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

Court Tips

This is a list of tips for the new attorney. 

First, stand up when the judge comes into court, then SIT DOWN. You should not be standing while your opponent is giving their argument. When your opponent is done and sits down or stops talking for a long period of time. Stand whenever you address the judge.  This is how you ask permission:  You stand up and say "May I proceed, your honor?" The bottom line is that you should be sitting down while your opponent is standing and speaking unless you are making an objection or otherwise addressing the court.

Next, ask the judge permission for everything you do. For example, may I proceed your honor. May I approach the witness/clerk, your Honor.

Third, never argue with opposing counsel or even speak to him or her unless you ask the judge's permission  For example, "Your Honor, may I have the courts indulgence?" and you lean over and whisper to opposing counsel. Otherwise, all of your comments must be addressed to the court.   Sometimes you can object--politely.  

Fourth, avoid personal attacks. Judges dislike ad hominem arguments. This means an argument that does not address the substance but instead attacks counsel. 

Finally, you should never speak at the same time as opposing counsel. Judges feel out-of-control and get more angry from this than almost anything.

How to Be More Persuasive

PERSUASION

Who is persuasive & why?  Some attorneys think persuasion is just a matter of telling a judge how you think the facts should be applied to the law.  This is part of your job, but consider this analogy:  You can't push a string--you must pull it.  Someone can't force you to be persuaded and you can't force others to be persuaded. 

   "A person persuaded against his or her will is of the same opinion still."

Here is how you can be more persuasive:

1--The first step is preparation--you must a) know the facts;  b) know the law and c) develop a logical analysis of how the facts apply to the law. 

2--The next step is to anticipate the arguments of your opponent.

3--Third, put yourself in the position of a neutral judge.  What is the most logical, fair thing to do using common sense as a guide?  Answering this question requires lawyers to stop being an advocate.  This is not easy because can we get very passionate about our client's position.  However, the most persuasive attorneys that I have seen use what I call a "suggestion technique."  They briefly argue their case, then say, "Your honor, may I suggest that you..." Or say, "One approach to handling this might be to...."  Then, insert your conclusion as to the "logical, fair thing to do using common sense as a guide" which would be in your client's favor.

4--Consider how to get the judge's attention during your argument.  There are many distractions during an argument: noise, people coming or going, maybe some other case or personal matter affects the judge's concentration.  Writing on a large pad attached to an easel is the cheapest way.  Having a foam board with timeline printed on it is more expensive--$200 to $400.  A powerpoint is good also, but sometimes tough to set up on a motion calendar, but worth the effort if it is an important motion.  Electronics present special problems.  I used a powerpoint in a motion but because my screen resolution was higher than the Court's vga system, the judge only saw 2/3 of each slide on his screen--a problem I hadn't anticipated.

5--Finally, it is easiest to persuade someone with whom you have 1) a relationship 2) who trusts you and 3) respects you.  As our community grows, we have more and more judges.  Fewer and fewer were lawyers you may have practiced against and with whom you had a working relationship. However, you can easily develop the trust and respect of a judge by merely being honest.  Some attorneys either don't care or don't realize that disingenuous arguments (part is true and part is not true) are transparent.  If you say the case holding is X or that the facts are Y, and if you are careful to lay it out without stretching, you will develop trust and ultimately respect.

Want some information about a judge?

This website has some information about Clark County Judges.  It is information posted by the judge, but it contains some useful background and  procedural information.

Clark County Judges

This website has information about Clark County Judges as well but it is from a survey of attorneys, some of whom are happy with a judge's decisions and some of whom are upset about judges who can't see to agree with the attorney.

Attorney Survey of Clark County Judges

How to Capture More Billable Hours

Here are 3 tips to increase your billable hours:

1--bcc yourself on email and insert a key word eg "omega" in the subject line somewhere, you can do a search for "omega" at the end of the day and it will refresh your memory of time you spent that should be billed to a client.

2--another technique to increase hours is to keep a list of your clients on your desk and compare it to the time you have already billed for the day to see if you forgot anything.

3--a third technique is to compare your time entries to your emails for the day.

4--Finally, ask your secretary/assistant to send you a daily email listing the client, account number, and what you did that came through his or her desk, e.g. You may have had a conference call that was placed for you, but you forgot to capture the time.  Other types of time that might not get captured are: motions, letters or other documents that your secretary saw first i.e., came across his or her desk that were forwarded it to you.

How to attract new clients

Click below to attract new clients:
How to attract new clients

 The Secret of Outstanding Performance in Law School

            The first year of law school is like being dropped off in the ocean at midnight on a cloudy night.  You can see the land and a lighthouse, but you must put your head down and swim stroke after stroke until you look up again and see that the lighthouse is to the left of where you are swimming.  So you put your head down and swim, swim and swim until you look up again and the lighthouse is to your right.  You never quite know where you are because the feedback you get is few and far between.  There usually is one exam at the end of the semester.  The volume of material is tremendous.  Imagine being in the backyard of your house and having your neighbor directly behind you back up a dump truck as big as your house and begin to dump manure into your backyard.  The volume is enormous and you have one small shovel to keep your house from being buried by truckload after truckload of manure.  A book for a one semester subject may be a thousand pages long.  An outline of the book to study for the bar exam after law school will be approximately a hundred pages long, and the short outline to memorize prior to the exam will be approximately thirty pages long.  There will generally be seventeen of these outlines to memorize for the bar exam. 


          The students who get accepted to law school are the best of the best.  They must get A's and B's in high school to get into college.  Then they have to work reasonably hard to get A's and B's in college, as well as scoring high on the law school aptitude test.  Therefore, fellow students in law school are natural achievers who know what it means to work hard and get good grades.  However, law school can be quite deflating because in a class of 80 there may be one or two A's, four to six B's, and the rest C's, D's and F's--not quite the grades that these high achievers are used to receiving.

            Additionally, law school is not quite college in terms of what steps need to be taken to get good grades.  College requires 1) memorization of vocabulary or other terms and 2) the ability to regurgitate on the test the exact stuff you memorized.  Law school requires 1) memorization of legal principles (e.g. a gift is donative intent plus delivery of the item) plus the ability to recall them on the test, and 2) you have to be able to apply the law to the facts.  For example, Sally and Bill are in a restaurant.  Sally handed a watch to Bill.  Bill wouldn’t give it back.  Sally sued Bill and claimed she smiled and said, “Bill, you can look at this watch,” then they had an argument because Bill wouldn’t give her back the watch.  Bill claims Sally gave him the watch and said “Bill, you can have this watch.”  Zach, a person sitting in the restaurant, saw Sally and Bill talking.  Zach saw Sally smile as she handed the watch to Bill and Bill put it in his pocket.  A minute or two later, they started arguing.  A judge must decide who to believe.  When you get to be an attorney, you won’t know who will come into your office—Sally or Bill.  Therefore, as an attorney, you need to be able to analyze what facts would persuade a judge that Sally should win or that Bill should win.  In law school, you will need need to show the law school professor that you realize what facts shift the conclusion from Sally wins (Bill has to give it back) or Bill wins (and gets to keep it).  It is less important who wins.  It is somewhat important to show that you have memorized the elements of the law (donative intent + delivery) like college.  However, the more important requirement in law school is showing that you know how the facts can be argued to change the outcome. This called "thinking like an attorney and it is what makes law school different from college.  For example, one law students answer might look like this:

Bill would argue that Sally’s smile showed her intent to give him the watch.  Additionally, they didn’t argue over the watch, they were arguing politics.  Finally, the fact that they did not argue immediately after he put it in his pocket shows that she meant to give it to him forever.  However, Sally would argue that she tried nicely to get the watch back after she let him look at it, but he wouldn’t give it back to her.  Her only recourse was this lawsuit.

           

            The hard part of law school is that the volume of memorization of legal principals is overwhelming.  Watching the professor question the students in class and reading dissenting opinions show law students how certain facts can be argued to change the outcome.  Class notes add to the volume of material to synthesize.

            Some students will easily remember what they learned in class.  Most students need to focus on these tips to spend their time efficiently.  The following five tips will ensure success in law school.  

1.         Don't over prepare for class.  This first tip will be very difficult to follow and will be contrary to every single rule law professors and fellow students, as well as lawyers, will tell law students.  However, the maximum preparation time for each class should be 15 to 30 minutes.  Unfortunately, most law students follow the advice of their professors who want their students to facilitate class discussion. A law student's first year in class can be embarassing.  The student over prepares, think they know the "right" answer. Then, in front of the entire class, the student discovers they were wrong. By not over preparing, you may lose extra credit points and look like you don't "get it" in front of your peers.  However, your peers will change their minds about you when the grades come out because to their amazement, you will get a great grade.    

2.         During class, take furious notes.  Write down everything that is said by the professor.  Everything.  Great note taking is an essential skill for law students as well as lawyers.

3.         After each class, spend 1 to 3 hours reading the materials that were covered in class, then outline or "brief" the cases, and finally integrate the case briefs into your rewritten version of your class notes.  One way to do this is to have a spiral notebook for each class.  Take class notes on the right side of the notebook (don't write on the back of each sheet).  Then rewrite your notes on the left side cleanly, neatly, legibly, with the cases and the professor's comments integrated into the rewritten notes.  The act of writing helps many people memorize the material.

4.         Reread all of your rewritten notes every Friday.  Don't read just that week's notes, but all notes.  Be in a constant state of review!  On Fridays, take your rewritten notes and condense them into an outline form, put them on 3x5 cards and take them with you wherever you go.

5.         Last, but not least, go over your 3x5 cards daily.  Go over all of the cards every day and begin memorizing the outline concepts that you have distilled onto your 3x5 cards.  This memorization technique is absolutely the most important thing you can do in law school. As an alternative, some students condense their outline until it is one or two pages that can be memorized.

                                                                Persistence......

“Nothing in the world can take the place of persistence.  Talent will not; nothing is more common than unsuccessful men with talent.  Genius will not; unrewarded genius is almost a proverb.  Education will not; the world is full of educated derelicts.  Persistence and determination alone are omnipotent.”

        --Calvin Coolidge

How to be an Aggressive Attorney

An aggressive attorney is not the screamer, yeller or intimidator. The most aggressive attorney is one that does not falter from:

1) knowing the rules,

2) asking nicely per the rule for stuff with a date for production,

3) following up ON THAT DATE, and asking nicely again with another date,

4) following up with a phone call ON THE NEXT DATE,

5) following up with a letter requesting a meet and confer on another date because couldn't resolve the issue,

6) holding the meet and confer,

7) filing a motion to compel,

8) getting an appropriate order and starting all over to get compliance--all in a nice way since the judge will probably review all of your communications.

Basically, the very best attorneys at being aggressive are ones that keep to-do lists and a good calendaring system as well as being persistent in following up.

Weak attorneys have LADD (legal attention deficit disorder). They get excited about every new case and forget about the previous ones that need follow up.

Attorneys who try to negotiate by intimidation tactics are fun to watch if you know the game they are playing. If you don’t recognize the game, you will get angry and counter-attack. However, he who angers you, controls you. 

Recognize what is happening and sidestep the aggression by quickly focusing on the exact nature of the disagreement. Then, you must do two things. First, tell counsel in no uncertain terms that "I do not appreciate your personal attack on me. There is no reason to attack me personally because we disagree." Say something like, "We clearly have a difference of opinion regarding what documents the expert is required to bring. Let me make sure I understand your position.  It is your belief that the expert is not required to bring the documents that we have been discussing and I believe he can. We will let the judge resolve that dispute. However, just because we disagree, that is no reason for you to personally attack me." Second attempt to determine what issues you can agree upon. At the very least, you and opposing counsel can crystallize your positions, i.e., determine whether you disagree and the basis of each of your theories. It may be that once you are fully informed of the basis of opposing counsel's objections, you will agree with him. It is much more difficult to accept the validity of opposing counsel's point of view if he or she has made a personal attack upon you, especially if your response escalated the attack.

Professional attorneys don’t need intimidation tactics. They press the case forward as fast as possible. This conduct should be your role model. Keep the opposing attorney always on the defensive. You file the motion, you set the 16.1 conference, you notice the depositions, etc. There is nothing more aggressive than keeping the opposing counsel on his or her heels by holding their feet to the fire.

Aggressive attorneys can grant extensions to answer discovery and still be aggressive by calendaring when the answers are due, sending faxes and calling to try to get a response and filing motions to compel if your opponent does not meet the time deadlines. This means being detailed in calendaring and following up on deadlines. A good system to follow up on these time deadlines is imperative.

If you think your job is to win, you have nothing but disappointment in your future. Your job is to take the facts and package them in the most persuasive way. You can file motions, maneuver and outwit your opponent, but in the end, the judge or jury decides who wins. All that an attorney can do for his or her client is package the facts in the most persuasive way possible.

Aggressive attorneys don’t give up just because a judge has indicated he or she may rule against you. Politely try to make your argument. If the judge won't let you, ask "May I state my objection for the record?"

Deposition Tips

Deposition Tips

Keep a witness file for each witness or potential witness in a case.  In the old days (or today with some older attorneys) a witness file was a bankers box or expando with a folder for each witness. Hard copies of documents including questions for that witness that pop into the attorney's brain would all be located in the witness folders.  Now-a-days, the attorneys that have given up Selectric typewriters create an electronic folder called Witnesses with a sub folder for each witness.  In this sub folder, keep a Word document for depo questions for the witness.  Also, keep a copy of all documents about which you might want to question the witness as well as a copy of all affidavits or other statements under oath given by that witness.  Finally, keep general, deposition starter questions in the file e.g.,

GENERAL DEPOSITION QUESTIONS

NRCP 30(b)(4)

[At the beginning of the deposition you can stipulate to waive some or all of these] Unless otherwise agreed by the parties, a deposition shall . . . begin with a statement on the record by the officer [court reporter] that includes (A) the officer’s name and business address; (B) the date, time and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.

At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.  [such as "any notary"? which means the court reporter can send the original to counsel, have his or her client read it & make changes, and a notary from his or her office notarize the depo.  Otherwise, the deponent must go to the court reporter's office and the court reporter that took the deposition must notarize the original deposition].

          When taking a deposition, you should consider asking virtually all of these questions of the deponent:

INSTRUCTIONS

1.                  State your name and spell it for the record please.

2.                   Do you understand that your testimony today is under oath with the same penalties for perjury as if you were testifying in court?

3.                   Do you understand that the Court Reporter is taking down everything you say?

4.                   I'm not going to try to trick you with my questions today, but I will assume you understood my question if you answer it.  If you don't understand a question, tell me and I will rephrase it.  After this deposition the Court Reporter will transcribe my questions and your answers and put them in a booklet.  You will have an opportunity to review this booklet and make any changes to your testimony.  However, if you make any changes or if you testify differently at trial, I will be able to question you at trial that you testified differently under oath at your deposition.  Do you understand?

5.                   Please wait until I complete my question before you answer so we both aren't talking at the same time.  Also answer each question out loud instead of nodding your head so the Court Reporter can take down your answer.  OK?

6.                   Are you on any medication today?  Please name all medications and what they are for.  Would any of them affect your ability to understand my questions and accurately answer them?

7.                   Have you ever been convicted of a felony?  If so, where, when and what was the nature of the crime?

8.                   Have you ever been sued individually before this case? If so, explain all of them (who was the plaintiff, defendant and all of the claims for each of them).

9.                   Have you ever individually sued anyone before?  If so, explain all of them (who was the plaintiff, defendant and all of the claims for each of them).

10.              Has any other business corporation or other entity like an LLC or partnership that you were an owner of ever sued or been sued before this case?  If so, explain all of them (who was the plaintiff, defendant and all of the claims for each of them).

11.              Have you ever had your deposition taken before?  How many times and when?  What kind of case?  Were you the Plaintiff or Defendant?

12.              What is your current address?

13.              What is your Social Security number?  I am not sure if you can ask this but the reason is if you get a judgment, there may be someone else whose name is the same and you will need to be able to distinguish the two persons when you seize assets.

14.              What is your drivers license number?

15.              What is your date of birth?

EDUCATION

16.              Are you a high school graduate?

17.              Could you tell me the year and school from which you graduated and spell them for me?

18.              Did you attend college?  What years did you attend?

19.              What was your major?  Did you obtain any post graduate study?  Where?  When?  What areas?

20.              As part of your post-graduate study, did you do any sort of special research or thesis or anything like that?  Did you have any area in which you specialized?

21.              How many credit hours did you accumulate in that specialization?

22.              What sort of papers or articles did you write regarding that specialization?  Can you recall the subjects of any other articles or papers you might have written?

WORK HISTORY

23.              Where are you employed?  How long have you been so employed?

24.              What are your duties at your present employment?

25.              What qualifications (education or experience) were needed for you to obtain your present employment?

26.              Can you give me a chronological description of your work and employment experience starting ______ (i.e., when you came to Las Vegas, 1960, etc., depending on appropriate circumstances).  (Make sure you have the deponent state the date that the job started, name of the company, type of business the company was involved in, how long the deponent held the job, the duties performed at that job and the date the next job started.)

DEPO PREP

27.              Did you review any documents before you came here today?  What documents?

28.              Did you meet with an attorney before you came here today?  Who and where and how long? Was anyone else present?

29.              Did you meet in person or on the phone with anyone else regarding this deposition before you came here today?  If so, what was said?

30.              Other than your attorney have you discussed the case with anyone prior to coming here today?  Who?  When?  Where?

31.              What did you discuss with each person?

32.              Go over in meticulous detail the circumstances of the transactions that led to the lawsuit.  Ask names, addresses and telephone numbers of all potential witnesses as the interrogation proceeds.  Ask what was said during each conversation as to the substance of each conversation with each person as well as what was observed or heard.  You should be looking for relevant evidence and therefore you should make sure the transcript that will be typed will contain complete sentences for your questions and their answers with correct spellings and addresses.

33.              With regard to documents, describe the document on the record before asking questions it.  Ask the deponent: "I show you Plaintiff's Exhibit 1, which is a copy of the joint check agree­ment between you and the general contractor.  Please read it to yourself and tell me when you are done."  When deponent is done, "Recognize it? I this the joint check agreement between you and the general contractor?"

34.             After each area of questioning, ask, “now is there anything else my client said on that date?”

35.             Are there any other document, etc. that you have that relate to our request for production. Where is it located?  Who has control of that document?