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? 

Absorbability: The Key to Good Legal Writing

The most important thing you can do to improve your legal writing is to write in a way that is easily absorbed.  A judge, law clerk or senior partner must be able to read it without words that they don't understand, without gaps in logic or common sense.  Asking others to proofread important documents can help smooth out any bumps.   This article gives you six tips to help you achieve this overall goal.

1.  Be Organized.
  A.  Have an introductory paragraph that tells the reader what you are going to say.
  B.  Say it in a logical way e.g.,
    1.  A plus
    2.  B plus
    3.  C equals D.
  C.  Have a conclusion telling the reader what you want, e.g., Because of XYZ, you must enter an Order enjoining the Plaintiff from using ABC in his/her next book.

2.  Put the Conclusion Up Front.  Some attorneys have impeccable logic that flows over page after page and the reader has no clue how the concepts link together to a climactic ending until the ending.  This writing style is hard to follow.   A "Gone With the Wind" writing style is difficult to follow unless you have a lazy afternoon curled up with a good kindle.  Therefore, tell the reader the conclusion up front so he or she knows in what direction the brilliant prose and logic is headed. 

3.  Briefs are supposed to be Brief.

Get to the point. This was overkill, but it was the briefest Brief I have ever submitted to a Judge. I represented several people aka Defendants who were sued for breach of contract. There was a written contract. The Plaintiff not only sued for breach of contract but also for unjust enrichment which only applies when there is no contract. This was my Brief:

Defendants [my clients] have cited Nevada law which forbids an unjust enrichment claim when there is a contract. Leasepartners Corp. v. Brooks Trust, 113 Nev. 749, 755, 942 P.2d 182 (1997). Plaintiff cites Arizona law to the contrary. Nevada law trumps Arizona law in Nevada.

4.  Visuals Can Help.

I like to put pictures in the documents I submit to the Court.  These can be charts, graphs or graphical clips from a contract.  A picture or diagram can make it much easier for the reader to follow.

In Conclusion, keep briefs brief.  Make them simple and easy to absorb.

How a Lawyer Develops and Keeps his/her Reputation

This is a great set of tips on how a lawyer develops and maintains a good reputation

http://www.abanet.org/litigation/litigationnews/trial_skills/120610-tips-protecting-your-reputation.html

Early Case Conference Meeting and Reports - NRCP 16.1

16.1 CASE CONFERENCE: include these items in your discussion and the report:

1--In what format discovery should be produced? Instead of paper, agree that
a--All interrogatories and request to admit be submitted in a Word document (so it doesn't have to be retyped to respond)
b--All documents be exchanged electronically in pdf format.

2--How you can effect service eg email with an attachment or fax both of which are way cheaper than delivery by hand or mail.

3 --One of the Discovery Commissioners requires three telephone calls and three letters before a discovery motion. Agree in the report that discovery motions can be filed 3 days after one fax or email and 2 t/p calls don't resolve the dispute.

4--For maximum flexibility in changing the discovery deadlines, agree that counsel can stipulate to increase or decrease all discovery deadlines for up to 60 days. (Authority--nrcp rule 16.1 (b)(2) allows counsel to change the normal discovery plan under 16.1 b and c).

5--Agree on bates stamping all documents produced.

6--Agree that all exhibits will be the same numbers for depositions, motions and trial.

Why Associates Should Write Status Letters

Associates should be self-motivated to write monthly status letters.

The UPSIDE to writing status letters once a month to a client (and their insurance companies, if any):

1-it keeps the client informed of what is happening on his or her case,

2-it makes the client more willing to pay the bill because they know what is happening on their case,

3-a cc or bc to the supervising shareholder gives them confidence that the case is moving forward,

4-it prevents malpractice in case something is happening that is contrary to the client or shareholders wishes, and

5-it has the side benefit of making money for your firm while accomplishing the 1st 4 benefits.

Note to self: telephone calls are not sufficient because a t/p call does not meet the goal of #3 & 4

The DOWNSIDE of not writing status letters: When discovered (usually by a client complaining "what is going on in my case") the associate gets put on probation and potentially fired.

Need additional motivation? See How to Bill 2000 Hours for more about status letters

P.S. Tell your secretary to calendar ALL files for review every 30 days for a status letter.

Disconnecting Credibility

Disingenuous is an interesting word. Technically it means someone lacks candor or is giving a false appearance of being frank. I used to think it meant someone was lying, but it really means that they are telling a half truth. Lying is when someone fabricates, fibs, prevaricates, perjures, deceives, dupes, fools, hoodwinks, tricks, falsifies, or misrepresents. Discussed below is one way to disconnect a lawyer’s credibility when he or she is being disingenuous or outright lying.

Disingenuous lawyers think they meet or exceed their NRPC 3.3 duty of candor even though they make materially false statements of fact or law. To these lawyers, a half (or a third) of the truth is just “effective advocacy” or as some salesmen say -- “puffing.” The Nevada Supreme Court described puffing in Bulbman, Inc. v. Nevada Bell, 825 P. 2d 588 (1992) as representations as to the reliability and performance of the system, thus puffing constitutes mere commendatory sales talk. Such “lawyer sales talk” has become commonplace in selling their client’s position. Unfortunately, there are lawyers who don’t know the line between puffing, half truths and outright lying.

Disingenuous lawyers think they are the smartest guys in the room because they know that it takes a ton of time to disprove a half truth and trial judges really dislike what can appear as mere bickering among counsel. The Nevada Supreme Court took a dim view of half truths. In Sierra Glass v. Viking Industries, 808 P. 2d 512 (1991), the Nevada Supreme Court referred counsel to the bar for sanctions where, at trial, the attorney read only part of the deposition into evidence and intentionally left out testimony of the deponent stating that the deponent resided in Las Vegas when the residency of the deponent was important to the issue of whether the deponent’s employer conducted business in Nevada. The Court said that what the lawyer thought was “clever lawyering and proficient advocacy was nothing other than a fraud on the court in violation of SCR Rule 172, (SCR Rule 172 is now NRPC 3.3) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal). The Court went on to say that counsel “clearly confused the concepts of effective advocacy and fraud.”

To counter disingenuous opposing counsel, you must disconnect their credibility by first restating the half truth. Unfortunately, this forces you to repeat it. Then you must disprove it by articulating that although part of what opposing counsel has said is true, most is a lie. You must do all of this without actually calling opposing counsel a liar because judges hate to be put in the position of deciding which attorney to believe. You must also do this in the shortest possible number of words.

The two column opposition or reply is an effective tool in disproving a half truth. Summarize the other party’s motion or opposition in the left column and put your client’s position in the right column. This technique puts perspective on half truths. An example is provided below. The two column approach allows lawyers to highlight the half-truths without bickering with counsel. Effective writing must show the judge what is wrong, as opposed to telling the judge. With citations to the record supporting your statements, counsel can effectively show the judge opposing counsel is misleading the court without engaging in unprofessional banter between counsel.

Disconnecting the other lawyer’s credibility, i.e., refuting half truths, is a powerful skill because it not only helps your argument but it also builds your credibility and reputation with that judge. Once the judge catches on to opposing counsel’s disingenuous arguments, opposing counsel has lost that argument, damaged his or her reputation and you have increased your credibility.

I. Smith’s Statement of Facts		Jones’s Reply
1. Smith always recognized that he was obligated to increase the payment amount owed under the contract when expenses increased.		Smith never recognized an obligation in increase payments owed under the contract.
2. Jones knew about the potential of an increase in expenses.		This is not correct. There is no evidence of any notice to Jones that expenses might increase. This is an example of ipse dixit—they say it is true, so therefore it must be true. If this was a correct fact, Smith would have attached an exhibit or affidavit or declaration to their pleadings.
3. On 2/20 Acme sent an email to Robinson stating that: --Smith and Jones had disagreements		Smith takes this fact out of context. First, in his deposition, Smith admitted that…..