Storytelling Trial Lawyer’s Honey Pot.

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The Key Elements of a Good Narrative – at Trial or Anywhere Else, by Tony Klapper, The Litigation Consulting Report, A2L Consulting

http://www.a2lc.com/blog/the-key-elements-of-a-good-narrative-at-trial-or-anywhere-else

Every good trial lawyer is a storyteller. Good storytelling is the same as a good book or movie with a great plot and dialogue. It’s that kind of storytelling that wins trials.

Mr. Klapper has written a wonderful post. At its end, you’ll find a honey pot of links with posts that are a variation on this theme. Sweet. -CCE

Will Your Standard Boilerplate Discovery Objections Cut the Mustard in Federal Court?

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Don’t Risk Waiving All Objections to Discovery Responses, by Daniel M. Braude, Wilson Elser, Product Liability Advocate

http://bit.ly/2mQTYon

Remember the changes made to the Federal Rules of Civil Procedure in December, 2015? Mr. Braude strongly urges us to update our discovery form files. He has a convincing reason. -CCE

A Federal Discovery Rule Quiz.

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Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have to Disclose Before Trial? by Max Kennerly, Esq., Litigation and Trial, The Law Blog of Plaintiff’s Attorney Max Kennerly

http://bit.ly/2mvxvg1

Under Rule 26 of the Federal Rules of Civil Procedure, who is a “non-retained expert witness” and when does that witness need to provide a thorough report rather than a summary report?  And what would you expect a judge to say if you do not disclose a non-retained expert witness? As always, it depends. -CCE

Punctuation – The Devil Indeed Is In the Details.

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Legal Writing is Precise Writing, by Suzanne E. Rowe©2007, Oregon State Bar Bulletin — NOVEMBER 2007

https://www.osbar.org/publications/bulletin/07nov/legalwriter.html

A colleague appeared in my office with a pressing question about hyphens. He was writing an article about people who own small businesses. But he was concerned that a punctuation mistake might make the article about small people, instead of small businesses. That concern (and perhaps a touch of procrastination) propelled him to my office. Was he writing about small business owners or small-business owners?

Legal writing is precise writing. Sometimes the missing hyphen, misplaced word or extra comma can change the meaning of a sentence. In quotations, lack of precision can hurt your reputation (or just make you look sloppy). The devil’s in the details.

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Tips on Writing Persuasive Propositions.

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How to Write Effective Argument Headings, by Lisa Solomon, NOW Counsel Network (with hat tip to William P. Statsky!)

http://bit.ly/2ljxJbg

Ms. Solomon calls them argument or point headings. I call them propositions. Regardless, their importance as a persuasive writing tool in any brief should never been overlooked.

A proposition or heading is a succinct statement that states the question or issue to be discussed and answered in your brief. If done correctly, the reader – your judge – should follow the logical flow of your brief’s argument by simply reading the propositions and sub-propositions.  

A proposition that is a positive statement is more persuasive than a question.  Even better, your proposition should state positively what the court ought to do and why. X should happen because of Y or, because of Y, X should happen.  Regardless of the format you use, a proposition that says why the court should rule as you want is always more persuasive. -CCE

Do You Use the Cloud for Document Storage or Production? Read This First.

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Upload To File-Sharing Site Was Like Leaving Legal File On A Bench, Judge Says; Privilege Is Waived, by Debra Cassens Weiss, ABA Journal©

http://bit.ly/2mxwEcF

Many use the cloud for file storage and sharing when attachments are too big to send by email. If you use the cloud for storage, file-sharing or transfer, document management, project management, or anything similar, here is a cautionary tale.

The plaintiff insurance company sued the defendants, and sought a declaratory judgment on the defendants’ claim of loss by fire. The plaintiff’s investigator uploaded the entire claims file, including surveillance footage, to a drop-box cloud, Box, Inc. The link had no encryption or password. Access to the link alone allowed anyone to see the file.

He then sent the link by email to the plaintiff insurance company, who sent it to the insurance company’s attorneys, who inadvertently sent it the defendants’ counsel in response to a subpoena duces tecum.

The defendants’ counsel looked at it, but didn’t tell the plaintiff they had seen the privileged and confidential information. Inevitably, the defense sent the information back on a thumb drive to the plaintiff’s attorneys during discovery.

After vigorous arguments about confidentiality, work-product doctrine, attorney-client privilege, and disqualification of defense counsel, the facts and court’s reasoning make this an interesting read. -CCE

Excellent Advice for Witness Preparation.

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Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap, By Dr. Ken Broda-Bahm, Persuasive Litigator

http://www.persuasivelitigator.com/2017/02/witnesses-know-your-seven-ways-out-of-the-yes-or-no-trap.html

This post caught my eye. I was trained to prepare prospective witnesses to keep their answers brief, preferably to “yes” or “no.” If further explanation was needed or wanted, my lead attorney would ask appropriate questions during direct or cross-examination.

This post takes a different – and better – approach to respond using a variety of answers, regardless of the question asked. Although there may be times when a simple “yes” or “no” answer is the right thing for the witness to say, this post provides excellent advice that is well worth your notice. -CCE

Why We Need Clear Legal Writing in Contracts.

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Sesquipedalianism and an Expatiation Upon Its Antithetical Impact on Interpersonal Communications: Big Words and Why They’re Bad, by Sherry Altshuler, Aird & Berlis, LLP (with hat tip to Louis J. Sirico, Jr., Legal Skills Prof Blog)

http://www.airdberlis.com/Templates/Blog/Entry.aspx?Page=71&ID=11120

This post on using plain English does what good legal writing should. Rather than telling you that big or complicated words are a sure way to lose your reader, it shows you with a wonderful example.  I love “show, don’t tell.” It also provides an excellent list of good legal writing tips. This one is worth a bookmark. -CCE

Legal Aid Federal Practice Manual.

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Federal Practice Manual for Legal Aid Attorneys, Sergeant Shriver National Center on Poverty Law © 2016

http://federalpracticemanual.org/

Well written by qualified contributors. Please note that each section is updated, but not more recently than 2015. Anytime you use a secondary research source with dated information, research the data and law to determine whether it is current. Always check the law in your case’s jurisdiction as part of your ethical duty of due diligence, as well as all relevant court rules. -CCE

An Easier Way to Research The Code of Federal Regulations.

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Electronic Code of Federal Regulations, GPO: U.S. Government Publishing Office

 http://www.ecfr.gov/cgi-bin/ECFR?page=browse

How many of you enjoy researching the Code of Federal Regulations? Hands? I thought so. Have you tried the Electronic Code of Federal Regulations (e-CFR)? If you haven’t, I highly recommend that you check it out. Look to the left to find search tips, FAQs, and a link to a parallel Table of Contents and Authorities. This web site is kept up to date, unlike the print version which is updated once a year. This will remain an “unofficial” version while it’s “technical and performance issues are satisfactorily resolved.” Don’t let that put you off. This website will become the official government Code of Federal Regulations. -CCE

Free Online 2017 Edition of the Federal Rules of Civil Procedure.

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Federal Rules of Civil Procedure, 2017 Edition, The National Court Rules Committee©2014-2017

https://www.federalrulesofcivilprocedure.org/frcp/

Like many firms, we do not keep a hardback or soft back set of the Federal Rules of Civil Procedure because we can access them for free online. I usually go to the Cornell Law Library Institute for federal statutes and court rules for statutes and court rules. After finding this website, I’ve changed my mind. It is amended through December 1, 2016. It also includes links to the Federal Rules of Evidence, Federal Rules of Bankruptcy Procedure, Federal Rules of Criminal Procedure, and the U.S. Bankruptcy Code. So far, I haven’t seen anything not to like. -CCE

Legal Writing Myths

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Legal-Writing Myths, by the Hon. Gerald Lebovits, Plain English Subcommittee Column, 50 Mich. B.J. (February 2017)©2017

https://researchingparalegal.wordpress.com/?p=4848&preview=true

 

Are longer briefs more persuasive? Is it a legal writing faux pas to start a sentence with “and”? Do judges care if you follow Bluebook citation format? Judge Lebovits has some thoughts on these and other legal writing myths to share, some of which may surprise you. -CCE

New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.

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‘Ancient’ Data (and Documents): Prepare for Federal Changes to a Long-standing Hearsay Exception, by Carey Busen and Gilbert S. Keteltas, BakerHostetler, Discovery Advocate Blog

http://bit.ly/2jeUNW2

If you hadn’t heard, there are changes to the Federal Rules of Evidence that will become effective in 2017. Among the changes are rules on hearsay exception for “ancient documents” and rules specifically addressing electronic evidence. Because technology is never static, e-discovery has looked forward rather than backward. These new rules will address e-discovery older than 20 years. -CCE

If wish to do more research into this area, I recommend:  Gregg Kettles, Ancient Documents and the Rule Against Multiple Hearsay, 39 Santa Clara L. Rev. 719 (1999). http://bit.ly/2jOIujM

New and Updated GPO Style Manual.

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GPO Style Manual: new edition, Barco 3.0: Law Library Reference

http://bit.ly/2is1ipN

The Government Publishing Office has published a thorough and updated Style Manual, which includes rules for punctuation, grammar, abbreviations, and computer terms, among other things. You will find “New Features and Enhancements” at https://www.govinfo.gov/features/release-notes/govinfo-beta-launch.

E-Discovery and the Law of Diminishing Returns.

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Citing “Diminishing Returns,” Court Declines To Compel Additional Discovery, Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016), Electric Discovery Law, K&L Gates

http://bit.ly/2jbEnfn

When it comes to e-discovery, how much is too much? When do you or opposing counsel reach the point where the costs outweigh the value? The 2015 amendment to the Federal Rules of Civil Procedure did much to provide more guidance on e-discovery. Rule 26 is the focus of this post.

E-discovery normally means that you and your client have spent hours and lots of money on the case. If you cannot decide when enough is enough and neither the client nor the attorney are willing to stop the bleeding, the court may do it for you. Actually, the court has a duty to stop e-discovery when it becomes redundant and the cost outweighs the value of the return. -CCE

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How Long Is Too Long For An Appellate Brief?

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Posner criticizes ‘verbosity’ in appeals briefs in decision upholding closed voir dire, by Debra Cassens Weiss, Appellate Practice, ABA Journal.com (with hat tip to William P. Statsky)

http://www.abajournal.com/news/article/posner_criticizes_verbosity_in_appeals_briefs_in_decision_upholding_verdict

Judge Richard Posner is a well-known 7th Circuit jurist, legal writing scholar, and prolific author. Knowing this, it is puzzling why the appellate briefs for both sides were over 200 pages each. Yes, Judge Posner had something to say about it. -CCE

Voir Dire and The Internet – The Litigator’s Way of Getting To Know You.

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Getting Up Close and Personal: Using Social Media in Jury Selection, by Dennis Elias, Litigation Strategy, Inc.

http://www.litigationstrategiesinc.com/2011/09/getting-up-close-and-personal-using-social-media-in-jury-selection/

Are you more candid online than in person? Apparently, it’s true, which makes the Internet and social media a boon to litigators. Here’s why, how, and where to draw the ethical line before you go too far. -CCE

Make Legal Writing Resolutions for 2017.

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3 Easy-to-Keep Legal-Writing Resolutions for 2017, by Lisa Solomon, Now Counsel Network Blog©

http://bit.ly/2hK5QTb

Made your New Year’s resolution yet? Going for the usual? This year I will lose weight, go to the gym, and swear off fried food and chocolate? No way. Giving up chocolate would take a serious toll on my mental health.

So may I recommend honing your legal writing skills as alternative? I promise there’s no gym fees, and you can eat all the chocolate you want. -CCE

It’s New Years’ Eve. Time Again for The Capitol Steps!

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It is that time again. The Capitol Steps New Year’s Eve broadcast is coming to a radio station near you. Find the time and radio station at their website: http://www.capsteps.com/radio/.

The Capitol Steps do two free broadcasts each year: New Year’s Eve and the Fourth of July. If you are not familiar with this group, check it out: http://www.capsteps.com/about/. Enjoy! -CCE

 

 

 

 

“How To” On Drafting Dispute Resolution Agreements.

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Drafting for Dispute Resolution, by John M. Newman, SSRN (with hat tip to Louis J. Sirico, Jr., Director of Legal Writing, Villanova Univ. School of Law, Legal Skills Prof Blog)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2867692

Not all cases end in litigation and go to trial. At times, the best service counsel can give to clients is an out-of-court resolution. Careful drafting of an agreement between the parties includes numerous considerations to protect your client and to assure acceptance by everyone involved. Definitely worth a bookmark. -CCE

This is a brief guide to drafting for dispute resolution. Topics covered include mandatory-arbitration provisions, class waivers, choice of law, choice of venue, exculpatory and liquidated-damages clauses, fee and cost allocations, and more. . . .

This guide seeks to concisely identify and explore, from a transactional perspective, the relevant questions, considerations, and law relating to these powerful tools. It also provides illustrative examples of well-drafted provisions, often drawn from real-world legal instruments. . . .

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LexisNexis’ Next-Generation Solution Means End of Lexis.com.

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It’s Last Rites for Lexis.com, As LexisNexis Sets Date for Shutdown, by Robert Ambrogi, LawSites Blog

http://www.lawsitesblog.com/2016/12/last-rites-lexis-com-lexisnexis-sets-date-shutdown.html

“Prepare last rites for Lexis.com. The legacy legal research service will be leaving this world at the end of 2017.

This week, LexisNexis began notifying Lexis.com customers that it will be shutting down the service over the next 12 months and moving them to the newer Lexis Advance research platform.”

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Plain English Legal Writing – Proof Positive That It Works.

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The Proof is in the Reading, Plain Language Works Best, by Joseph Kimble, 52 Mich. B J. (Okla. 2016)

http://www.michbar.org/file/barjournal/article/documents/pdf4article2972.pdf

Joseph Kimble has long been recognized as one of the top legal writing scholars. In this Plain English column of the Michigan Bar Journal (every Bar Journal should have one!), Professor Kimble offers evidence once again that readers, including judges, prefer plain language and why. -CCE

To help round out this plain-English theme issue of the Bar Journal, I offer the evidence of four studies. These four are among 50 that I collect and summarize in my book Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law. Of the 50 studies, 18 involved different kinds of legal documents—lawsuit papers, judicial opinions, statutes, regulations, jury instructions, court forms and notices, and contracts. And they included readers of all sorts—judges, lawyers, administrators, and the general  public. The evidence is overwhelming: readers strongly prefer plain language to legalese, understand it better and faster, are more likely to comply with it, and are more likely to read it to begin with. —JK

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Legal Writing – Why Shorter is Better.

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Make it shorter … and shorter …, by Tiffany Johnson, Good Legal Writing Blog

https://goodlegalwriting.com/2011/02/11/make-it-shorter-and-shorter/

Regardless of whether, in your own opinion, you are a good writer, we can always improve. Here is an opportunity to polish your skills, take note of some bad habits, and hone your editing technique. -CCE

Here’s a good exercise to promote plain writing and dense writing.  The object is to force you to purge your writing of any words that don’t work their butts off on your behalf.  Take the following sentence and reduce it to as few words as humanly possible, without changing the meaning of the sentence.  Shortest re-write wins a prize (respect)!

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Contract Interpretation and Ambiguity.

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Judicial Disagreement Over Contract Ambiguity: When Are Things OBVIOUS? By Stacey Lantagne, ContractsProf Blog

http://bit.ly/2f3Dtj5

We’ve been talking about contract interpretation in my Contracts class lately and I’m always struck by how many cases involve a lower court ruling of ambiguity and then an appellate court reversal of that ruling, because it always strikes me as such a funny thing. The very definition of ambiguity would seem to be ‘multiple people disagreeing on the meaning of the word,’ but the appellate court decisions in those cases necessarily have to dismiss the reasonableness of the lower court’s understanding of the meaning in order to assert that the meaning is SO OBVIOUS.

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Picking A Jury? Read This First.

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Get Better Answers: Top 7 Posts on Supplemental Juror Questionnaires, by Dr. Ken Broda-Brahm, Persuasive Litigator

 http://bit.ly/2gHoIDn

Well, here’s a treat. Seven posts all in one on jury selection and jury questionnaires. How do you find the right jurors to hear and decide your case? Some people have a natural tendency to tell you whatever you want to hear. They are just trying to be helpful. Some potential jurors simply don’t want to be there, and hope to be dismissed.

You have little time to sort this out. It is time to become an expert in human psychology. –CCE

If I had to pick one trial reform that has the best chance of promoting reliable information in voir dire and in decreasing reliance on demographic biases, it would be the greater use of supplemental juror questionnaires. A well-designed questionnaire allows you to uncover the attitudes that are most relevant to bias in a given case context. Here are seven posts laying out the reasons why.

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