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Less is More

I’m back on the speaking circuit after a hiatus due to serving as the Program Chair for last summer’s FDCC Annual meeting.  And, that’s reminded me of a number of useful tips for preparing PowerPoint or Keynote presentations for use in those presentations.

 

1.         Less is More

 

You don’t need 25-50 slides.  Your audience is there to listen to you, not read your slides.  Slides illustrate.  Slides remind the audience (and you) where you are.  For a 30 minute presentation in November, we used seven slides, not counting the title slide – two were video clips.  For another program last month had four substantive slides for about 30 minutes allocated to two speakers.  At the Winter Meeting, the presentation I’m participating in currently has five “substantive” slides.

 

As Steve Jobs said:

 

“Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it’s worth it in the end because once you get there, you can move mountains.” 

 

2.         Case and Policy Quotes Belong in the Paper, not the Slides

 

There are few things as deadly as trying to read 12-16 point type on a slide projected on a screen 50 feet away from the viewer.  Don’t quote the policy or cases in your slides.  It’s acceptable to post case citations – that can help the audience write them down, but quotes should be left in the written materials. 

 

3.         Write it Yourself; Don’t Have Your Assistant or Paralegal Write It

 

Too many of us delegate presentation writing to our assistants, a paralegal, or our firm’s marketing department.  Do it yourself.  If you don’t know how, learn.  PowerPoint is not that difficult (and your staff can take care of the more technical aspects after you write it), and Apple’s Keynote is even easier.  The problem with presentations drafted by others is they are not your presentation. They tend to be mechanical summaries of the paper.  They do not flow with your speaking style as well as they should. 

 

4.         Avoid Gratuitous Graphics.

 

Google initially achieved fame because it used a plain white screen, not the overly busy screen used by Yahoo and other long-vanquished competitors (anyone remember Alta Vista?).  Just because something is there, does not mean you have to use it. 

 

Microsoft has infected PowerPoint with a dozens of clip art illustrations, dozens of stock photos and the like.  Don’t use them simply because they are there.  Use illustrations and graphics to make a point.

 

5.         Test, Test, Test.

 

Test your presentation.  Don’t just test it in your office.  Test it where you’ll be giving the presentation on the equipment you will use.  Do you have video or audio?  Did you know there is more than one way to embed video and audio in a PowerPoint?  Did you know one of those ways doesn’t work when you move the presentation to a different computer?  Do you know whether your video is set to start on the slide transition, or whether it requires a second click? 

 

You are giving a presentation to share your knowledge and improve your professional reputation.  “Technical difficulties” during your speech defeat both goals. 

 

6.         Follow the Wisdom of the Military.

 

Several years ago an Army General became famous for banning PowerPoint in briefings in his command.  As one Marine General said, “PowerPoint makes us stupid.”    If you wish to read more, consider these articles:

 

https://www.psychologytoday.com/blog/am-i-right/201403/powerpoint-makes-you-stupid

 

http://www.pcworld.com/article/195081/powerpoint_makes_you_stupid_says_military_intel.html

 

7.         Stay on Time.

 

Finally, one tip that isn’t directly computer presentation related.  If you are given a specified time for your presentation, nail that time.  Don’t go over.  Don’t go appreciably under.  Don’t stuff 45 minutes of material into a 30 minute presentation so you have to talk at 300 words per minute.  If you want to be invited back by conference organizers, stay on time.  

How do you stay on time?  Rehearse.  Time yourself.  Write your presentation so you can invisibly modify the depth of your discussion on the fly.  

New Years Resolution - Your Reputation Matters

I don’t make New Year’s Resolutions in the traditional sense.  I simply won’t live up to them.  However, the advent of a new year provides an opportunity to look at opportunities you may not have taken advantage of in the past.

 

Do you have more work than you and your colleagues can do?  I doubt it. 

 

So, how do you get more work?  It’s very simple.  Be the person the client is thinking of when something happens that causes them to decide they need to hire counsel.  And, be the person that the client can justify choosing when discussing the retention with management.

 

There are lots of ways to reach that goal.  First and foremost is good lawyering.  The rest of this post, however, is going to focus on improving your professional reputation with clients, opponents and the courts:

  • Do they know who you are?
  • Is your word good?
  • Do you fight tenaciously but fairly?
  • Are you sensitive to their needs and interests?
  • Have you developed a verifiable expertise?

 

Most of us tell our witnesses to always assume that they are being observed by jurors or prospective jurors when they are within walking distance of the courthouse.  The same rule applies to us – we must assume we are being observed by clients, other attorneys, including opposing counsel, and judges in everything we do as lawyers.  It only takes one bad experience, or one misunderstanding, to turn a client, another lawyer or a judge against you. 

 

A now retired judge in one of the jurisdictions in which I practice was notorious for deciding cases based upon initial impressions of the lawyers and parties.  The side where the lawyer, or sometimes, the client, was perceived as a (ahem) “jerk” was very likely to lose.  While I doubt the judge’s mental formulation was “Who’s the _______?” it certainly appeared that way. 

 

Lawyers engage in reputation-harming conduct both consciously and unconsciously.  The conscious is easy to avoid – no matter what the temptation, don’t lie, don’t cover things up, don’t disregard instructions and don’t practice in areas for which you are unqualified without educating yourself first (at your expense, not the client’s). 

 

Avoiding unconscious reputation-harming conduct requires more effort, but it’s readily achievable.  First, don’t make a representation you can’t support and abide by.  “I don’t know” or “I’m not certain and need to make some inquiries” are better responses than optimistic guesses.  Better yet, anticipate the questions, make the inquires and be prepared for questions.

 

Second, avoid cuteness and dirty tricks.  If it sounds too clever, it probably is. 

 

Third, do you understand what your client really needs?  What does “victory” look like from the client’s perspective?  Does your client need regular reporting even if nothing is happening?  What are the consequences of exceeding a budget?  Do they need to be alerted to possibilities before there is bad news?  Are there bigger picture business considerations for the client that can be affected by how a matter is handled, such that how the matter is handled is more important than its ultimate outcome? 

 

Finally, verifiable expertise.  Do you belong to organizations, whether the FDCC or others, which have admissions standards that serve as a form of verification?  Do you write or speak on the topic, such that other lawyers or clients may cite or forward your publications or presentations?  Have you sought specialty certification from your state bar, if it is available?  Do other lawyers turn to you for advice?  If your answer to each of these questions is “no,” you can’t build that expertise overnight, but you can start this year.  The lowest barrier to entry is to write something.  Legal publications, whether from your local bar association or national legal and professional organizations are always in need of written content.  Remember a submission may be rejected, not because it is poorly written, but because it doesn’t fit the needs of the particular publication to which it was submitted.  Try someplace else.  If all else fails, do what I’m doing now – turn your publication into a series of short blog posts and submit it, either on the FDCC blog, if you’re a member, on your firm’s blog, if it has one, or on another blog that accepts outside submissions; many do. 

 

Take the first step towards building your reputation.  It’s the best professional New Year’s Resolution you can make.  

Sleep on It

We’ve all dealt with opponents, and occasionally clients, who suffer from Keyboard Jerk Syndrome.  While they are often charming, personable and reasonable in face to face interaction, put them behind a keyboard and they lose that charm, that reasonableness and become difficult, confrontational and accusatory. 

 

It’s easy and quite emotionally satisfying to reply in kind, sending the e-mail equivalent of the universal road rage hand gesture.  It’s also a really bad idea.  E-mail encourages immediate responses.  It also is more casual and conversational in tone.  But, like the letters our predecessors sent, it lives a long time. 

 

So, how do you deal with Keyboard Jerk Syndrome without succumbing to it yourself? 

 

1.         It the message you received makes you mad, don’t write when you’re mad.  Wait.  My rule of thumb is to wait until the next day.  There is no rule of court, statute, or other requirement that everything be responded to immediately.  Take your time, because what you are drafting could well end up as an Exhibit to a motion, or even a trial exhibit. 

 

2.         If you have an emotional need to draft the “Jane, you ignorant slut” (https://www.youtube.com/watch?v=viYuzuJom1k) response leave the address and cc fields blank.  That way you won’t send it by accident.  Once you’ve vented, delete it.  Or, at a minimum leave it for the next day – you’ll be more calm and it won’t look very good. 

 

3.         Ask yourself, “Do I want a judge or jury to read this e-mail?” 

 

Stay calm.  It pays huge dividends.  

Insert Your Name Here and Share Your Expertise

Any Federation Member can contribute to this blog.  It’s easy and it’s a wonderful opportunity to increase your visibility. 

Studies indicate that professional visibility is a critical component of marketing and that writing is an excellent way to increase professional visibility.  No travel is necessary.  It can be done in your “spare” time, and it exposes you to people you’ve never met.

“But I have nothing to say.”  Hogwash.  How much time do you spend training and mentoring the less experienced lawyers in your firm?  Take one or two topics you discuss with those lawyers and turn them into a blog post.  Is there a recent case or procedural development in your state or practice area?  There are more subjects for discussion than any of us have time to write about.

“But, I’m not a tech person.”  Neither am I.  I’m a 57 year old lawyer with eye-rolling teenaged children.   Write something.  Then log into the website on the member side and select “Member Services” at the right end of the menu bar.  A row of tabs will appear.  The fifth one from the left (today) is “Submit a Blog Entry”  Give it a title.  Tell us whether it is Practice Tips (like this) or Substantive Law.  Paste the content into the big content window. Press the add entry button.  You’re done.  The FDCC staff will review it for appropriateness, and will then put it in a queue to be posted.  

New Years Resolutions for Associates: Part 3: Building Your Community

As a new lawyer, I found marketing utterly mystifying.  How was I supposed to approach a complete stranger, usually much older than me, and ask them to entrust me with their legal work?  The answer is you don’t.  Cold calling is not a viable strategy.

 

Instead, build your network, one person at a time. The people who will be sending you business in 10 to 20 years are your peers today.  To that end, consider the following:

 

1.         Everyone counts.  Your assistant, your receptionist, the person who cuts your hair, your neighbor, the parents of your children’s classmates.  You never know when that person will end up in a position where they can influence who gets legal work, even if they do not presently work in an industry you are targeting.  A good way to develop this skill is to assess how you treat the staff in your firm – do you treat them the same way you treat the senior partner?  If not, you should.  Do not be blinded by hierarchy. 

 

2.         Show genuine interest in people as individuals, don’t hustle them.  It will take time, but if they get to know you and trust you, good things may follow.  If they don’t know you or trust you, nothing will follow.  Buy and read Dale Carnegie’s How to Win Friends and Influence People (http://amzn.to/1B1vZRg).  It’s culturally dated, but still relevant today. 

 

3.         Stay on their radar.  Several years ago my firm switched to electronic holiday cards.  I hate them, and some of my colleagues feel similarly and simply don’t bother to send them anymore, but I still do.  And, every year I get back anywhere from 10 to 30 e-mails thanking me and checking in – work may not follow, but at least they are thinking of me.  If they are not thinking of me, I’ll never get work from them.  Staying on the contact’s radar means more than holiday cards.  If you see a case or article that would interest them, shoot them a copy with a personal note.  Do it individually, not to a string of bcc’s. 

 

4.         Build and maintain your contact list.  Whether it’s Outlook, a paper Rolodex, or enterprise CRM software, make it a habit the first time you cross someone’s path to enter and save their contact information.  Use that information with restraint and don’t be a pest while you stay visible. 

 

5.         Do something non-law related in your community.  You’ll feel better, and you’ll meet great long term contacts.  Whether its related to your children, a social or political cause, a participatory sports or outdoor activity, a church, the Chamber of Commerce, or otherwise, go spend time with people who share your interests but are not necessarily lawyers.  In short, get a life.  It will give you something to talk about with clients and prospective clients.

 

6.         Become active in a legal or insurance industry organization.  Whether it’s your local Bar Association or a national one, all these organizations are run by volunteers.  There are never enough volunteers to accomplish all the organization’s goals.  Don’t ask for a glory job at the outset; volunteer to do the most thankless job in the organization, do it well, and the prominent roles and the professional stature that accompanies them, will follow in short order. 

 

7.         Never burn your bridges.  No matter how unpleasant an interaction, stick to the high road, remain civil and professional, and don’t alienate the other person.  For all you know, some years from now, you may be addressing them as “Your Honor.”  Or, that person may be the new General Counsel or Vice President of Claims of a major client.  

New Years Resolutions for Associates: Part 2-Basic Quality Control

Lawyers learn early to produce quality substantive work product.  There is more to producing quality work, however, than ensuring the law cited is good law, and the document has been spell-checked. 

 

Here are five things every litigation attorney, young and old, should do:

 

1.         Proofread the pleading caption.  It’s amazing how often typographical errors appear in captions.  When I was in law school, I worked for a lawyer who had a case dismissed because of a typo in the case number on a required filing.  As they say in the satellite television commercials, “Don’t be that guy.” 

 

2.         Proofread the service list on a mail-served pleading.  Despite all the systems in place to capture changes, far too often address changes, new parties and new attorneys don’t make it into service\ lists, especially when they are simply pulled from the last filing the attorney or firm has made. 

 

3.         Proofread the “white noise” portions of correspondence – the address, the subject line and the cc or bcc recipients.  Again, these are often pulled from prior correspondence without any critical examination of what’s being said.

 

4.         Pause before you hit the “send” button.  This has two parts:

 

            a.         Read the addressees  line.  Many of us have our e-mail programs set to auto populate names and e-mail addresses after a couple of keystrokes.  Computers are dumb and if you are not careful, the auto populated name won’t be the intended recipient.  I probably get two to four misdirected e-mails a month where I need to notify the sender and delete them. 

 

            b.         If the e-mail to which you are responding is accusatory, insulting or otherwise provocative, save the draft and wait until tomorrow morning.  Nothing is gained by a hasty reply, and your brilliant ripostes will not look nearly as brilliant tomorrow morning.  Also, to borrow in concept from George Bernard Shaw, don’t wrestle with a pig, both of you will get dirty, but only the pig will have fun. 

 

5.         Think twice before using “reply all.”  Usually, it isn’t necessary. 

 

In Part 3:  Building Your Community

New Years Resolutions For Associates: Part 1-Understanding the Logistics of Litigation Practice

When I started practicing law, I was told “Lawyers don’t type.”  That didn’t last long – three years later, I was the office guinea pig for giving computers to lawyers.  My handwriting has deteriorated ever since. 

 

But, this isn’t about typing or computers.  Every lawyer needs to know how to perform the tasks usually performed in larger firms by support staff to transform the lawyer’s intellectual work product into an actual court filing.  Only by understanding the logistical demands of an actual filing can the attorney ensure he or she is giving the support staff what they need when they need it.

 

With that preface, here are four things every young litigation lawyer needs to have done at least once:

 

1.         Make a paper court filing at the clerk’s office, ideally one requiring the payment of filing fees (without billing the client for your time).

 

2.         Make an electronic court filing from start to finish, preferably one with multiple documents and exhibits..

 

3.         Perform the printing, copying, and mail service of a complex discovery or motion pleading (ideally, one including exhibits), including execution of the Certificate of Service. 

 

4.         Find a document in a litigation support database. 

 

Why?  First, some day the attorney may need to perform these acts when there is no available support staff.  Second, every one of these tasks takes longer than many of us expect.   Giving the staff the necessary lead time is essential and there is no better way to learn how long these tasks take, and what obstacles may surface in the process, than doing it yourself. 

 

In Part 2:  Quality Control

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. 

 

KISS

 

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. 

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