Author: Elizabeth Gallo

No matter if you are a young attorney or one with years of experience, it is always best practice to freshen up on your legal and courtroom skills. While below are some tips on how to help you succeed in the courtroom in your first trial, many of these concepts can be applied outside of the courtroom, as well.

1. Always meet your deadlines: Whether the deadline to meet is pre-suit or after filing a lawsuit, you will always have deadlines in your cases. From preserving a statutory right to requesting the case be heard to providing a mediation statement, you should take careful note of every single one. You should also have reminders to make sure you are preparing for your deadlines as far ahead of time as possible.
2. Learn from others: Before you are set to go to trial, go to the courthouse and sit in on others. This will help you strategize on how to present your client’s story and also learn about the presiding judge’s courtroom manners. If you know what to expect at trial, arbitration, or mediation, you will be much more relaxed when handling your case.
3. Decide on judge or jury trial: In many cases either party involved in the matter has the right to request a jury trial, although some cases can only be heard by judges. Of note, jury trials tend to be more complicated than bench trials for numerous reasons. If the other side is granted a jury trial, however, you must prepare accordingly.
4. Learn about courtroom procedure: Be sure to learn the basics, at a minimum, of the courtroom procedures that will govern your case. Get a copy of the court’s local rules as well as any other rules that may govern the matter.
5. Know the elements of your case well: Because each legal claim has its own elements, be sure to learn them well and argue the facts and law that support your client has met his or her burden of proof. Notably, a plaintiff must prove every element of the case to win while a defendant only needs to disprove at least one element of the plaintiff’s case to win.
6. Admissibility of evidence is key: It is no use to have evidence to prove your case if it is not admissible in a court of law. Study the rules of evidence closely so that you have enough evidence, and the right type of evidence, to win your client’s case.

Going to trial can be overwhelming, as trial preparation takes hours of focused and detailed work. Preparing a thorough trial notebook is key as it keeps you organized, labels important documents, and has all you need in one place.

Last year, the Nevada Supreme Court issued a decision on whether or not under state law an insurer’s failure to defend – but not acting in bad faith – makes it liable for all losses resulting from the breach or just up to the policy limits plus costs. The court found an insurer’s liability is not capped at the policy limits.

The Case

After suffering brain injuries as a result of being struck by a truck, the accident victim and his guardian filed a personal injury lawsuit. The defendant, who used the truck for both personal and business purposes, was insured under a Progressive car insurance policy with a $100,000 personal auto liability policy limit. His company was insured under a commercial liability policy with Century Surety that had a $1 million limit.

Century determined the accident was not covered because it did not occur while the defendant was driving in the course and scope of his employment. The victim and guardian sued the defendant and his company claiming the accident was work-related. Century refused to defend the company. Both the owner and the company defaulted in the action. Then, the defendant and his company entered into a settlement agreement with the victim and guardian. Part of the agreement was that they would not enforce a judgment against the defendant and his company if the company assigned its rights against Century to them. The Court entered a default judgment concluding that the accident happened in the course and scope of the defendant’s employment with the company. The victim and guardian then filed suit against Century in state court, which was removed to federal court.

The Decision

The court found that Century did not act in bad faith by failing and refusing to defend the owner’s company but did breach its duty to do so. Accordingly, the company was entitled to recover damages in excess of the Century policy limit for the breach and that the default was a foreseeable result of the breach. The federal court specifically noted that bad faith was not required to impose liability above the policy limits.

The Nevada Supreme Court answered a certified question by the federal court, agreeing with its decision although noting this is the minority view. The court reasoned that, because the duty to defend is contractual, a breach of this duty gives rise to liability for consequential damages above and beyond the policy limits.

The case is Century Surety Company v. Andrew, Case No. 73756 (Nev. Dec. 13, 2018).

For any licensed attorneys out there – or hopeful law students – who want to practice in the state of Mississippi, you should know that if you fail the state bar exam three times, you are required to go back to law school if want to take a fourth crack at it.

Board of Bar Examiners’ Petition

The Mississippi state supreme court granted the Mississippi Board of Bar Examiners’ petition requiring 12 (yes, 12) additional semester hours of law school for those applicants who want to make a fourth attempt at passing the state bar examination. Two justices filed objections to granting the petition.

About 23 jurisdictions in the nation place a limit on the number of times an applicant can sit for its state bar exam. Some jurisdictions place certain conditions on applicants who are retaking the examination, such as waiting a year before reattempting or getting permission before taking it again.

Mississippi Bar Examination Statistics

269 applicants sat for the Mississippi state bar examination in 2018. The passing rate was under 50%. According to the petition submitted to the Mississippi supreme court, about 40% of applicants sitting for the Mississippi bar are repeat test takers, which significantly negatively affects bar passing rates.

Some note that there is no data supporting or denying the idea that additional legal education would help a return bar taker pass after three attempts. Many in the legal field advocate that there should be an absolute limit on the number of failures. No other state except for Mississippi has imposed a rule requiring additional legal education in order to retake the bar examination. Others feel a rule should have been imposed precluding an applicant from having any more chances to pass the bar after five failures.

According to data from the American Bar Association Journal, 47 of the University of Mississippi’s law school graduates sat for the bar in 2018 and had a 72.34% passing rate. As for Mississippi College, the state’s other law school, 74 law school graduates sat for the bar exam in 2018 and had a 48.65% passing rate.

Earlier this year, U.S. federal courts sent notices to attorneys across the country urging them not to share login credentials with their vendors. The concern is that vendors could have access to the attorneys’ confidential information. Accordingly, courts have asked lawyers across the nation to exercise caution when providing login credentials to a provider in order to grant them the ability to manage files. This advice coming from federal courts is also a warning to those attorneys who may be sharing login credentials to vendors at the state level.

Court Notices

Numerous federal district courts and bankruptcy courts sent notices out to attorneys regarding these privacy issues. While each message varied, the general warning was the same: Beware when providing login credentials with docket service vendors, as there is a risk of giving them access to sealed or confidential information. Since more and more courts across the United States are using e-filing and other online systems, and many lack the ability to integrate software with the court’s systems, the use of third-party vendors is appealing. While doing so may take a load off of staff, consideration of possible rule and ethics violations should not be looked over. This concern is especially true considering the position taken by federal courts across the nation, with state courts likely to follow.

There are, however, other concerns beyond the sharing of confidential information with third-party vendor include about which attorneys should be concerned.

Other Issues

For one, errors can happen when uploading documents into the court’s docketing system. If the information uploaded to the court e-filing system be incorrect or inaccurate it is not as simple a task as hitting delete to get rid of the information. Indeed, once a document has been uploaded into the court’s docketing system it becomes part of the court’s records. In order to remove the misinformation from the court’s records, a motion to strike must be filed, paid for, and approved by the court. If a third-party vendor uploads incorrect information into the court’s system, the ramifications can be significant if that error goes unnoticed until someone else sees it, like the presiding judge or opposing counsel.

Another real concern is liability. This is because any information provided or entered into the court’s system under a lawyer’s credentials, irrespective of who actually entered and/or uploaded this information, is the ultimate responsibility of that attorney. Simply put, if a document is uploaded into the court’s system and personal identifying or other confidential information has not been redacted, the attorney is responsible for that disclosure. For this reason, the ability to upload and edit documents should be in the hands of very few and trusted individuals.

No matter what you or your law firm decides to do, be sure to protect both the attorneys and clients when handling confidential information.