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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” ( 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 (  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. 




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.  

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