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Lesson 1: Any Case Can Be Won – Or Lost.

At any time, the defendant in a “clear liability” case can file for Bankruptcy. A seemingly irrelevant witness could say something unexpected in a deposition that gets you to the jury. Anyone who has been in practice more than a few years has turned a “dog” around and made a few bucks, or had a “sure thing” turn south. But what I am talking about is more of a state of mind.

It may be true that some cases just can’t be lost, or that some cases can’t be won. But any attorney who approaches the matter as a foregone conclusion will not invest the time, the money, the thought, or the effort that is necessary to prosecute the case in the way that it should be litigated.

The belief that something is a “slam dunk” – one way or the other – is an excuse to be lazy.

The better your case is, moreover, the harder the other side is going to be working to find a chink in the armor; the worse your case is, the greater the likelihood that you might catch you opponent off-guard and over-confident.

Any case can be lost – or won.

There may be cases which cannot be lost, or cases which cannot be won. But you won’t know for sure until after you have won or lost the case.

Lesson 2: Tell The Court Why You Should Win.

Much argument, whether oral or in brief, seems devoted to facts, law or other issues which may be true, correct or relevant, but which are not very persuasive.

In some circumstances, the law or the evidence will require a given result. But those situations are actually fairly infrequent. A court almost always has an excuse, or an exception, or a way to distinguish, if, for whatever reason, the judge does not want to rule in your client’s (or your adversary’s) favor.

Plus, the fact that some case or some statute says something isn’t, in and of itself, all that persuasive. The law or the decision likely came out the way it did because we want to encourage or discourage a given conduct, or to promote a certain policy. By identifying and articulating the underlying goals, you are providing the court with an argument that is hopefully, in and of itself, compelling or at least persuasive.

Then it may be necessary to provide the court with legal authority – or an explanation of why the legal authority cannot or should not apply under the circumstances – to enable the judge to comfortably rule in your client’s favor.

But the first, and most crucial step, is to get the court to want to rule in your favor.

It is important to recognize, in this regard, a potential distinction between the written reasons, rationale or other grounds upon which a decision is purportedly based and the real reason (or reasons) why the judge decided to rule for your client in the first place.

Lawyers are reluctant to use arguments which are “irrelevant” or contrary to law or unsupported by the record. And certainly counsel should be cognizant of a potential backlash. But the fact that something may seem “irrelevant” or was rejected by some other court in some other case or is not a part of the formal record does not necessarily mean that it is not potentially persuasive.

The central argument can be lost or watered down by a lot of factual or procedural backgrounds, or other formalities. Tell the court why you should win. Then provide legal support, or orient the audience, or explain the exceptions, or fill in the blanks.

Lesson 3: Don’t Try Your Case to the Mediator.

There are some cases where the mediation process can be very helpful. These are typically multi-party situations where mediation forces everyone together to elicit a coordinated response and/or isolates the “moving parts” so that the case can be resolved on a claim-by-claim basis.

In the garden variety case, however, mediation is simply a “crutch” that the defendant relies upon or a “hoop” that the defendant makes the plaintiff jump thru in order to settle the case.

The conventional wisdom seems to be that the plaintiff should make a compelling presentation in order to: (i) show the defendants that the plaintiff is ready to go to trial; and/or (ii) convince the mediator that the plaintiff has a strong case, so that the mediator will in turn convince the defendant that it has to come up with the money to settle the case.

This may be the correct approach in some or all cases.

It is my belief, however, that the plaintiff is generally better off skipping to the caucus stage. In addition to the general complaints by plaintiffs about what sometimes happens in mediation – that it gives the defendant (a) “free discovery” and/or (b) an opportunity to scare, intimidate, or beat down the plaintiff – I find it very difficult to believe that a mediator’s opinion or advice would have substantial influence on a sophisticated defendant in deciding whether or for how much to settle a case.

Moreover, while in some cases a compelling presentation by the plaintiff may shake the defendant out of complacency, the fear of the unknown is a powerful motivation. Even taking the discovery or enlightenment or potential “lightbulb” factor out of the equation, the plaintiff’s attorney likely has more to lose than to gain. Even a good presentation may fall short of expectations – or at least the fear of what the presentation might have been.

Finally, I find that litigants or their counsel frequently make points which are intended to encourage the other side to take pause regarding the strength of their case, but which, instead, cause them to become angry, recalcitrant or defensive. Rather than engendering a spirit of compromise, things sometimes start off moving in the opposite direction.

Lesson 4: Experts Can Be Fact Witnesses.

It is also important to distinguish between opinion testimony and simply factual testimony which is based on the witness’ own personal knowledge and experience, (but is nevertheless relevant to a material issue in the case). Defendants, in this regard, almost universally advance the false notion that direct evidence is required to conclusively establish every essential element of the plaintiff’s claim, (and to negate any and all of its defenses). A plaintiff, for example, is rear-ended, and the next day he has neck pain, and he goes to the doctor, and has a herniated disc. Many attorneys and judges would feel that a medical expert needs to formally opine in that case that the collision caused the herniation. The defendant, in the absence of such testimony, would certainly seek summary judgment or a directed verdict on the basis that there is “no evidence” as to medical causation. But there is evidence. It may be circumstantial evidence. It may be subject to rebuttal, and to cross-examination. But a reasonable juror or other person could (or at least should be permitted to) infer from the circumstances that the collision caused or contributed to the herniation. In such a case, (at least theoretically), an expert might be completely unnecessary.

Yet there are other circumstances where “opinion” testimony can be framed as factual, albeit circumstantial, evidence – which, at least potentially (i) obviates the need for a lot of the preparation time and expense, (ii) allows the witness to avoid making potentially damaging admissions or concessions about the plaintiff’s case, and (iii) is not subject to Daubert  under 702.

Let’s assume, for example, that the plaintiff needs to prove that a defendant inspection company had and breached a duty to conduct a certain type of test on a critical piece of equipment during the construction phase. So the plaintiff’s attorney locates a retired field engineer who formerly performed the same types of inspections, provides him with all of the depositions and other discovery materials, and seeks to elicit an opinion that, under the circumstances, the defendant should have, but did not, perform the test in question. While the defendant would argue, and a court might agree, that anything less would be insufficient for the plaintiff to carry its burden, an alternative approach might be to simply have the former inspector testify that, over the course of X years, he was involved in Y projects, and in every case he performed the Z test on every piece of critical equipment, including the type of equipment in question. Isn’t this relevant evidence from which a reasonable juror could conclude that the defendant had and breached a duty to the plaintiff?

The potential advantage to this type of expert testimony is: (i) the plaintiff doesn’t have to pay the expert a small fortune to review every potentially relevant piece of evidence or other information; (and have to wait for the expert to review all of those materials); (and assume the risk that he or she might miss something); (ii) if there are other elements to the plaintiff’s case for which the field engineer’s testimony would be unfavorable, he can simply say that he is testifying based upon his own personal experience; has not reviewed the facts; and doesn’t have sufficient information to render a reliable opinion about the plaintiff’s case; and (iii) the testimony is not 702 testimony subject to Daubert, but simply 602 testimony based upon the witness’ own personal knowledge and experience.

It is also important to consider whether expert testimony is necessary to establish liability in the first instance, or is simply being used to rebut some anticipated defense. In the event of a summary judgment, the plaintiff’s attorney likely wants to be able to argue that the expert issue in question is not “material”, or is at the very least an issue on which the defendant bears the burden of proof. In addition, the plaintiff may be able to argue for the modification of, or relief from, the typical scheduling order requiring the plaintiff to submit his or her expert report first. (This is another common fallacy advanced by defense counsel: that they need to know what the plaintiff’s experts are going to say first, so that their experts know what they are supposed to be responding to – which is, of course, ridiculous, because the defendant’s experts are supposed to be rendering their own opinions regarding the relevant issues in the case, based on the same factual evidence available to the plaintiffs; defendants, instead, frequently use their own experts to offer opinions which are nothing more than attacks on the methodology of the plaintiff’s expert in support of a Daubert motion to have the plaintiff’s expert excluded or eliminated in some way.)

Finally, it is important to be able to identify and distinguish those aspects of the expert’s testimony which are not really scientific or technical “opinions” or “conclusions” regarding the merits of the relevant claims or defenses, but either (a) a neutral attempt to simply educate the jury as to the meaning of jargon and other terms, or as to the understanding of underlying mechanisms, customs, or processes, which may be referenced in various documents or testimony, or as may be otherwise helpful in evaluating the material issues in the case; and/or (b) factual testimony based upon the witness’ own personal knowledge and experience, which is (assuming relevance) not subject to exclusion under Daubert.

Lesson 5: Take Depositions for Trial.

It often happens that the deposition of a treating physician which may have been taken earlier in the case will be used in lieu of live testimony. Yet there are many other circumstances where, in order to save time, money, or to prevent a continuance, the attorneys will agree at the last minute to use a “discovery” deposition for trial. Witnesses relocate, pass away, or get tied up. Witnesses become incapacitated, forget things, or simply lose interest. Defendants choose not to call witnesses, or are released through settlement, or are dismissed. In all of these cases, the plaintiff’s attorney may be left with a wide open, meandering deposition, (often not on videotape, nor making use of illustrative demonstratives and other exhibits), which cannot be used effectively before a jury, and perhaps having withheld what might have been the most compelling examination.

Before taking a deposition, attorneys should therefore consider how likely it is, (or perhaps desirable), that the deponent’s deposition testimony will be presented to the fact-finder. For example:

  • Is the case a bench trial or a jury trial?
  • Does the witness live in close proximity to the courthouse?
  • Does the witness live within the subpoena power of the court?
  • Is the witness elderly? Does he or she have health problems?
  • Is the witness a party? Or the employee of a party? And, if so, how likely is it that the party will be dismissed prior to trial, by settlement or otherwise? Are there other witnesses the defendant could make available in response to subpoena or call in their own case-in-chief to establish the same facts or defenses?
  • How busy is the witness? How flexible is his or her work schedule? Does he or she have to travel frequently? What are the chances that something may come up at the last minute to prevent the witness from being available to testify at trial?
  • How likely is it that the witness will leave or lose his or her job, or otherwise relocate?
  • What relationship, if any, does the witness have to the parties, and how likely is it that the relationship might strengthen or go sour?
  • Does the witness have any personal or financial incentive to testify, or not testify, at trial?

At the same time, of course, is the overriding reality that most cases do not actually go to trial. The deposition, in this respect, can be considered more as a tool to enhance settlement, (both directly and in terms of making an impact with the court in regard to summary judgment, motions in limine, or other pre-trial determinations), than as simply a “safety blanket” to fall back on, if necessary, at trial.

With many witnesses, it will be desirable, if not necessary, to conduct some level of open-ended, discovery-type exploration to uncover or document evidence needed to prepare experts, defeat dispositive motions, and exclude or minimize defenses and potential surprises at trial. But it is generally a good idea to get at least some trial-ready cross-examination “in the can” for mediation presentations, court filings, and, if necessary, to present to the jury. The balance will likely shift from case to case, witness to witness, depending on the prospects for settlement, the risks of involuntary dismissal, and the likelihood that the specific deponent in question will testify live in the event of a trial.

Taking a deposition for trial requires both preparation and discipline. We have all heard the adage: “Never ask a question on cross-examination you don’t know the answer to.” But simply knowing the answer to the question is generally not sufficient. The examiner must be able to effectively confront the witness with a prior statement, business record, photograph, learned treatise, or other convincing means of impeachment. Accordingly, the “discovery” regarding that witness has to be completed (to the extent possible) in advance. The attorney preparing for the deposition cannot simply identify the issues to be raised and explored, but must come to the table armed with exhibits and other impeachment evidence. Where the examiner is conducting the direct of a favorable witness, he or she needs to be prepared not only to elicit the favorable testimony supporting the plaintiff’s position, but also to lay the foundation for demonstrative aids, learned treatises and evidentiary exhibits which will lend support to the testimony and make the examination come to life.

The taking of the deposition itself requires discipline, because the attorney must use his or her imagination to envision the examination unfolding before the judge or jury. Questions have to be formulated both as if they were being presented live in the courtroom, and yet at the same time with the understanding and expectation that the previous question (or answer, or objection) may not be presented to the jury. Evidentiary exhibits must be authenticated. The foundation for learned treatises and demonstrative aids must be laid. When deciding whether to ask, or not ask, the next question: Assume that this is the trial.

Lesson 6: Make the Defendants Defend Their Position.

The fact that “Plaintiffs have the burden of proof” sometimes leads to this pervading notion that the defendants never have to explain anything.

Particularly in this “rapid response” world of e-mails and blackberries, we are sometimes over-anxious to tell the defendants why they are wrong, when we see where they are going, even before they have formally stated their position. This allows them to back-track and retroactively justify their actions or objections with excuses they think of later.

Even where the defendant has clearly stated a position, it is sometimes more effective to put the defendant on the spot, and to elicit either a failure to respond or a silly or disingenuous explanation.

With respect to substantive issues as well, the fact that plaintiffs have the burden of proof does not mean that the defense of the case stands alone in a vacuum.

What are the defendants really saying? Does that make sense? Is it consistent with the defendant’s other positions?

In a drug case, for example, the manufacturer might seek to Daubert the plaintiff’s expert physician on the grounds that he or she perhaps does not have sufficient knowledge with respect to the specific drug in question, or perhaps does not practice in the right specialty. Before defending the expert’s qualifications and methodology, one might ask what the defendant is really saying. Can’t any doctor prescribe the medication? Isn’t any doctor qualified to assess the risks for adverse outcomes in a given patient? In fact, isn;t that the heart of your learned intermediary defense?

In every case, something happened. I know it’s the plaintiff’s burden of proof to show a defect. But things don’t just blow up. If the plaintiffs are wrong about the stove, then what’s the explanation? A mysterious flammable gas floated up through the sewer system? A Mossad agent snuck in in the middle of the night a planted an undetectable pipe bomb?

We spend so much time building and defending our case that we sometimes forget to attack their defense – or lack of one.

Lesson 7: Take the Deposition Before Filing the Motion to Compel.

Frequently, initial discovery requests go largely unanswered. The first instinct, in many cases, is to file a basic motion to compel. Opposing counsel, however, has the freedom to make generalized representations about an alleged “burden” or the absence of responsive documents which are difficult to traverse.

It is generally helpful, therefore, to take a corporate representative or other deposition first. By questioning the witness, request by request, it will virtually always be the case that responsive documents or other evidence has not been produced, (and, in some cases, has even been lost or destroyed). Claims of “undue burden” can also frequently be preempted.

If and when a formal motion to compel is necessary, there is an evidentiary record to support the plaintiff’s claims of unresponsiveness and/or spoliation, rather than a swearing match between attorneys – where, in most cases, the defense attorney, (who, presumably, is in a better position to know what evidence his or her client does or does not posses), is going to get the benefit of the doubt.

Lesson 8: Go Visit Your Clients in Their Own Homes.

Many of us interact with clients exclusively in our offices or on the phone. When possible, it is extremely helpful to meet with your clients, and their families, in their own homes. In addition to tangible pieces of physical or demonstrative evidence – photographs, original artwork, refrigerator magnets, holiday cards – you will likely notice things about your clients’ lives, and how they have been affected, that the client himself or herself might be oblivious to, or assumes you understand, or simply takes for granted.

Family members, both separately and together, will have perceptions – and fears about the future for both the injured party and themselves – that are sometimes unknown to or omitted by the client. And, by getting everyone together, there is often a synergistic campfire-like effect where memories are enhanced, and points often illustrated though anecdote or example.

With digital technology, it is getting easier and easier to effectively capture tokens and keepsakes, and to record client interviews. Such video can be used to refresh the client’s recollection prior to his or her deposition, or can be used during mediation, at a mock trial, or in a settlement video.

Lesson 9: Don’t Let the Treating Physician Read the Record.

Rather than thinking of the treating physician as someone necessary for the establishment of “medical causation,” it is often helpful to think of him or her more as an educator, to explain records, x-rays, medical terms, illustrations or other evidence to the jury.

Highlight the records, or pieces of records, which are significant, and have him explain what they mean.

Ask about the good pieces first, in order to get the physician to feel like he or she is already committed.

Lesson 10: Don’t Be Afraid to Ask Your Client Questions During His or Her Deposition

When an adverse party takes the deposition of a favorable witness, the attorney defending the deposition generally refrains from questioning his or her own client or other witness to which the attorney has access. We are reluctant to unearth something unfavorable, or to reveal or highlight something the opposition might not have otherwise anticipated or fully considered. We assume, moreover, that we will be able to use affidavits or some other method to oppose dispositive motions, make a persuasive demand for settlement, and better prepare our witnesses to present compelling direct testimony with additional time prior to trial. While these are certainly valid considerations, countervailing considerations may include one or more of the following:

a. The projection of confidence in your client and your case to opposing counsel.

b. The lack of credence given to an affidavit once a party has been deposed.1

c. The calling into question of testimony that was not previously offered at the time of deposition.

d.  The ability to use deposition testimony for settlement purposes, without having to worry about an argument that privilege or work product over the “raw” or unedited video or other communications with the client or witness has been waived.

e. Logistical issues, (e.g. the client or witness resides in another state).

f. The possibility that your client, or other witness, may become infirm, mentally incapacitated, or pass away.

Based on these or other considerations, an attorney may consider asking his or her own client (or other favorable witness) a few well-phrased questions at the time of the deposition.2 While attorneys under such circumstances frequently fall into the habit of asking leading questions, (and while some predicates are often necessary to frame the cross-examination issue counsel intends to rebut or otherwise explain), the plaintiff’s attorney should make every effort to conduct a generally non-leading direct examination – for summary judgment purposes,3 as well as for settlement purposes or in the unlikely event that such testimony will be presented at trial.

Lesson 11: Pick Your Battles.

Some attorneys believe that every battle is worth fighting. That by making the defendant and defense counsel spend money, waste time, and otherwise work the file, the plaintiff will wear them out and beat them into submission. There are, of course, some motions or oppositions which are essential to the successful prosecution of the case. But for most attorneys, in most cases, there are a broad number of issues which may or may not be pressed, to varying degrees, in the attorney’s discretion. How the attorney exercises his or her discretion is often a matter of advancing, not only the client’s interests, but also the attorney’s own interests, or the interests of other clients; a function of the attorney’s relationship with opposing counsel, the opposing party, or the court; or a result of the attorney’s view of the moral or societal issues, the law, or the profession.

Many motions and oppositions, in this respect, seem to be advanced out of an attorney’s sense of what is “right” or what is “fair”; a motivation to put an opponent or an opposing counsel in his or her place; an urge to “set the record straight”; a desire to “get even”. Particularly where the attorney believes that his opponent has done something unethical or unprofessional. Yet in many cases, it seems to me, the urging of motions or opposition – and particularly motions which suggest that the opposing party or counsel has been unethical or unprofessional – and particularly where such motion or opposition seeks sanctions or petitions to hold the opposing party or counsel in contempt – are, in fact, counterproductive to the interests of the client, or, at best, a waste of time and effort.

My uncle likes to say that he asks himself one question: “How does it advance the interests of my client?”

I would modify that inquiry just a bit, to: “How does it advance the interests of my client or the profession?”

Of course, it is somewhat subjective and otherwise difficult to identify the interests of the profession. But what I try to look for are systemic issues which seem to cut across a broad number of cases.

When an opposing counsel, for example, misses a deadline, or stonewalls on discovery, or tries to back out of what I understood to be an agreement or stipulation, the court may agree with me in that particular case, but it will not likely have an effect on the judge’s thinking about issues generally or the disposition of any other cases. So, under those circumstances, I simply try to distinguish the motivation to vindicate my own (or my client’s own) slights or offenses from matters which will truly advance the interests of the client in the case.

When, however, the conduct or other matter goes to the heart of a disturbing trend or apparent misconception in the law, then I tend to view an attempt to vindicate that principle as a service to the profession. Just a few examples may include:

  • Use of confidentiality orders or agreements, which are entered on the pretense of protecting trade secrets, for the true purpose of preventing the sharing or admission of relevant evidence in other litigation;
  • Representations to the court which are not inconsistent with the record, but which are contradicted by evidence or other information in the attorney or client’s possession;4 or,
  • The notion that defendant’s expert testimony should be withheld, so that he or she can opine, not on the underlying facts (which are equally available to all parties), but on the opinions of the plaintiff’s expert.

I am frequently inclined to press these types of issues, even where it might not necessarily advance my client’s interests, because a victory might have a direct or indirect benefit to other litigants, the state of the law generally, and the ideals of the profession.

Remember, though, that life is short. Pick your battles.

Lesson 12: Don’t Accept Rules That Aren’t Rules.

There are numerous “rules” invoked by attorneys, and sometimes even the court, which really aren’t rules. While not every battle is worth fighting, (see Lesson No. 11), don’t let an opposing counsel throw you off with a “rule” unless he or she can direct you to a specific article, rule, statute, court order, or case.


1See, e.g., Jiminez v. All American Rathskeller, Inc., No. 06-3670, 2007 WL 2743431, pp.*4-8 (3d Cir. Sept. 21, 2007) (discussing the striking of “sham” affidavits which are inconsistent with prior deposition testimony); but see, e.g., Eicken v. USAA Federal Savings Bank, 498 F.Supp.2d 954, 961-962 (S.D.Tex. 2007).
2The attorney may also want to use the deposition as an opportunity to lay the foundation for demonstrative aids and exhibits, as discussed supra.
3. See, e.g., Bishop v. Peppertree Resorts, 212 F.Supp.2d 518, 523-524 (W.D.N.C. 2002) (refusing to consider testimony elicited through leading questions for summary judgment purposes); Morales-Arcadio v. Shannon Produce Farms, Inc., No. 605-cv-062, 2007 WL 2106188, p.*11 (S.D.Ga. July 18, 2007) (same). – [This, of course, seems silly; what could be more “leading” than an attorney-generated affidavit?]
4. This seems to happen frequently in pre-discovery situations where the information is unknown to plaintiffs or in situations where the evidence may be known to all parties, but is inadmissible due to a claim of privilege or to a protective order which has been entered in another case.