Tag: litigators

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.

A recent American Bar Foundation report based on interviews and focus groups with female lawyers revealed that the most cited reasons for female lawyers leaving law firms was unfair or biased compensation systems. The report was based on 12 focus groups located in six cities as well as 12 individual interviews.

The Issues

According to the study, female lawyers reported that they originated more work than some of their male counterparts and still received lower pay. The study and report was done in collaboration with the American Bar Association’s (ABA) Commission on Women in the Legal Profession as part of the ABA’s initiative on long-term careers for female attorneys.

According to the ABA’s May 3, 2021 press release, among the combination of factors that affected women’s decisions on whether to remain at their law firms, leave the profession, or move to a different legal job after being in the legal profession for more than 15 years was unfair compensation. A large number of the women in the study were their family’s breadwinners with spouses who were either low-paid or unpaid. The women reported that the pay disparities affected their ability to support their families as well as engage in leadership opportunities at their firms.

Multiple female lawyers reported that their firms told them they were making less than their male counterparts because the men had to support a wife and children. Many respondents also noted an inequitable distribution of origination credit for cases.

Should I Stay or Should I Go?

In addition to inequitable compensation, additional factors that influenced the women’s decisions to leave the profession included:

• Poor collegiality due to a bullying atmosphere and a hyper-competitive culture;
• Driven isolation from colleagues due, in part, by ever-increasing demands for billable hours and lack of women in leadership;
• Behavior that was sexist and racist;
• The want for more fulfilling, interesting, or challenging work that would remain with senior partners;
• Being looked over for promotions, particularly to equity partner, especially for women who worked fewer hours; and
• Unpredictable schedules and long hours, making it difficult to manage personal and professional schedules.

There were, however, positive aspects of the profession that respondents identified even if the final decision was to leave the law. This included:

• Intellectual stimulation in the law;
• Relationships with colleagues at the firm;
• The ability to help clients solve legal issues;
• Autonomy in their work;
• The social impact of the work;
• Monetary compensation compared to other professions.

More information on this topic can be found here.

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Attorneys are stewards of personal and sensitive information provided to them by clients. Lawyers are also officers of the court and are in roles of public trust. The standards placed on attorneys are high, however, and lawyers must carefully mind ethics obligations to avoid running afoul of the rules. That being said, issues can arise. Below are tips on how to avoid ethical pitfalls and disciplinary action according to the American Bar Association (“ABA”) Journal.

Tips for Lawyers

Most states across the nation require training in ethics as part of lawyers’ continuing legal education requirements. With the economic challenges that have come as a result of the coronavirus pandemic, both recently licensed and experienced attorneys have had to reevaluate how they practice — and, sometimes, even their career paths. Law school training, however, may not have properly prepared attorneys (especially newer ones) on the ethical and business related challenges typically faced in small firm or solo practice. This leaves attorneys at these sized firms — both new and veteran — in a more vulnerable place when it comes to disciplinary complaints.

• Create strong office management processes: Not only will this help make sure you can meet your clients’ needs, but a good system is critical for avoiding disciplinary issues. Basics should include a diary and docketing system to keep track of court filing deadlines, hearings, and statutes of limitations. Tickler systems for file reviews will ensure you do so at regular intervals and prevent things from slipping through the cracks;
• Intake screening is key: Learning when to accept a potential client’s case and when to reject it is important. Discerning when a potential client will be difficult is a critical skill. Know that you do not have to take every potential client’s case but, rather, you can use discretion in client selection. Undertaking matters in diverse areas of law requires you learn those areas, possibly leaving you overwhelmed or unable to develop an expertise;
• Client and third party funds are sacred: Repeat this to yourself on a daily basis. Lawyers have both a fiduciary and ethical duty to maintain, handle, and disburse client funds only for their intended purpose. These practices must be consistent with relevant rules and applicable law — so learn the trust accounting rules in your jurisdiction. Misuse of client’s funds will guarantee disciplinary action;
• Communicate often: Lack of communication is one of the top complaints made against attorneys. When an attorney does not promptly respond to a client’s emails or phone calls, they become frustrated and dissatisfied. Ethical rules require attorneys to keep a client reasonably informed about their matters and promptly comply with reasonable requests;
• Diligently follow-through: When clients’ matters are neglected, disciplinary charges often include lack of communication. If an attorney just stops working on a matter or delays his or her work, this can be a problem. Accepting a legal matter on behalf of a client requires diligent follow-through until the representation has finished.

For more legal practice tips from the ABA, click here.

For more legal tips on our blog, check out How Lawyers can improve their Online Reputation and Creating Opportunities in your Legal Career.

A North Carolina court recently granted in part and denied in part a defendant’s motion for sanctions against the plaintiff for missing deadlines to respond to discovery requests. Subsequent to the filing of the motion for sanctions, the plaintiff produced documents that were illegible and failed to comply with ESI protocol. Plaintiff also failed to conduct a search of email accounts and a mobile phone, both of which clearly had data that was responsive to the discovery requests.

The Discovery Dispute

The North Carolina court had issued a prior order imposing sanctions on the plaintiffs, which required payment of expenses and set a 30-day deadline to comply with the discovery. This deadline was imposed when the plaintiffs did not propose a date themselves to the court.

Although the plaintiffs missed the court’s deadline, the defendant agreed to a month extension. No production, however, actually occurred. Since the date of the discovery order instructing the parties to resolve the dispute, the plaintiffs had four months to produce. At that point, the plaintiffs claimed it would take even more time to review more than 160,000 pages of responsive material and remove duplicates. They also noted that the counterclaim defendants would need to review the production. When the plaintiffs requested more time, the court denied the request and instead ordered the parties to meet and propose an agreed-upon discovery schedule.

The plaintiffs missed the first deadline and disclosed that they could not follow the proposed schedule. They also noted they could no longer afford to hire an electronic discovery vendor due to expense and that they had to review 160,000 documents — not 160,000 pages.

The Court’s Decision

The court noted that the plaintiffs’ failure to timely produce documents on dates that they chose was unacceptable. Although the plaintiffs pleaded at court hearings that they were inexperienced in the complexities of ESI discovery and that they needed to coordinate discovery production with counsel for counterclaim defendants, the court did not find either one as a valid excuse. The court issued sanctions reasoning that the defendant suffered prejudice and to ensure respect for the judicial process.

According to the American Bar Association (ABA), there are several things an attorney can do to avoid mishandling discovery during litigation. These include:

• Creating a realistic schedule and sticking to it;
• Starting discovery as early as possible;
• Dating, sourcing, and stamping each delivery of documents;
• Preparing a privilege log; and
• Understanding the new Federal Rules.

The case is State of North Carolina vs. AppyCity, LLC; Timothy S. Fields; Melissa Crete; and Daisy Mae Fowler a/k/a Daisy Mae Barber 2021 NCBC LEXIS 17 (N.C. Super. Mar. 3, 2021).