Tag: legal research

Part II: Going to Trial? Tips for Young Lawyers

In the second part of our trial tips series, we continue to provide guidance for young lawyers and more experienced ones who want to succeed at trial, or at least put their best case forward. Below are more tips from the American Bar Association (“ABA”) on preparing and conducting trials.
● Create Witness Outlines, Not Questions. The best way is to prepare an outline of areas of questions for witnesses instead of preparing questions ahead of time. Doing so allows you to tell a story through conversation instead of reading exact questions that prevent a fluid question-and-answer witness session. Do, however, have certain questions prepared to ask on redirect to establish a fact or to impeach on cross-examination.
● Expect evidentiary issues. Know the rules of evidence extremely well prior to trial. Re-read the rules so that they are fresh in your mind. Expect to anticipate objections and be prepared to address those objections. If you have a complicated evidentiary issue, prepare a short memo ahead of time so you have a roadmap for your arguments before the court. Be sure to include legal citations and provide the memo to the judge during arguments.
● Use Effective Visual Aids. Even in civil litigation cases, both judges and jurors expect a visual presentation of the case. These visuals should be used during opening statements, when you are examining witnesses, and during closing arguments. The aid will help tell your story visually and support your theory of the case.
● Draft Closing Arguments. Make sure that your closing statement cites both the evidence and the applicable law that supports the merits and theme of your client’s case. Your closing argument should be prepared before trial begins. Create an outline prior to trial that cites testimony and exhibits you expect to be admitted at trial; you can modify your closing as the evidence evolves during trial.
● Observe and Listen. Pay attention to the facial expressions of the jurors and the judge during trial. Also, be sure to listen to the messaging being given to the judge and jury. The questions asked or rulings made by a judge will typically indicate how he or she is thinking regarding important issues and who may be winning the case.
While trial textbooks and other books are vital to preparing for trial, it is best to take a practical approach. Make sure you are prepared for unexpected surprises. Also, ask for help from an attorney who has tried cases before. Experience is the best teacher.
For more trial tips, go to the ABA’s website. For assistance with depositions and court reporting visit us today.

Telltale Signs of a Possibly Invalid Last Will and Testament

If you practice in estate planning, you may have a potential client come to you seeking to contest a decedent’s Last Will and Testament. When considering whether to contest such a document on a client’s behalf, you should consider the telltale red flags that are present when a will is likely invalid. Doing so will help you to identify successful legal bases to challenge the disputed will. Below is a non-exhaustive list of the most frequently present issues regarding improperly drafted (or executed) wills.

● Changes near the end of life: When a decedent makes changes to his or her prior estate plans and executes a Last Will and Testament close to their death, a person seeking to challenge the will should consider whether the decedent had enough mental capacity to execute the will and whether they were susceptible to improper influence of others, causing the changes;
● Changes after new Power of Attorney: When someone takes over control of the decedent’s healthcare and finances and shortly thereafter a new will is drafted and signed that includes that person, there is a presumption that the will is invalid;
● Questionable mental capacity: If the Last Will and Testament was executed at a time when the decedent’s mental capacity was questionable due to an intervening event or medical condition, the will may be invalidated due to lack of mental capacity;
● Attorney becomes beneficiary: When the attorney of the decedent becomes a substantial beneficiary of the estate, there is a presumption that as a matter of the new will is invalid and the burden shifts to the proponent of the will to show the will is legal by way of clear and convincing evidence;
● Technical faults: A will can have issues with the way it was drafted, its content, and even how it was executed. This includes failing to meet the required formalities mandated under applicable statutes. Any of these issues can successfully invalidate a will;
● Drastic changes without apparent reason: When there is a significant change in a decedent’s estate plans without any intervening factors that lead to the changes, this can be a sign of undue influence, lack of mental capacity, or some other concerns and the will should be looked at closely.
While the above is not an exhaustive list, they are the most typical situations that are involved when a will is successfully challenged. If you have a potential client that is seeking to contest a Last Will and Testament, look for the above hallmark signs of invalidity in your quest to successfully challenge the document.

Statute of Limitation versus Statute of Repose

Statute of Limitation versus Statute of Repose

Both statutes of limitations and statutes of repose are state laws that govern the time limits allowable under the law for a plaintiff to file a civil lawsuit. There are, however, a few key differences that every attorney should know.

Statute of Limitations

A statute of limitations is the time limit that a state places on a plaintiff’s right to seek a legal remedy by filing a lawsuit after suffering some type of harm. These time frames are generally expressed in years and the deadlines set often depend upon the type of case that is being filed in court. Of note, once the statute of limitations deadline has passed, the case is forever barred. There are two different types of statutes of limitations — those that apply to criminal cases and those that apply to civil cases. Most statutes of limitations apply to civil cases because most crimes, except for petty crimes or misdemeanors, do not have statutes of limitations.

Not only do statutes of limitations have two types, but claims are subject to two different statutes of limitations depending on the court where the case is filed. There are federal statutes of limitations for federal law-governed cases, as well as state statutes of limitations for state law-governed cases. Generally speaking, most state-imposed statutes of limitations range from one to six years. Common statutes of limitations in civil cases include breach of contract, debts, personal injury, libel or slander, property damage, as well as fraud and misrepresentation, to name a few.

Statutes of Repose

 Like a statute of limitations, which sets the time limit a plaintiff can file a lawsuit from the date of the incident, a statute of repose terminates certain legal rights if they are not acted on by a specific deadline. The deadline could be based on the passage of time or the occurrence of a specific event that itself does not cause someone harm or does not give rise to a lawsuit. Generally, statutes of repose apply to specific types of cases that are injury-related. Common cases in which statutes of repose apply include medical malpractice, construction defects, and product liability.

Know Your Deadlines

 If you are handling a lawsuit for a client, be sure to make yourself aware of statutes of limitations and statutes that apply to the case. Each state has its own statutes, so legal research is key.