The Golden Rule of Intake: Don't Be a Fool and Don't Be Foolish

Intake is one of the most important stages of litigation (not to mention your cash-flow).  For every call that comes in, keep this two-part rule in mind:  Don’t be a fool and don’t be foolish. 

A fool is someone who promises to help when he cannot.  A foolish person turns his nose up at people who think highly enough of him to ask for help in a time of need.  Your most powerful marketing tool is leaving everyone who you speak to with a sense of dignity.  Listen carefully to what a potential client has to say, be truthful about what you can do and what you cannot do, and be respectful.  

5 Rules for Lawyers to Live By

I recently put in my two cents about what it means to be a "successful" courtroom lawyer.  If you follow those principles, you will feel good about what what you do.  Here's five rules to be good at what you do.

Rule #1:  Know the Law

Wow!  So basic, yet so easy to forget.  At the outset of a case, you'll have a pretty good idea of where it's going to go and what the central legal issues will be.  Attack those issues before you do anything else.  If the case will turn on the construction of a statute, get the relevant cases, legislative history, and administrative materials and fully develop your argument on paper.  Don't just read and think, read and write.  Preferably, you want a draft memo to the file that responds to the likely arguments your opponent will raise.  At the least, put together a bullet point outline.  This will not only get the pretrial motion stage off to a fast start, it will help you gauge which legal issues you will want to put in front of the court and which issues ought to be left out.

Rule #2:  Know the Facts

Another basic concept.  The starting point in every case is the story your client gives you.  Take the essential facts from your client's story and put them in a numbered list (like paragraphs of a complaint).  For each numbered item, use your client's records, public records, witness statements, and other evidence you have to confirm or negate your client's story.  This will help you quickly identify which issues will be contested at trial and how you should allocate your resources during discovery.

Rule #3:  Know Your Audience

It is certainly possible to frame a case in language that every audience is capable of understanding.  Start from there, but then tailor it to the decision-maker's world.  This will help you build both empathy and credibility with your audience.   For example, if it's a jury, then from day one start figuring out how to explain your case in language that a jury wants to hear.  Is this a case about a "breaching fiduciary duties to shareholders" or a case about "lying to the people who trusted you?"  If the case is going before an ALJ, don't call the agency a "monster" or say it acted "egregiously," say the agency "exceeded its statutory authority" or "did not act in accordance with the law."  For a judge, know what areas of law the judge knows and doesn't know and incorporate buzzwords where appropriate.

Rule #4:  Know Your Client

This does not mean know the facts.  This means know who your client is.  What does your client do for a living?  Married?  How many kids?  What is likable about your client?  What type of person is going to relate to your client?  What type of person is going to dislike your client?  Most importantly, how are you going to build a trusting relationship with this client and how are you going to make the judge or jury do the same?

Rule #5:  Know Yourself 

Last, you know what you can do, what you might be able to do, and what you can't do.  Only make promises that you can keep and keep your promises.  This not only builds trust with your client, but also credibility with the court and respect from your opponent.

The Courtroom Lawyer: Defining Success, Part 3 of 3

Now we get to the last element of a successful courtroom lawyer:  presenting evidence in the best possible manner.  No surprise here--there is no blog post or book that will help you master this element.  Only practice, practice, practice can take you to the next level.

I wish it were easier, but at least the concept of being successful in the courtroom is simple to understand:

1.  Moral Foundation - you need to find something redeeming about your client.
2.  The Best Evidence Available Rule - you need to find the best evidence you can, based on the resources available.
3.  Present the Evidence in the Best Possible Manner - Think hard, think about your audience, and work with what you got.  Give it your best and whatever happens, know you did your best.

That's success in the courtroom in a nutshell.

Updated Form for Standard Deposition Questions to Records Custodian

In light of some recent traffic to my post on Depositions on Written Questions of Records Custodian, I thought I would post an updated version of the form, complete with the introductory portions.  Note that this form is meant for Texas civil cases - your guess is as good as mine if it works for other states.

-Updated Form for Deposition on Written Questions of Records Custodian
-Form for Witness Fee Invoice

The Courtroom Lawyer: Defining Success, Part 2 of 3

In part I, we listed the three essential elements of being a good courtroom lawyer and examined the moral foundation element in detail.  Here's part 2 - 

The “Best Evidence” Available Rule - Working Backwards 

The second essential element for success in the courtroom is the evidence you present.  A trial is nothing more than a competition of evidence.  The better your evidence is, the more likely you will achieve a successful result. 

Success in the courtroom, therefore, is in part ministerial:  find the best evidence available and let it speak for itself.  This is easier said than done.  Your litigation budget will dictate what evidence will be “available” at trial more than anything else.  Nonetheless, nothing should prevent you from identifying what evidence could be available, if you had an unlimited litigation budget.  From there, you can work backwards to determine what evidence will likely be available at trial.  And from there, you will have identified what you need to do to succeed.  Go find it and let it speak for itself!  

The Courtroom Lawyer: Defining Success, Part 1 of 3

Have you ever thought about what it is that you do in court?  In other words, if someone asked you, what your essential job duties are, what would you say.  Here's my take (Part 1 of 3), adapted from a practice manual I'm working on:   

Defining Success in the Courtroom:  3 Essential Elements 

A new client is scheduled to arrive at your office today for his initial consultation.  You know the case will likely end up in court and you will likely be the lawyer standing up in court on his behalf.  What defines whether you will be a good courtroom lawyer or a bad one?  Is it the settlement or the verdict?  Is it how cheaply you reach a binding resolution?  Is it how much revenue you produce for your firm? 

Make no mistake, numbers have nothing to do with being a successful courtroom lawyer.  Success in the courtroom contains three essential elements: 

1.  having a moral foundation;

2.  having the best evidence available; and

3.  presenting the evidence in the best possible manner.  

Element 1:  Having a Moral Foundation

In simple terms, having a moral foundation means being able to walk into the courtroom with your head held high.  It means presenting something to the judge or jury without being afraid you will be perceived as greedy, dumb, or arrogant. 

A moral foundation begins with your client.  To have it, you must fully appreciate what it is your client wants.  Does your client want the most money possible?  Or does your client want to make sure he has enough money to allow his children to go to college?  Does your client want the benefit of a hard-earned contract?  Or does your client want to embarrass its competitor through litigation?  

We can all appreciate why having a moral foundation is important.  But why is it essential to success in the courtroom?  It is essential because the law is not a mathematical formula capable of precise outcomes.  At its root are the people who apply it – judges, juries, administrative agencies, local government boards, and of course lawyers – all of whom are smothered with political bias, moodiness, and every other aspect of human imperfection.   Despite their inherent prejudices, at the end of the day these decision-makers will try to reach the right result – a moral result.   To be successful in the courtroom, therefore, you must walk into court with a moral foundation.   If you can't find one, you shouldn't bother taking the case.  

Standard Written Deposition Questions to Records Custodian

Updated - See Below

Every so often (like 99.9% of the time), documents actually do rule the day. Proving up a document's chain of custody (i.e., authenticating it) can be a mess during a live proceeding, especially if they originate from a non-party. Authentication can be especially tough if you've got someone on the other side that's decided to let his or her case stand and fall on the technical components of evidence law--i.e., the other side's case totally sucks.

How do you avoid objections to the authenticity of documents obtained from non-parties? Despite what many may tell you, Business Records Affidavits are not fool-proof. Depositions on Written Questions to non-party "Records Custodians," on the other hand, are about as close to fool-proof as you can get without calling the ghost of Johannes Gutenberg to testify.

Rules 200 and 176 of the Texas Rules of Civil Procedure govern Depositions on Written Questions. What I find likable about these official looking documents is that if you set up your forms correctly, you can send them en masse without actually using your brain.

Using Rules 803(6)-(10) and 902 of the Texas Rules of Evidence, I've tried to develop a standard set of direct examination questions for Records Custodians. You can use, modify, and share these questions by accessing this link or the one at the bottom of this post (just use at your own risk and don't be a jackass if something goes wrong).

Instead of quoting the statute, I've tried to phrase the necessary authenticity questions in a way that's more akin to the way someone other than a 1920s speakeasy patron would ask them. (Who wrote these statutes anyway?) Regardless of how you ask the questions, my experience has been that most Records Custodians are used to getting served with these types of discovery requests and do a fairly good job responding. Note, however, the box-checking and fill-in-the-blank format--I've found those features to be helpful.

Standard Direct Questions for Deposition on Written Questions to Records Custodian

Note - Form has been updated here: http://palsgrafexpress.blogspot.com/2013/01/updated-form-for-deposition-on-written.html