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Deposition Boot Camp - The Purpose of Depositions

In conjunction with its Deposition Boot Camps (the next one in Philadelphia on November 12-13), the FDCC has published a deposition manual written by its members.  In Chapter One, The Purpose of Depositions - Dos and Don'ts, Marc Barre and Drew Timmons address how to secure the "good facts" during deposition:

If you can, begin your deposition with the good facts - those are the questions you will have prepared in your outline and the ones to which you believe you know the answer.  Starting your deposition with these questions will also allow you to get into a comfort zone with the witness.  For example, in a deposition of the plaintiff, find out if plaintiff's version of events actually supports the claim he raised in the complaint.  Before deposing a plaintiff, or any witness who may be able to support plaintiff's version of events, review the allegations contained in the Complaint, and discovery responses, if available, so that you truly understand the specific claim being raised.  Then, draft your deposition outline with an eye toward obtaining facts regarding the specific elements of each claim (i.e., what does the plaintiff need to prove in order to prevail?).  The more information you obtain from the Plaintiff about the circumstances of the incident, the better you will be able to craft your defenses.  Similarly, make sure you have explored the potential defenses available to your client, and ask as many questions as possible from the witness to obtain testimony which supports those defenses.  With this foundation, you will be able to extract the most relevant information from every witness, expert and fact witness alike. 




Offers of Judgment - Attorneys' fees

Hypothetically speaking - let's assume for the sake of argument that one count of a complaint is a "loser" and that claim, and that claim alone, brings with it a right to recover attorney's fees.  Let's also assume that there has been some activity in the case, including a motion to dismiss the complaint which bore some fruit on other claims, but not the one with the attorney's fees.  And also assume that the claim with the attorney's fees is separate and distinct factually and legally from the other claims, and also has substantially lower exposure than the other claims.

When making an offer of judgment as to the one count which brings attorneys' fees, how do you account for the fees?  some of the fees incurred to that point by the Plaintiff will be for services with respect to all of the claims, some for only the other claims, and some for the claim with the fees.

Anyone ever dealt with that?

Scott Machanic

How Not To Waste Your Time and the Parties’ Money on Interrogatorie

Interrogatories are a nuisance.  Too often they are served with no real purpose.  Far too often, they are answered in the most evasive and non-responsive manner possible.  Both the propounding party and the responding party devote significant effort to drafting and serving them, often with a result that does not materially affect the status or merits of the lawsuit.  How can we as defense lawyers avoid this?


Serve Interrogatories Only When Necessary


Not all information is best sought by way of interrogatories, especially in a jurisdiction such as the federal courts where disclosures of witnesses and documents are mandatory.  Before serving an interrogatory, identify what you want to know and consider whether there is a better way of obtaining that information. 


The best interrogatories come in two flavors:  (1)Those, like good cross-examination, where you don’t care what the actual answer is because any answer will be beneficial to your case; you simply need to force your adversary to take some position; or (2)Where the question is so basic, simple and unambiguous, that your adversary will be forced to answer in a simple declarative sentence if it does not want to appear sanctionably evasive.


Ask Only The Important Questions


Unless you are at the end of discovery and will have no opportunity for follow up questions, leave the follow up questions out of the interrogatories.  Ask them once you have responses.  You’ll ask fewer questions overall.  Now that the federal courts and many states have limitations on the number of interrogatories, an interrogatory is a valuable commodity not to be squandered. 


Write Like Hemmingway


Yes, this post fails that test.  Writing like Hemmingway is difficult for lawyers.  But, you can do it.  Ask questions using simple interrogative sentences.  Avoid unnecessary adjectives and adverbs.  Keep your sentence structure simple.  The presence of commas is a cue to reconsider your word choice. 


Don’t Answer Like a Weasel


Answer the question.  If you don’t know, say so.  If you need to make inquiries before answering the question, make them first.  Facts, unlike some adult beverages, rarely become better over time.


Whatever you do don’t be evasive or defensive.  As all parents know, one of the “tells” regarding a child’s conduct is how evasive or defensive the child is when responding to parental questions.  Numerous political scandals teach us the cover-up is almost always worse than the offense.  The best way to address bad facts is to be truthful and direct.  It’s desirable to explain the bad facts, but do not hide the admission in a long winded imprecise explanation. 


Object For A Reason


Objections are appropriate and necessary.  Make them count by only making those which will make a difference, either for the particular response or to avoid waiving a privilege.  If you can’t explain the basis of the objection to a judge in a concise manner, don’t make it.  For example, if the objection is “vague and ambiguous,” know why the question is vague, and be able to identify the multiple inconsistent meanings that render it ambiguous. 


Why This Matters


Interrogatory responses can be offered into evidence at trial.  Will a jury be impressed with your eight lines and 100-150 word objections, or will they believe you are hiding unfavorable evidence from them?  Juries never believe you’re hiding favorable evidence.  They rarely consider the possibility the evidence being “hidden” may simply be neutral or inconsequential. 


Plain speaking in interrogatories and responses also is beneficial when bringing or opposing motions to compel.  As those of us who have had the misfortune to sit through a calendar where the court is considering discovery motions can attest, judges don’t like discovery motions.  They really don’t like obfuscation and evasion.  And, they dislike bad questions. 




Keep it simple, stupid.  As simple questions.  Give plain answers.  Don’t serve interrogatories simply because you don’t know what else to do.  If you don’t have a plan of action before drafting interrogatories, stop and develop that plan first.  Random acts of kindness are beneficial.  Random acts of discovery are unproductive. 

Sue First- Ask Questions Later

From time to time most defense attorneys find themselves in a situation where they are asked to file, usually on extremely short notice, complaints or cross-complaints against multiple parties.  Federal Rule 11 and its state counterparts obligate the attorney to make an inquiry reasonable under the circumstances to confirm the claims being asserted are warranted by existing law and the factual contentions have or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.  In these circumstances, how can the attorney both meet his or her obligation to the client without violating Rule 11 or its state counterpart?

Suing first, and asking questions later is not the solution.  No single solution will work in every instance, but there are a number of steps the attorney can take to avoid being put in this awkward position.

1.         Anticipate the need.

Many “emergencies” are so only because the attorney has failed to stop and look ahead to identify predictable pending events.  If an opponent who has sued in the past appears with a new claim, it’s likely the opponent will sue again this time.  If so, by anticipating the need and taking action in a considered and deliberate manner, the defense attorney can reduce the risk of being in a sue first, ask questions later position.

2.         Create an institutional memory.

On occasion the party is involved in a series of cases where it is suing a series of other companies in dozens of similar, situations.  In the course of that process, the company has presumably gathered extensive documentation regarding the obligations or practices of its opponents. Organizing that information so the correct parties are sued saves both sides considerable time and expense.   Organizing information does not mean cutting and pasting from a prior document.  It means actually reading and analyzing the applicable documents and then preparing an index, summary or matrix that captures the work product and facilitates future decision making. 

3.         Fix mistakes; don’t perpetuate them.

Mistakes are inevitable.  Without them, we attorneys would be unemployed.  When they happen, fix them immediately.  Do not put them aside to be dealt with “later.”  The cut and paste features of word processing software are wonderful tools to speed document creation, but they also make it very easy to perpetuate a mistake over and over again.  If cut and paste is used, print the new document and read it line by line in the context of the current matter to identify and fix inappropriate uses of cut and paste. 

4.         Identify and gather information promptly.

Rule 11 gives the attorney a “reasonable opportunity” for further investigation and discovery.  Take that opportunity.  Don’t put it off until later.  You don’t want a reputation as a “sue first, ask questions later” lawyer.  Prompt investigation and prompt correction of erroneous allegations, or dismissal of erroneously named parties will protect your reputation.  

Why Defense Lawyers Should Care About Social Media-Part 2

In Part 1, we discussed the mob rule aspects of social media.  Not long afterwards, an interesting article in appeared in the New York Times on that very subject.  It discussed how those with the ability to quiet an on-line mob often fail to do so.  In Part 2 we focus on what the defense or corporate attorney can do to mitigate the harm resulting from social media criticism of the client or its defense strategy.

Usually, social media criticism can’t be stopped.  Efforts to stop that criticism are likely to inflame it instead.  What the defense or corporate attorney can do is be prepared for it.  In many ways the fundamental strategy is not appreciably different for social media than it is for traditional media.  The difference is social media is immediate and impatient.  There are no “news cycles” in social media. 


Preparation begins with risk assessment before the social media storm.  Is the case or situation one in which the client will be perceived as having disproportionate power, influence or wealth?  Can the client’s position be characterized as unfair, unjust or oppressive?  Is the justice of the client’s position difficult to explain in a sound bite?  If the answer to any of these questions is “yes,” there may be a significant risk.

The second part of risk assessment is to study the opponent.  Is the opponent articulate?  Appealing? Does he, she or it have powerful or influential friends or supporters?  Is there a history of social media commentary on the part of the opponent or its friends or supporters?  Does opposing counsel have a history of using the press or social media to advance his or her goals?  

Once the risk has been assessed, identify the available tools and assess their efficacy.  Many institutional clients centralize their public communications in corporate public relations or communication departments and forbid defense counsel, much less corporate counsel, from making public statements.  If the case presents a significant risk of adverse social media exposure, outside defense counsel should discuss this risk with the client at an early stage so appropriate internal alerts can be provided and the client’s communication department can be included in the planning process. 

In litigation, parties speak through their court filings.  When drafting  pleadings and motions, defense counsel needs to consider the risk that the content of the defendant’s pleadings will be quoted out of context by individuals lacking in legal training.  One feature of social media is out of context statements develop lives of their own.  Once disseminated in social media, they are difficult to explain, clarify or correct.  When feasible, it’s beneficial to draft pleadings that won’t provide the “twitterverse” and bloggers with material. 

The third step in preparation is planning the response in the event there is social media criticism.  Not all social media criticism deserves a response, but a response strategy should be considered before the criticism surfaces.  Usually the lawyer won’t be the conduit for the response, but the lawyer who has a coherent and considered response strategy will be more valuable to the client at a time when action may need to be swift and well thought out. 

After preparation comes monitoring.  Social Media criticism builds quickly and the defendant needs as much notice of that criticism as is feasible.  Institutional clients with corporate communications and social media presences often already monitor social media for references to the client.  Other clients do not have an institutional tool available.  In those circumstances, defense counsel needs to take action.  The available tools are evolving continuously and what works today may be passé tomorrow.  Available options include Google Alert e-mails (setting an alert in Google for new mentions of the client, the opponent or the incident that gave rise to the lawsuit), or manually monitoring the opponent’s Twitter account without officially following that account.  There are apps and webpages designed to automate this process, but the author has not used them and cannot comment on their utility. 

The bottom line is defense lawyers cannot ignore social media.  It can be as dangerous, if not more dangerous to the client as traditional press coverage, only without the professional and ethics standards to which the mainstream press aspires.  

Why Defense Lawyers Should Care About Social Media, Part 1

Over the past several years, the use of social media has expanded dramatically to the point where it now can have a significant impact on business decisions, corporate public relations and how litigants are perceived.  For those reasons, defense lawyers need to be social media aware.

Being social media aware isn’t confined to using social media for marketing or personal purposes.  It includes being aware of the impact social media has on the public discourse and the public perception of the defense attorney’s clients.  The defense lawyer should think of social media as a untraditional crowed-sourced form of journalism not necessarily subject to the professional standards of traditional print and broadcast journalism.  Blogs, including this one, are a form of social media. So too is Twitter, BuzzFeed, Facebook, Instagram and the like.  And, other forms of social media are being invented continuously.  Have you hear of Pheed, a tool for people to monetize their posts?  I hadn’t until I researched this post.  Thumb, a crowd sourced decision making application?  Path?  Not all have “journalistic” uses today, but then, neither did Twitter initially. 

The untraditional, crowd-sourced (or less politely, mob) aspects of social media make it particularly challenging for civil defendants and corporations because they can create a surge of public and consumer opinion that influence corporate or litigation decisions.  For example, just this last weekend a woman in corporate communications lost her job for sending a racially and socially insensitive tweet just before boarding a flight to South Africa.  By the time her flight landed and she was once again connected, it was too late because her tweet had been widely circulated and discussed.  Indeed a hashtag regarding her location was one of the top trending items on Twitter and parody accounts for her appeared even before she landed.  Similar issues affected an insurance company defending an underinsured motorist claim when the deceased’s sibling accused her insurer of “defending her killer” in court.

While it’s easy to discount last week’s incident as the product of poor decision making, agitating the social media world doesn’t require poor decision making – the party simply needs to be in the wrong place at the wrong time.  Defendants and corporations can’t eliminate all social media risk but defense attorneys and corporate counsel need to be attuned to how a particular dispute could play out in the social media arena in order to avoid increasing the risk of adverse social media exposure.

Next up:  A few social media management ideas.  

Managing Ethical Risks Part 11

Finally, familiarity and complacency cause lawyers to mistreat those closest to them. People tend to treat those with whom they are in close relationships worse than they treat others. We see examples of this everyday in our families, in public, and in business settings. A child or spouse may speak to us in a way that they would never speak to one of their friends.  A first date gets dinner and a movie; a fourth anniversary may get a, "oh yeah, happy anniversary." A person that we have hired to perform a service may do so slower than promised, miss appointments, or otherwise behave in unsatisfactory ways that they would never reveal to a person who is considering hiring them, but has not yet done so. At work, people that work together closely may speak to each other in ways that they would never speak to other employees with whom they do not have a close a relationship.


The reasons behind this dynamic are probably as numerous as the experiences themselves. However, a common denominator is that people tend to take close relationships, and the people with whom they have them, for granted. They believe that they can count on such a person to stick around even if they are not giving them their best game.

Lawyers and clients with long-standing relationships are not immune to this dynamic. A lawyer with an urgent message from an existing client and a potential new client may return the latter's call first, taking for granted the existing client will understand. A client with too much to do may defer getting discovery responses back to a long-standing lawyer in favor of other projects, because he or she knows that the lawyer will understand and the client can count on a lawyer to get the work done even if left with little time to do it. Lawyers may find themselves placing a long-standing, “comfortable” client's work in a position of lower priority than that of a new client that the lawyer wants to impress.

In the attorney-client context, one can never tell whether a given manifestation of this dynamic will (i) have no consequence, (ii) sour but not sever a relationship, (iii) result in the loss of that relationship, or (iv) produce an unanticipated harm that may give rise to a malpractice claim.  From every perspective, not just a risk management perspective, it makes sense for a lawyer to be vigilant about treating long-standing clients with as much enthusiasm and with as high a degree of service as the lawyer would treat a new client that the lawyer is still trying to impress.

Comply with Federal and State Asbestos Regulations

"What Cleaning and Restoration Professionals Need to Know to Comply with Federal and State Asbestos Regulations"

Even as the use of asbestos in new materials has waned since the 1970s, it remains in countless products, buildings and materials. To protect employees from health hazards and to avoid potential civil liability and criminal penalties, everyone involved in the cleaning and restoration industry should be aware of the prevalence of asbestos at job sites.

The rules related to restoring a building containing asbestos are complicated and differ depending on a jobsite’s location. Contractors should familiarize themselves with the relevant laws and the specific local enforcement policies for a jobsite before engaging in such work.

The Environmental Protection Agency (EPA) and the U.S. Consumer Product Safety Commission have banned several asbestos products, and many manufacturers have since voluntarily limited the use of asbestos. Nevertheless, it remains present throughout the country, particularly in buildings constructed before 1980. It is commonly found in insulation, floor tiles, ceiling tiles, roofing, paints and coating materials, fireproofing, and many other materials.

Products can contain widely varying concentrations of asbestos, ranging from 100 percent to trace amounts. Products with less than one percent of asbestos generally are not treated as asbestos for regulatory purposes.

In the past few decades, federal and state governments have enacted complicated regulatory regimes by which asbestos abatement is governed. Everyone in the cleaning and restoration industry should understand and comply with these rules or be prepared to face significant fines, civil liability and even criminal penalties. Before starting a project that might disturb asbestos, company owners and managers must be familiar with the full range of federal and state (and even local) regulations that govern licensing, certification, notification, worker safety, and disposal.

The federal government regulates asbestos exposure in buildings chiefly through two agencies, the Occupational Safety and Health Administration (OSHA) and the EPA. OSHA sets standards for worker protection involving construction, including the renovation or demolition of buildings, while the EPA sets broader standards to protect workers and the environment from asbestos. Restoration contractors need to comply with regulations promulgated by both agencies when working at a job site where that asbestos-containing material (ACM) may be present.

In addition to federal asbestos requirements under OSHA and the EPA, contractors must consider often-overlapping requirements at the state level. Each state has its own rules, and asbestos-related regulations can differ significantly. Contractors must review the laws of the state where the job site is located and determine what regulations apply.

The legal system is no substitute for the training, diligence and integrity needed to ensure that asbestos health hazards are properly handled. Before engaging in any work that could impact asbestos, it is important to understand the specific scope of the work to be performed, the governmental regulations that apply to your business and the applicable industry standards of care.

Consult with licensed asbestos professionals to ensure compliance with the applicable regulations. Most importantly, take the necessary steps to protect workers, as well as yourself, and be sure to comply with the restoration industry’s code of ethics.

(This post was adapted from a two-part article in Cleaning & Restoration magazine.  Authored by David M. Governo and Colin N. Holmes, Part 1 originally appeared in the March/April 2014 issue and Part 2 appeared in the May 2014 issue.)

Managing Ethical Risks Part 10

Familiarity and complacency makes lawyers chatty.

The more you know about something, and the longer you know it, the more a part of you it becomes. The more a part of you something becomes, the more likely it is to find its way into ordinary conversation and other communications. In the legal community, this can happen with respect to information about clients of whom a lawyer is particularly proud, details of particularly interesting matters, or circumstances that produced an exceptional result.


Lawyers generally are "on guard" about protecting the attorney-client and work product privileges, but many do not understand – much less honor – their entirely separate and broader obligation to treat as confidential all information relating to a representation, regardless of whether that information is also "privileged." The nature and scope of this obligation is described in Rule 1.6:


Rule 1.6 Confidentiality Of Information


(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).


(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:


(1) to prevent reasonably certain death or substantial bodily harm;


(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;


(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;


(4) to secure legal advice about the lawyer's compliance with these Rules;


(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or


(6) to comply with other law or a court order.




[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.


A lawyer that obtained a great result for a client in a matter may nonetheless face a malpractice claim if the lawyer improperly divulges information relating to the representation that somehow harms the client. The ways in which this may happen are limited only by the limits of one's imagination.


Next: Mistreating Those Closest

Managing Ethical Risks Part 9

Familiarity and complacency cause lawyers to take on matters they are not competent to handle. Rule 1.1 describes the ethical considerations associated with deciding what matters to undertake, or not.

Lawyers do not like to give their competitors the opportunity to get their foot in the door, and possibly "steal" a client.  This is especially true with respect to valued, long-standing clients. So, when a good client calls with a matter that is out of the lawyer's and his firm's typical areas of practice, some lawyers agree to handle the matter when they are really not competent to do so, rather than refer the client to another lawyer.

For their part, clients have a role in this process as well. Clients with long-standing relationships with their lawyers become comfortable with them, their level of service, their billing practices, and their staff. All things being equal, they may (understandably) prefer to have their usual counsel handle an unusual matter, rather than take a chance on an unknown quantity in the form of new counsel. So, they may encourage their long-standing counsel to represent them in a matter that is outside the lawyer's typical areas of practice, and even agree to pay the cost of the lawyer "getting up to speed" in this new area.

Whether the lawyer should agree to handle the unusual matter under these circumstances is a judgment call that depends on a number of factors, discussed below. Ultimately, however, the risk to the attorney is that he or she will make a mistake that an attorney experienced in that area of practice would not: missing an important case, statute, regulation, issue, defense, approach, or strategy.

In the immortal words of a lawyer with whom I once practiced, "The law is some tricky s__t.” In my own, practicing law is hard even when it’s easy.  It is hard enough to play error-free ball when you know the rules of the game you are playing. It's much harder in a new and unfamiliar game that you are trying to learn as you go. When considering the following ethical guidelines for deciding whether to take on a matter in an unfamiliar area of practice, a lawyer would be well advised to err on the side of referring the client to a lawyer that is unquestionably competent to handle it.

Next: Being Chatty

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