How to Play Tennis With Your Spouse and Not Get Divorced

It is difficult to hit with a spouse (or significant other). After watching friends (with the help of lawyers and judges) divide their community property in half several times, I discovered that there is a way to practice tennis with your spouse and keep your net worth. Agree on two rules, then set up a specific practice routine.

Rule 1 is NEVER give your spouse tennis advice. To make sure this rule is clear, the key word is Never. It will be very difficult not to say “get your racket back sooner” or “brush up on the ball,” etc. However, if you violate this rule, make sure you are not within striking distance (or guys, at least wear a cup). A polite spouse may respond to your helpful tip by saying, "Here's a tip: Don't give me anymore tips."

There is one exception-- if the spouse asks for a tip, e.g., "Why am I hitting so many forehands into the net." Even then think long and hard about your answer. If you are forced to give a tip (or just can’t help yourself), there are two sub-rules:

a—Try to think of something your spouse did right (but needs to do it more often) and compliment it by saying, “It seems like you really hit some good forehands when you got your racket back very early,”

b—Only give out one tip (and only one and I mean one, not two), then follow sub-rule “a” above.

Rule 2 applies to the other spouse. Ask them not to say, “hit the ball closer to me” or “don’t hit with so much spin,” etc. Usually, the better player is trying to hit it nice and such not criticism is not easily swallowed.

There is a practice routine that works well because it prevents the less-skilled spouse from running across the court to hit the ball—which admittedly is usually quite fun to watch, but it restricts conversation on the way home from the courts.

Get a basket of balls. After a 5-15 minute warm up, place your spouse at the baseline on the forehand side of the court. You stand on the at the net on your forehand side so you are hitting cross court to each other—you at the net and your spouse at the baseline. The person on the baseline should practice footwork, watching the ball, and following through as well as trying to hit a low (just a few inches over the net, medium-speed ball, with a controlled stroke. If you can, make the net person take a step or two to the right or left and once in a while hit a lob. The net person should practice stepping forward, contacting the ball in front and watching the ball. Then switch until each person has hit from each of the four positions. The better player usually feeds the balls. Then, one of you should hit controlled serves about (20-30 balls) and the other person practices their return. This should take about an hour.

Sticking to these rules will assure a great workout, a few laughs and the biggest bonus—you will be able to talk to each other after the workout.

© 2016 Phil Aurbach, Las Vegas, NV

Some Thoughts About Organizing Discovery Documents & Trial Exhibits

After preparing for trial a few times, here are my thoughts about organizing discovery documents (usually in pdf format) and deciding which should be used at trial.

Use an excel spreadsheet to organize discovery documents as they come in.  

This spreadsheet can be very useful in several ways:

1.  To sort documents by bates number or by date or by element of the cause of action.  All you need to do is click the top box down arrow and the documents are automatically sorted in ascending or descending order based on bates number or date, etc.  This can be very useful to look at the documents:

-- in chronological order (instead of the order in which they are produced)

-- in order of element of the cause of action (because you can see when you don't have documents relating to a certain element eg causation)

-- you can sort the trial exhibits column so just the exhibits you want to use at trial will be listed at the top of the spreadsheet.

2.  If all the discovery documents are placed in the same folder as this spreadsheet, you can right click in a cell with a bates number and link that cell to the exact document.  After you link each bates cell to the specific document, you can click on the bates number while in the spreadsheet and the document will open so you can look at it.  

3.  Finally, when it comes to trial, you can delete columns E through H and you have your list of exhibits for use at trial.

Summarizing PDF Depos

Summarizing PDF depos

Instead of creating a separate document for a deposition summary, try this: summarize a pdf depo with bookmarks.  When you click on the bookmark, you go directly to the place in the deposition that you thought was important testimony.  You can highlight the testimony in the deposition to make it easier to see.

 

To get to the bookmark “pane” i.e., column, go to View in the pdf depo, then Show/Hide, Navigation Panes, Bookmarks.

The bookmark can summarize the key points of the deposition on that page.  Highlight the text (go to View, Comment, Drawings & Markups and click on the highlight icon to drag over the text of the depo.  Add a key word into the bookmark summary to make it even easier to review.  You can put all similar key words together by dragging the bookmarks into position.  This is how it looks:

The Key words are

BACKGROUND

CREDIBILITY

BONUS

$86K

P3

If there is a ~ tilde in the bookmark, the fact is especially important.

Ctrl F searches the pdf depo.

Shft Ctrl F searches the depo AND the bookmarks.

New Lawyers: HOW TO AVOID A “LACK OF FOUNDATION” OBJECTION

    Going to trial can be scary.  Wanting to win for your client combined with your ego not wanting to be embarrassed  can be a huge source of stress and anxiety.  This stress can skyrocket when you are in trial, attempting to get a document into evidence and your opponent objects--lack of foundation.  Here is how you overcome that objection in trial (or what you should have done before the trial started).

1.  First, the document must be authentic i.e., the document is what the you claim it is i.e., how do you show the court that this is the 2010 contract between your client and Acme, Inc.

A. Before Trial.  

1. You could attach it to your complaint and in one of the allegations (which is in it’s own paragraph) say “A true, correct and authentic copy of the 2010 contract between client and Acme is attached hereto, labeled Exhibit 1, and incorporated by reference herein.” If the answer to your complaint admits that allegation, your opponent has admitted that the contract is authentic.

2. In discovery, you could send a request to admit that says “A true, correct and authentic copy of the 2010 contract between client and Acme is attached hereto, labeled Exhibit 1.” If your opponent’s response to that request is “Admit,” your opponent has admitted that the contract is authentic.

3. In Nevada, if your opponent failed object to admissibility and state the grounds within 14 days after you sent him or her trial exhibits pursuant to NRCP Rule 16.1(a)(3), then any objections are deemed waived unless excused by the court.

4. Usually the rules or court order or just cooperation between counsel requires a meeting to see what stipulations as to admissibility of exhibits can be reached. The general rule is to stipulate to:

     a. documents your client signed,

     b. documents your client does not deny he or she received, 

     c.  documents that don’t hurt your case.

5. If you and your opponent stipulate to admissibility, you don’t need a foundation.

6. Sometimes counsel will stipulate to authenticity, but not relevance. Thus the court has to decide if the document is relevant (NRS 48.025/FRE 402).

B. During Trial.  Always know how to lay the foundation to prove that a document is authentic during trial because authentication or identification is required. (NRS 52.015/FRE 901).

1. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.

2. The provisions of NRS 52.025 to 52.105 [FRE 901(b)], inclusive, are illustrative and not restrictive examples of authentication or identification which conform to the requirements of this section.

3. Every authentication or identification is rebuttable by evidence or other showing sufficient to support a contrary finding.

4. All you need is a witness with personal knowledge.

     a. The testimony of a witness is sufficient for authentication or identification if he has personal knowledge that a matter is what it is claimed to be. (NRS 52.025/FRE 602).

     b. Your client must testify that the document is what you are claiming it to be.  When your client is on the stand, say “I am handing you what has been marked as proposed exhibit 1 which purports to be a 2010 contract between you and Acme.  Is that what it is?” [technically, this is leading but it is background and usually admissible].  If there is an objection that is sustained to that question, you ask “what is proposed exhibit 1.”

2. Next, the evidence must be relevant.

A.  “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. (NRS 48.015/FRE 401).

B. All relevant evidence is admissible (NRS 48.025/FRE 402), except:

     1. As otherwise provided by this title;

     2. As limited by the Constitution of the United States or of the State of Nevada; or

     3.  Where a statute limits the review of an administrative determination to the record made or evidence offered before that tribunal.

C. Evidence which is not relevant is not admissible.

D. Evidence which is relevant may be excluded on grounds that the probative value is outweighed by prejudice, confusion, delay, waste of time. (NRS 48.035/FRE 403).

Motions--put facts (and exhibits) in a declaration

Here is a tip. 

Motions should not have facts that have no evidentiary support.  

or 

Motions must have facts with evidentiary support.

Usually facts should be in a declaration from the client.  Facts should not be stated by the attorney in the body of a motion with no support.  Ipse dixit does not apply to the attorney who files the motion. Ipse dixit is an unsupported statement that rests solely on the authority of the individual who makes it.

Therefore, put facts in a declaration and only put the facts in the motion that are supported by an attached declaration.  Authenticate exhibits in the declaration i.e., all exhibits are exhibits to the declaration. Have statements in the declaration that would be admissible evidence in court.  Balance the number of facts in a declaration against the rule that you should have your client say as few things in a declaration as are absolutely necessary because later, when your client’s deposition is taken, previous statements in affidavits and declarations can be inconsistent with trial theories or subsequently developed facts and can be use to impeach your client if your client takes a different position.

EDCR 2.21 (8^th jud dist ct rules)  states:

  Rule2.21.Affidavits on motions.

      (a)Factual contentions involved in any pretrial or post-trial motion must be initially presented and heard upon affidavits, unsworn declarations under penalty of perjury, depositions, answers to interrogatories, and admissions on file. Oral testimony will not be received at the hearing, except upon the stipulation of parties and with the approval of the court, but the court may set the matter for a hearing at a time in the future and require or allow oral examination of the affiants/declarants to resolve factual issues shown by the affidavits/declarations to be in dispute. This provision does not apply to an application for a preliminary injunction pursuant to N.R.C.P. 65(a).

      (b)Each affidavit/declaration shall identify the affiant/declarant, the party on whose behalf it is submitted, and the motion or application to which it pertains and must be served and filed with the motion, opposition, or reply to which it relates.

      (c)Affidavits/declarations must contain only factual, evidentiary matter, conform with the requirements of N.R.C.P. 56(e), and avoid mere general conclusions or argument. Affidavits/declarations substantially defective in these respects may be stricken, wholly or in part.

NRCP Rule 56e states

      (e) Form of Affidavits; Further Testimony; Defense Required.  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. 

How to Have Fun Summarizing a Deposition

Use Keywords When Summarizing a Deposition.  Just kidding.  Summarizing a deposition is not fun.  However, I don't know how someone can summarize a deposition without a list of keywords.  Keywords are the elements of a cause of action, background, credibility, etc. You can use a table to enter your summary or you can insert a keyword at the beginning of each statement in the deposition that you want summarized.  This groups all facts relating to each element of your case. These two methods are explained below.

Using Paragraphs to Sort Keywords in Word 2007.  Here is a typical deposition summary.  The keyword is first.  The summary is next.  Then the page and line numbers are in parentheses.

Entity,  Bob is the president of four corporations:  Noma Group, Noma Properties, Noma Management, and Noma Construction and Development (1/19).

Agency.  Ed Toma was President before (3/14).

Assent.  Bob never saw the Joint Check Agreement before (5/14).

Agency.  The Joint Check Agreement "appears to be" signed by Mr. Toma's secretary, Sherry (9/24).

Agency.  Noma Construction and Development was the operating entity that ordinarily signed these kind of joint check agreements (10/23).

Consideration.  Bob doesn't remember if Plaintiff's equipment went into Defendant's project (11/23).

Assent.  Bob has no way of knowing if Phase II meant the 2nd cul de sac (12/16).

Select all, then Home, then paragraph then sort then makes sure the box says “sort by paragraph,” Text and Ascending—then click ok

You will get this

Agency.  Ed Toma was President before (3/14).

Agency.  Noma Construction and Development was the operating entity that ordinarily signed these kind of joint check agreements (10/23).

Agency.  The Joint Check Agreement "appears to be" signed by Mr. Toma's secretary, Sherry (9/24).

Assent.  Bob has no way of knowing if Phase II meant the 2nd cul de sac (12/16).

Assent.  Bob never saw the Joint Check Agreement before (5/14).

Consideration.  Bob doesn't remember if Plaintiff's equipment went into Defendant's project (11/23).

Entity,  Bob is the president of four corporations:  Noma Group, Noma Properties, Noma Management, and Noma Construction and Development (1/19).

i.               Using a 3-column Table to Sort Keywords in Word 2007.  This doesn’t take special software.  You can use a 3-column table in Word or you can just put the keyword as the first word in a paragraph and then sort the paragraphs alphabetically.

Then, highlight the table and in Word 2007 click Layout

Then click A-->Z Sort

How to Insert Graphics into Pleadings

Here are a few tips on inserting graphics into pleadings:
https://www.dropbox.com/s/wenf8xzrh25vh68/How%20to%20get%20graphics%20into%20Pleadi.pdf