How to Persuade the Jury to Blame One Party Over The Other.

Tags

, , ,

Plaintiffs Should Always Start By Attacking The Defendant, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/plaintiffs-should-always-start-by-attacking-the-defendant

[I]n the 1990’s, trial lawyers Gregory Cusimano and David Wenner investigated the issue. They presented fact patterns to hundreds of focus groups around the country and in that process they observed a consistent pattern: when they began their opening statement by talking about the plaintiff, jurors would blame the plaintiff for what happened. But, if they started with the defendant’s conduct, jurors blamed the defendant and placed much less blame on the plaintiff.

Continue reading

Is A Non-Lawyer A Professional?

Tags

, , ,

It’s Time to Kill the “Non-Lawyers” by Matt Hoffman, the [non]billable hour blog

http://bit.ly/2cpZOJk

[L]aw firms are professional services businesses and it’s time to acknowledge the large group of diversely talented people who make them run — people who don’t deserve to be labeled ‘non’-anything.

Instead, let’s call them what they really are: Professionals.

Continue reading

An Update on the New DOL Overtime Rule.

Tags

, , , , ,

Michigan Joins Quest to Block New Overtime Rule, by Jason Shinn, Michigan Employment Law Advisor Blog

http://bit.ly/2d5Bpto

The new overtime rule proposed by the Department of Labor is definitely one to watch. Its impact on employee and employer alike is significant.

How will it impact paralegals? As a profession, we began as exempt professionals, and not eligible for overtime. The Department of Labor eventually determined that paralegals were non-exempt because we work under the direct supervision of lawyers, and do not make independent decisions. Personally, I prefer being considered as an exempt professional, but not all paralegals share my opinion.

 A more detailed explanation of the history of the Department of Labor and the paralegal professional can be found here: https://www.paralegals.org/i4a/pages/index.cfm?pageid=3304. -CCE

On September 20, 2016, Michigan joined 20 other states in filing a lawsuit against the U.S. Department of Labor (DOL) to block a new overtime rule that goes into effect on December 1, 2016. Here is a link to the complaint Nevada v. Labor Dept., (9/20/16).

*     *     *

DOL’s Rule Expands Eligibility for Overtime Pay

The DOL’s overtime rule would more than double the salary threshold, up to about $47,500, under which workers are automatically entitled to overtime pay. This rule focuses on shrinking what is referred to as the ‘white collar exemption,’ which exempts employees who perform ‘executive, administrative or professional’ duties from overtime and minimum wage requirements.

Continue reading

The Em-Dash.

Tags

, ,

When to Use—and Not Use—an Em-Dash, by Chris Lele, read by Mignon Fogarty, Grammar Girl’s QuickandDirtyTips.com™

http://bit.ly/2cGeRNi

When people think of punctuation marks, it is usually the handy comma, the imperious colon, or the overly excited exclamation mark that comes to mind. The stodgy semicolon and sinuous question mark might get thrown into the mix, but rarely—if ever—will somebody mention a punctuation mark that, while omnipresent, often goes unnoticed. This is surprising considering that this punctuation mark is highly versatile and a favorite of skilled writers. It can add a spice—or a dash, if you will—to a sentence by adding emphasis to certain words and phrases.

Continue reading

Using the “Rule of Three.”

Tags

, , , ,

Remember the Rule of 3: It’s Simple, Logical, and Effective, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2chpUMD

So simple, but so persuasive. It is especially useful in oral argument, which is the topic of this post from Dr. Broda-Bahm. -CCE

[W]hen litigators are looking for a way to paint a bit of style and rhetorical effectiveness into their oral arguments, openings, or closings, the rule of three ought to be one of the first items in your tool box. Focusing on — you guessed it — three reasons, this post will explain why.

Continue reading

Bryan Garner Says Citations In Footnotes are Okey Dokey.

Tags

, , , , , ,

Bryan Garner Says: Put Your Citations in Footnotes, by Rich Cassidy, On Lawyering Blog

http://onlawyering.com/2014/03/bryan-garner-says-put-your-citations-in-footnotes/

After posting on one judge’s opinion of against citations in footnotes, for the sake of balance, here is Bryan Garner’s opinion against putting them anywhere else but footnotes.

When it comes to writing briefs, let the court rules dictate which method you use. If a court or judge goes to the trouble to address such details, there is a reason. Ignore the court’s preference at your own risk! -CCE

[I]n the February 2014 issue of the ABA Journal, and in the corresponding ABA Journal Law News “Bryan Garner on Words” column, “Textual Citations Make Legal Writing Onerous, for Lawyers and Nonlawyers Alike,” Garner promotes a suggestion for writing briefs and memoranda.   . . . The suggestion is simple: Instead of including bibliographical material —  the numerical citation used to find a case or legal authority  — in the text of a  legal document, Garner suggests publishing this material in a footnote.

Continue reading

Need to Turn Your iPad Into Second Monitor? There’s an App for That.

This App Turns Your iPad Into a Second Monitor, by Robert Ambrogi, LawSites Blog When you start using two monitors, many of us are hooked. My favorite feature is the ability to drag documents and w…

Source: Need to Turn Your iPad Into Second Monitor? There’s an App for That.

Citations In Footnotes? The Debate Rages On.

Tags

, , , ,

Benchslap Of The Day: Don’t You Dare Put Citations In The Footnotes, by David aw LobLat, Above The Law Blog

http://abovethelaw.com/2016/08/benchslap-of-the-day-dont-you-dare-put-citations-in-the-footnotes/

In case you’ve missed it, there is controversy in the legal writing world about whether citations belong in the text or in the footnotes. People in both camps feel strongly about this. These people do not see a lot of gray. You are either doing it right or you’re not. I suspect this Judge has similar inclinations. -CCE

Nobody puts baby in the corner. And nobody puts citations in the footnotes — at least not in this federal judge’s court.

Via the Twitter feed of Ross Guberman, a leading expert on legal writing, comes this benchslap from Judge James K. Bredar (D. Md.) . . . .

Continue reading

Need to Turn Your iPad Into Second Monitor? There’s an App for That.

Tags

, ,

This App Turns Your iPad Into a Second Monitor, by Robert Ambrogi, LawSites Blog

http://www.lawsitesblog.com/2016/08/app-turns-ipad-second-monitor.html

When you start using two monitors, many of us are hooked. My favorite feature is the ability to drag documents and websites back and forth. Imagine having a spreadsheet or other document open on one screen, and the document or source of the information you need on the other screen. If you need to keep an eye on email or your docketing calendar, you can keep it up on one screen and work using the other. (If you do not have a second monitor, you can access your other open windows using Alt-Tab.)

I can understand why Mr. Ambrogi is excited about this app. -CCE

I am so dependent on a second monitor that I no longer feel productive without one. That can be a problem when I am away from my office. It is especially a problem when I travel and am hunkered down in a hotel room with important work to get done.

Then I discovered Duet Display, the app that turns your iPad into a monitor.

Written Discovery Basics.

Tags

, , , ,

I admit it. I love writing and answering discovery. Too often, I have seen boilerplate discovery asking for something that is not relevant. What a waste. Do not write discovery if you know nothing about the case. Blindly sending boilerplate discovery at best makes you look busy. At worst, it makes you look sloppy.

Discovery rules change. Read and re-read the court rules, local court rules, and the applicable discovery code. At the outset of the case, send your client and the opposing party a litigation hold letter. It does not matter whether either is an individual or a big corporation. Everyone uses email and sends texts on their cell phones.

Before you start writing discovery, you have to be familiar with the facts and law of your client’s case. If you aren’t, read the pleadings. Understand why the plaintiff sued the defendant(s) and what answer the defendant gave to those allegations, including all affirmative defenses. If it helps, make a chart or an outline.

There is a basic way to determine what discovery you should request. First, make a list of what you need to prove your case. We’ll call this List #1. Second, ask yourself whether you have everything needed to prove (or defend) everything on List #1? You won’t. So, third, make a list of what you need – List #2. Your client will provide some of the evidence you need, and you will use discovery to continue your search. Revise List #2 to identify what you need but do not have.

With List #2 as your guide, use discovery to get whatever else you need to prove your case. Each type of discovery is unique. Play to their strengths, which is a post all by itself. Craft your discovery to snag that evidence and identify anyone who is a potential witness and/or document custodian.

A quick word about Definitions and Instructions. Please do not regurgitate the discovery rules. I admit that I do not follow my own advice. I like to remind opposing counsel (and the opposing party) that there is a continuing obligation to supplement discovery. In the hopes that it will save time and aggravation, I also like to add the specific language from the discovery code about when you can object and why.

Define only what is necessary. If there is room for confusion, clarify what is what and who is whom. If the case revolves around specific documents, such as a contract or an event, define it with a simple designation. Your goal is instant recognition of whatever it is. If there are more than one contract or event, make your definitions basic and easy to recognize.

As soon as you receive the responses to your discovery, mark every incomplete answer or objection. Ask for supplementation where needed, and follow up. If an objection is ridiculous or simply obstructive, challenge it while at the same time building exhibits to support a motion to compel (read the rules!). Do not wait until the discovery deadline is looming to stay on top of this.

This one should be a no-brainer, but I still see it every so often. A party objects to the most basic discovery question and refuses to answer. The other side asks a standard, basic interrogatory, and you object. Really? You cannot enforce it. You know it; I know it; and the other side knows it.

Say goodbye to your boilerplate forms. If you use a form, proofread. Know your case. Adapt your discovery plan as the case progresses. These are not all the basics, but it will hopefully give you a running start. -CCE

What’s the Top Complaint Against Lawyers?

Tags

, , ,

Top Complaint Against Lawyers Is Rude or Uncivil Behaviour, by Carolyn Anderson, Bencher’s Bulletin, The Law Society of British Columbia

https://www.lawsociety.bc.ca/page.cfm?cid=2219

Before you read the article, just for fun guess what rude or uncivil behavior comes to mind? Profanity? Naw! Profanity in a law office is almost an unwritten law in the office manual. Failing to return calls or respond to letters or emails from clients? That’s always been a favorite. You’re getting warmer! -CCE

There’s Positive Stress and Then There’s the Other Kind.

Tags

, , ,

Stress at Work: Defining the Line Between Motivation and an Abusive Workplace, by Celeste Duke, Diversity Insight Blog

http://bit.ly/29Nja5b

Regardless of whether you are a lawyer or legal professional, if you have been out there for a while, you have run into a “bad” boss. They are described in different ways – bully, perfectionist, bi-polar, belittling, and just plain unpleasant – but they are all accomplish at least one thing. They chase off good employees, and make an associates’ and staff’s miserable.

Many rules in a law office may not make sense to the uninitiated. Usually strict rules accompanied with micro-management are a red flag. New hires will likely inherit left over residue from a former employee who abused the rules so badly and frequently that management adopted more restrictive rules. It doesn’t matter that the bad apple is no longer there. New employees are stuck with jumping through the hoop actually designed for a former employee.

If you are interviewing and the office manager asks whether you mind working with difficult people, that is clearly a red flag. Ask why a position is open. Often, when all other things are equal, someone who works for a good boss rarely leaves a job.

If you have a boss who is truly making you miserable or has made it clear you are as far up the ladder as you will go, it doesn’t hurt to polish up your resume and stick your toe in the water. As a good friend once said that, when it comes to job hunting, you can always shop but you don’t have to buy.

If you have found that the nice prospective boss in the interview has turned into an extremely difficult tyrant, of course you have options. But, to be on the safe side, you may want to polish your resume and start putting out feelers. There is a difference between positive stress and the extremely destructive kind. Before this boss has destroyed any self-confidence you have left, get out of there.

Happily, not all attorney supervisors believe that intimidation and abusive behavior is the best way to encourage quality work and employees. Some people even thing that positive reinforcement, team work, and mutual respect and consideration actually improve employee performance and enhance the firm’s overall quality. What a concept! – CCE

In the movie Glengarry Glen Ross, Blake is a trainer sent by corporate to motivate a sales team. In addition to offering helpful gems like the acronym ABC to remind the salesmen that they should ‘always be closing,’ he repeatedly berates them and calls them names while bragging about his own success. He tells the team about a new sales competition that week: First place gets a Cadillac, second place gets a set of steak knives, and third place gets fired.

We hope you have never had a boss like Blake, but it’s likely that you recognize shades of his character in past managers, coworkers, or even a current manager in your organization. You want managers to push employees to do good work and get the best results for the company, but it can be hard to know how far is too far. During his ‘motivational’ speech, Blake asks one salesman, ‘You think this is abuse?’ As it turns out, it just might be, and this could be a new frontier in employee claims.

Continue reading

Get Your Head Out of the Sand.

Tags

, , ,

Another Two States Adopt Ethical Duty of Technology Competence, by Robert Ambrogi, LawSites Blog

http://bit.ly/2b22uwA

Ambrogi includes a link to all states that have adopted an ethical duty of technology competence. My state is not yet one of them, but there is still no excuse.If your state has not yet adopted this ethical requirement, it is only a matter of time.

I know there are so much technology out there that it is hard to know exactly what you’re supposed to know and what you can pass by. But it’s your duty to find out, and not rely on staff to do it for you. -CCE

As I continue to track the states that have adopted the ethical duty of technology competence, I have two more to add, bringing the total to 23.

Continue reading

We Should Know Better.

Tags

, , , ,

Don’t Reveal Embarrassing Client Info, Cal. Bar Warns, by Casey C. Sullivan, Esq., FindLaw (with hat tip to William P. Statsky)

http://bit.ly/2aFqJOQ

I hope that everyone learned in paralegal or law school that you don’t talk in elevators, restaurants, and any other public place about clients and other embarrassing facts you may pick up along the way.  I once worked in a building with a popular restaurant on the top floor. We were close enough to the courthouse that lawyers often went there for lunch. It was amazing how many settlement discussions I heard in the elevator. It wasn’t hard to guess which case it was either.

We all have great war stories. Funny things that happened in court or depositions – things like that. Yes, truth is often funnier than fiction. Maybe thinking of it from the client’s perspective is helpful. If you were the client, would you want your attorney making your case the butt of a joke or story told in public? – CCE

How to Get Clients to Pay On Time Every Time.

15 Legal Billing Practices: The Good and the Bad, by Tim Baran, Legal Productivity Blog

http://bit.ly/2arSXdu

Bad legal billing practices have plagued law firm operations and, in turn, law firm growth for decades. Entering time, collecting time sheets, and assembling bills can steal inordinate amounts of otherwise productive time, even from the most ambitious lawyers. Clients routinely wait months to be billed after the relevant work was performed, and that results in client complaints and cash flow problems for the firm. Each of those factors does its part in handcuffing the firm’s opportunity for growth.

We examine 15 legal practices – the good and the bad – in the Better Billing Practices E-Book. Here’s a nugget from each of the chapters.

Continue reading

Bad Brief!

Tags

, , , , ,

Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs, by Sarah E. Ricks, Rutgers School of Law – Camden, and Jane L. Istvan, City of Philadelphia Law Department, 38 U. Tol. L. Rev. 1113, SSRN

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=996907

Excellent paper on the repeated mistakes judges and their staff see in briefs.

In a busy law practice, we may not always have the luxury of researching and editing as thoroughly as we may like when writing a brief. We are so familiar with our case that we often forget the perspective of our reader. Imagine sitting all day in trial immersed in one area of law, and then switching gears afterwards to read and absorb a brief in a completely different type of law.

This paper reminds us how to write persuasively for the court, even when under pressure to meet deadlines. -CCE

What Skills Make a Great Trial Lawyer?

Tags

, , , , , ,

Lessons from One of America’s Greatest Trial Lawyers – Earl Rogers, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/lessons-from-one-of-americas-greatest-trial-lawyers-earl-rogers

Earl Rogers was a famous attorney who died in 1922. He defended 77 murder cases and lost only three.  He was one of the greatest trial lawyers in American history. The long running TV series, Perry Mason, was based upon Earl Rogers life. His daughter Della Rogers St. John’s wrote a descriptive book of his trial skills in Final Verdict which is not only enjoyable reading, but educational as well.

We think about Clarence Darrow as a great trial lawyer, but when Darrow was charged with jury bribery in Los Angeles, it was Rogers he selected to be his defense attorney.

Continue reading

The Quintessential Contract Drafting Checklist.

Tags

, , , , , ,

A Contract Drafting Checklist, posted by Louis J. Sirico, Jr., Director of Legal Writing, Professor of Law, Villa Nova University School of Law, Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2016/07/a-contract-drafting-checklist.html

This is a gem.  It is specifically targeted for anyone interested in contract law. If contract law is not your area, I encourage you to read it anyway – and bookmark it. -CCE

Canada Revokes Paralegal’s License.

Tags

, , , , , ,

Paralegal License Revoked, by Mike Frisch, Legal Profession Prof Blog (with hat tip to William P. Statsky)

http://bit.ly/29ASMw6

There has been increasing discussion in the United States about creating class of paralegal often called “legal technicians.” Some states already have them. There are arguments pro and con on both sides. The underlying idea is to find a way to provide legal services at a lower rate making legal services more affordable.

But here’s the sticker. There are rules and laws to address situations where lawyers commit malpractice. Are there similar provisions for legal technicians and, if so, what are they? How do they protect consumers, is there any kind if discipline, and who is responsible for that oversight and discipline?

Canada might be good example to help answer some of these questions. What do you think? -CCE

Unlike its American counterparts, the Law Society of Upper Canada has and exercises disciplinary authority over paralegals,

The Law Society Tribunal revoked a paralegal’s license.

‘[M]r. Djukic’s actions clearly brought discredit upon the paralegal profession. Through his work as an immigration consultant and his standing as a paralegal, Mr. Djukic was able to meet and, ultimately, to persuade members of two families to provide him with monies totaling more than $900,000.’

Continue reading

Why Creating A Timeline Will Help Your Case.

Tags

, , , ,

How to Create a Timeline For Your Case: First Steps to Take and Choices to Make, by Morgan Smith, Cogent Legal Blog

http://cogentlegal.com/blog/2011/08/how-to-create-a-timeline-for-your-case/

In litigation, almost every case will benefit from a timeline that lays out key facts and circumstances in a chronological order. The process of making a timeline can help you, the attorney, organize and strengthen your argument, and the end result is a clear and compelling visual presentation that will help all parties involved better understand your case.

But, which program should you use to create it? This is one question where there is simply no single best answer, and a lot depends on the forum you intend to use the timeline in. This post covers some benefits and drawbacks to different timeline tools and formats so you can determine which to use. To see a variety of timeline samples, please our timeline and portfolio sections of our website.

Continue reading

Word Domination.

Tags

, , ,

Dear Lawyers: It’s Not Word, It’s You, by Barron Henley, Lawyerist.com Blog

http://bit.ly/28X55l1

Here are two important facts about Microsoft Word:

Fact 1: 100% of the formatting problems you’ve experienced when drafting new documents can be completely avoided before they occur.

Fact 2: When editing a document someone else drafted, any formatting glitches can be resolved in just a few clicks, no matter how bad of a mess it is.

Unfortunately, the foregoing facts are true only if you have mastered Word.

Continue reading

“The Presidents and the Constitution: A Living History”

Tags

, , , ,

The Presidents and the Constitution: A Living History, by Ken Gormley

If you are interested in constitutional law, I highly recommend this book. It was published in May, 2016, and can be found in your public library or ordered from any book store. It is an interesting discussion of presidential decisions or actions and the constitutional implications.

Here is just one example. If you grew up during the time of Watergate, you may find this particularly interesting. Like most people, I had always assumed that President Gerald Ford’s pardon of Richard Nixon gave Nixon a “get out of jail free” card. My guess is that this decision caused Ford the election to his first full term as President.

When the author interviewed Gerald Ford for the book, of course Nixon’s pardon came up. Ford said that he had asked a young lawyer, Denton Decker, to research all the nuances and possible issues that might occur if Ford were to pardon Nixon. The idea of pardoning Nixon was very unpopular. Ford wanted to know what possible precedent and repercussions a pardon might mean.

Decker finds Burdick v. United States, 236 U.S. 79 (1915). Burdick holds that, if one accepts a pardon, it is an admission of guilt.

Ford sent Decker to San Clemente to Nixon’s home to present the offer of a pardon to Nixon and Nixon’s lawyer. Decker gave Nixon a Miranda warning and told him that, if Nixon accepted a pardon, it would be an admission of guilt. Nixon at first didn’t want to accept the pardon because he understood what it meant. Another issue on the table at the same time was the creation of a presidential library for Nixon’s papers, which the author says Nixon badly wanted. After first resisting, Nixon decided to take the pardon.

When Ford pardoned Nixon, he thought he had given the public exactly what it wanted. Instead, it was seen as letting Nixon off, even though Nixon was obviously guilty. When interviewed by Mr. Gormley for this book, Ford was still frustrated that the public had never seemed to understand that, by accepting a pardon, Nixon admitted his guilt.

An interesting piece of history and a good read. -CCE

Tell Your Client’s Story With A Good Narrative.

Tags

, , , , , ,

Using Narrative in Transactional Documents, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://bit.ly/26buQ9Y

Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016).

Here is the introduction:  A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent’s belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story.

Continue reading

Using Abbreviations and Definitions in Legal Writing.

Tags

, , ,

Don’t Use Definition-First Autonomous Definitions, by Ken Adams, Adams on Contract Drafting Blog

http://www.adamsdrafting.com/dont-use-definition-first-autonomous-definitions/

Ken Adams provides excellent examples of how to use an abbreviations and definitions. Use this for contracts, but keep in mind that it also works in pleadings, motions, discovery, etc.

When you use abbreviations and definitions for a person, a law, an event, or contract, it makes your writing tighter and more concise. It makes sense to abbreviate lengthy names, but take which definition you pick. While striving for a way to make your writing less wordy, don’t let the abbreviation or definition de-humanize your client or overly sanitize your client’s case. -CCE