquaint yourself with, to study and to use when you develop the stories of your cases, the stories that tell how your client wins and how everybody lives happily ever after.