Oregon State Bar Bulletin JUNE 2013
After representing clients in litigation or potential litigation for many years, and after over two decades as a full-time mediator and arbitrator (the last few years, as mediator only), I have collected what I think are the major mistakes made by some lawyers in civil litigation practice — whether a case is at the pre-filing stage, a court action or in arbitration or mediation. Some may be common-sense and generally recognized though worth repeating, but some may be controversial.
Failing to Communicate Willingness and Ability to Try the Case
If you are going to effectively represent clients in contested matters, you need to develop the reputation of being willing and able to go to trial or arbitration hearing. While some of my fellow mediators may disagree, I believe that too many cases are settled. Of course, your client deserves your best efforts to achieve a reasonable resolution, without incurring (indeed, often suffering) the delay, emotional distress, expense and uncertainty of result of the litigation process. Most cases can and should be settled, but not due to lack of preparation, belated case evaluation, lack of early candor with the client or plain fear of trying the case.
You can be sure that your opponent knows or will research your reputation for going to trial and especially whether you are known to give in “on the courthouse steps” — or as it often happens, at 4:30 pm the day before the trial or hearing. This is just the kind of evaluation I regularly hear, in confidence, in mediations.
The problem these days for newer lawyers is acquiring experience in appearing before judges, juries and arbitrators. While civil trials are down, which is a real concern, there are more opportunities than in years past to present cases in arbitration, both court-annexed and private. The Oregon New Lawyers Division has an excellent Practical Skills program that has placed volunteer lawyers in organizations that send the participants to court. I wish the law schools would do more to teach practice skills of all kinds.
Failing to Appreciate the Importance of Appearances and Image
Appearances do matter. Wear business attire when with clients, and clean your desk.
Professional Appearance. Some of our colleagues — and I’ll go out on a limb here and say that these are almost always our brother lawyers rather than our sister lawyers — fail to dress and groom themselves in a way that will elicit client confidence. I’m not saying that I am happy about this requirement; in my fantasy world, I would wear jeans and t-shirts to every mediation. Unfortunately, however, the public expects us to look like lawyers. With deference, of course, to cultural and religious preferences, and to individual gender identity issues, male lawyers in general should wear business suits and ties at work and tame unkempt hair.
Organized Workspace. I have seen probably thousands of lawyer offices during mediation conferences or while I walk down the hallways of law firms, large and small. A significant number of those offices and desks appear to be disaster areas. You know what I mean — piles of loose papers on the floor and on the desk, haphazard assemblages of files everywhere, piles of pink message slips and random assortments of yellow sticky notes on the desk, phone and computer monitor.
Some lawyers say that they know where everything is in such chaos, but I don’t think that is always true.
Imagine what your clients think, if they meet with you in such an office rather than in a conference room. Imagine what you would think — about confidentiality and control of work and deadlines — if your accountant’s office looked like that.
A litigation lawyer needs to be in control of his or her time and information and appear to be in control. The key is planning ahead, through digital or other means, thereby knowing what requires your attention on a given day — and to be able to immediately access other data when the inevitable surprises and challenges arise.
For most lawyers, the fully digital and paperless office is in the future. In the meantime, organize the paper.
Failing to Simplify
When the time comes to serve a pleading or present a case, keep it short and simple (to the extent that the case reasonably permits). Sophisticated and learned audiences — that is, most judges and arbitrators — are busy, and even they do not have unlimited attention spans. Jurors, most of whom I believe try to do the right thing, need your help in understanding why your client deserves to win, but you need to convince them quickly. Jurors do not appreciate being made to sit in uncomfortable chairs and being forced to listen to interminable examinations that go nowhere, followed by argument that takes seemingly forever to get to the point.
The job of litigation counsel is to thoroughly investigate the facts of a case, study the law and then present a compelling story. I started to learn this lesson when as a new associate, I drafted (and was quite proud of) a 20-page or so motion brief to be filed in U.S. District Court. It was replete with references to the record, cogent discussions of the legal authority (all directly in point, I want you to know) and ended with a blockbuster three or four sentence “Conclusion” section that neatly tied it all together, showing that the facts and law compelled the result I was seeking. The partner who assigned me the work looked over the draft, changed a word or two, and said it was ready to file — with one major change. He had me move the “Conclusion” to the beginning of the document, and call it “Introduction.” He was exactly right. It took me 20 pages and many hours of thinking and work to distill the case down to its persuasive essence. The judge now knew what my client wanted and why, within moments of picking up the brief. The rest of the brief was important and well written, but I was on a roll in the first page. (I don’t remember if my client won the motion, but I do know that I did my job.)
Advocates should develop the confidence to avoid presentations that cover every conceivable claim or defense. For example, if you have a good statutory claim (often allowing recovery of attorney fees), why also allege questionable common law claims (with the same damages and no right to attorney fees)? Why serve answers with 20 “shotgun” affirmative defenses, most of which will never be tried? Don’t neglect to allege a possibly applicable waivable defense, such as statute of limitations, but there will usually be plenty of time to amend an answer to add substantive defenses after investigation, discovery or further analysis. That way, when the judge reads your answer, he or she knows that you are serious about the defenses you allege and are not just being overcautious.
Not Trying to Improve Witness Examination Skills
Some lawyers who are coherent, clear and who move along at an interesting pace in private conversations and in confidential caucuses in mediation, and even during oral argument to judges and arbitrators, for some reason become halting and stilted when examining witnesses. I have noticed this pattern in many cases that I heard as arbitrator.
Read a transcript. Even better, view a video of a deposition you conducted, or ask a trusted colleague (or a nonlawyer friend) to critique your work. See if you do any of the following:
Taking too long to get to the point.
Going on way too long.
Unnatural circumlocutions. (“What, if anything, happened next”?)
Giving foolish instructions. (“In your own words, what did you see?”)
Saying “OK” after each answer. (Very common practice, and very distracting.)
Asking overly long, often incomprehensible questions.
Pausing too long between each question. (You lose your audience and seem unprepared.)
Using legalese or “big words.”
Speaking too softly.
Speaking too loudly.
Not varying tone of voice or loudness.
Using the passive voice. (It’s better to ask, “What did she say next,” rather than “what was said next”?)
Asking questions that require the skill of a mind reader, even if no objection is elicited. (“What did he mean?” or “Did she understand what you were saying?”)
Conducting cross-examination that accomplishes nothing.
Sounding like Hamilton Burger, the prosecutor in the Perry Mason TV series. (“I show you Exhibit A, and I ask you if that is your signature.”)
Not Communicating a Sense of Urgency
Be sure that every client and every opposing counsel knows that you are working diligently on every case you have.
I shouldn’t have to say this, but some lawyers need reminding: Promptly answer your mail and emails, and return phone calls, especially from clients, right away. Remember when you called your doctor about your test results, and there was a several-day delay in response? Did you lose sleep? Did you vow to go elsewhere next time? That’s how your client feels.
You may have 50 open files, all requiring time and attention, but a given client doesn’t care about the other 49. For most clients (by which I include individual representatives of organizational clients), an ongoing case is a major source of worry and stress, often negatively affecting quality of life. We may have relatively quick trial dockets in the Oregon state and federal courts, but every day of delay can be emotional torture — I’m not exaggerating — for some clients. Keep your clients informed, and move their cases along. Give reasonable time predictions, and be candid when these predictions have to change. For example, “As a matter of professional courtesy, I granted opposing counsel a 15-day extension of time to respond to our motion, and I know that she will reciprocate if we need allowances.” Or, “I’m sorry, but I will have to delay filing your case until next week, as I was called in unexpectedly to oppose a motion for a preliminary injunction.”
Your opponents need to know that every case you handle, large or small, is important and has your full commitment. Your clients deserve no less. Of course, grant reasonable professional courtesies, but try to request them as rarely as possible. Work your files! Have a good practice management system (easier now, with software, if you take the time to set it up and use it), so that cases move along and deadlines are anticipated and met. This will keep the pressure on the other side, resulting in better and quicker settlements, quicker trials and hearings, and most importantly, well served and satisfied clients.
Your credibility with judges and arbitrators will be enhanced if you not only meet deadlines, but also beat them, especially with such time-sensitive documents as trial and hearing memorandums and sets of exhibits. If you seem in control and well prepared, judges and arbitrators will appreciate your professionalism, and your clients will benefit.
Avoiding Direct Communications with Opposing Counsel
It’s a digital world, and I’m happy about that. Voicemail, email and text messages are great tools, leading to efficiency and convenience. The downside is that we don’t talk directly with each other as much as we should.
Emails are fine for scheduling and making an informal record, but are not so good for resolving discovery disputes and discussing settlement. Did you know that your smart phone has a free high-tech app, which enables you to actually speak in real time with opposing counsel? You just press his or her phone number, and the real person might actually answer! If you get voicemail, ask counsel to call back, but don’t include substantive detail; for instance, say “Please call, as I have a settlement offer for your client,” but don’t state the offer.
Face-to-face meetings are even better when feasible. Body language and tone of voice, along with immediate feedback facilitate accurate communication. I see this regularly in mediation, where months of negotiation, delay, stress, expense and miscommunication can be avoided by spending one long, hard day together (or at least down the hall from the other side). I certainly do better work as mediator when I am in the same room as you and your client.
When you can, go for coffee or go to the opposing lawyer’s office whenever there is anything important to discuss.
Accepting the Wrong Cases
We have all had a few cases that made us wish we had gone to dental school instead. Some matters are just not worth the aggravation and the need to defend even baseless ethics or malpractice claims that can arise from a bad intake decision.
Lawyers in private practice need clients in order to earn livings, and these are tough times for many lawyers. Also, lawyers genuinely want to try to help people. But in the long run, it is better to be selective. Everyone is entitled to representation, but there are thousands of lawyers to go around — maybe this potential client would be better served by going elsewhere.
When talking with a prospective new client, consider these points, all of which are commonly recognized, but worth having in a mental checklist:
Do you have the experience and expertise necessary to effectively represent the client; or if not, are you able to associate appropriate co-counsel or to do the necessary study, either of which in such a way as not to increase the cost to the client?
Do you have the time (see section below on Accepting Too Many Cases) and, if necessary, the backup staff to handle the case?
Do you have a conflict, even if technically permissible under the Rules of Professional Conduct, which could subtly affect your performance or could be thought to affect your performance?
If the client has been to other lawyers first (always ask), determine why. Some good clients will shop around, and the fit could be just fine if the client picks you. But look out for unreasonable expectations — not necessarily a reason to decline a case, but be sure you have the patience and ability to work with a challenging client.
Will the client be candid with you in providing embarrassing information or facts harmful to the case? Most clients require skillful, patient and repeated questioning from their own lawyers, but don’t let yourself be gamed in a way that can be harmful to both you and the client. If there is a bad fact, you can deal with it appropriately if you know about it up front, not when you learn it for the first time when your client is confronted by opposing counsel at trial.
Do you and the prospective client communicate accurately with each other? Are you able to allow for and respect cultural differences?
Does the engagement make economic sense for your practice? Will the client pay a reasonable retainer? If you accept some cases on a reduced fee or pro bono basis (and you should), will you give the client the same level of commitment and hard work as you would for a client who gladly pays for every minute of you time?
While professionally acknowledging weaknesses in a client’s position during negotiations, or at trial or arbitration hearing, will you be able to convey by your body language and tone of voice that you believe in this client’s case?
Will you enjoy working on this case? Do you want to help this person or this organization?
Accepting Too Many Cases
A person can do only so much.
I think most lawyers can do about as well financially by not only turning some prospective clients away due to bad fit, but also by limiting the number of engagements. This will also increase quality of life for counsel, and result in pleased clients who will return with other matters and who will refer other prospective clients.
Both hourly and contingent fee lawyers can work appropriately hard on matters they have time to handle, and avoid stress and nonbillable or nonproductive wheel-spinning arising from neglected cases. Cases will move to settlement or trial more quickly, resulting in happier clients and the time to take on new matters. A file sitting in a file cabinet for too long hurts both the lawyer and the client.
Failing to Promptly Close Settlements
Some lawyers lose momentum when cases are apparently settled. A “deal” is made, but often with some ambiguity as to whether the agreement is binding. One side may believe that the settlement is already binding, even though further documentation is contemplated. The other side believes that the parties have reached only an agreement in principle, but that the settlement is not binding until all parties sign a formal agreement. Then, weeks go by without clear resolution. Perhaps nothing happens, or there is a slow process of exchanges of draft settlement documents, with eventual withdrawal from the deal by one side, and perhaps further litigation on where things stand.
When cases in which I serve as mediator are settled, counsel sometimes already have a settlement document, which is finalized and signed before the parties leave. For the other cases, I always bring my laptop computer and portable printer. I then prepare a settlement agreement, with counsel’s help. Sometimes the document I prepare is the final agreement. More often, it contains the agreed material terms, a recital that counsel will prepare a more formal agreement, and most importantly, a provision that I will serve as arbitrator to summarily decide any drafting disputes that may arise and that, meanwhile, the document (including payment due dates and releases) is binding and in effect. This last approach keeps everyone on track, and I have been only rarely called to resolve drafting problems.
In counsel-to-counsel deals, be explicit about the state of the agreement. If the intent is that an exchange of emails is binding, say so. If the deal is an agreement in principle but not binding until the parties sign a document, say that — but complete the drafting process on a priority basis.
Not Being Realistic and Candid with Clients
Be sure that your clients know that litigation is a risky and unpredictable process.
Human beings — judges, jurors and arbitrators — decide cases. People are quirky. They have varying attention spans. They have biases and prejudices. They are influenced by emotion. They get tired. Their backs ache, and their feet hurt. They want to see consistency and achieve closure, so they often make up their minds before the presentations are complete. Jurors are influenced by complex interpersonal dynamics in the jury room. Which juror will be foreperson? Which jurors will be influential? Which jurors will be disliked by the others? What alliances will be formed? Which jurors want to go home sooner rather than later?
Witnesses may change their stories or their tone and may fail to appear. Documents may come to light. Adverse experts may support just about any position.
Our substantive law, with its common law and constitutional heritage, and legislative action on multiple levels — city, county, state, federal, plus administrative action on several levels — is complex and subject to interpretation, change and nuance.
Our civil procedure can be Kafkaesque. For example, a procedural issue in state court may require consideration of the state and federal constitutions (for example, on personal jurisdiction), Oregon Revised Statutes, Oregon Rules of Civil Procedure, Uniform Trial Court Rules, local court rules, appellate decisions interpreting the foregoing, unwritten local practices and preferences of a given judge.
The lesson? Never oversell the chances of success. Just about any case can be lost or won. Explain the advantages of reasonable settlement, and work hard to do the best possible job at trial.
ABOUT THE AUTHOR
Richard G. Spier is a full-time mediator in Portland. He is a member of the Oregon State Bar Board of Governors. He authored two earlier articles in the OSB Bulletin, “Mediation Miscues” (June 1999) (www.mediate.com/articles/spier.cfm) and “Arbitration Accidents” (May 2001) (www.osbar.org/publications/bulletin/01may/tips.htm).
© 2013 Richard G. Spier