Saturday, February 21, 2015

MEDIATION THE RIGHT WAY

This month, the King County Bar Association Bar Bulletin published Charles Burdell’s  discussion of DON’TS  for mediations. Charlie Burdell had a career in private practice. He later became a King County Superior Court Judge before becoming a full time arbitrator and mediator. On the right, he is pictured waterskiing on Lake Washington last August. His helpful article on mediation mistakes to avoid reads as follows:
            
Thirty five years is a long time, but it seems like it was just yesterday.  I began doing mediations as part of the first “roster of volunteer attorneys” which was created in the early days of the Federal Bar Association.  I followed that with many judicial settlement conferences while I was a King County Superior Court Judge.  I left that work in 1990 to begin a career as a private mediator and arbitrator and am still going strong.  Last summer I successfully mediated the dispute between the taxi cab industry and ride service providers. 

            Mediation is a very important part of a successful legal career in litigation and the attorneys in this state are very good at it.  However, over the years, I have noticed several recurring mistakes.  Having seen lawyers make these mistakes for 35 years, I feel its ok for me to just tell it like it is and give you guys a list of DON’TS!!

            Don’t oversell the client’s case to the client:  No case gets better than the first day it walks into your office.  Be sure to temper your early assessment of the value of your client’s case until you get an idea of the facts from the other side’s perspective.  Many times in mediation, especially of personal injury cases, the clients are frustrated when they are confronted with settlement which is far less than they were advised when their attorney was retained. 

            Don’t represent multiple plaintiffs in personal injury actions without providing “informed consent”:  RPC 1.8 (g) provides that a lawyer “who represents two or more clients shall not participate in making an aggregate settlement of the claims” unless each client gives informed consent in writing.  It is surprising how many lawyers come to mediation representing multiple clients injured in the same tort without any objective way to allocate a settlement and without obtaining the clients’ prior informed consent.  The best practice is to either obtain the clients’ informed consent prior to accepting the representation or just represent the client with the best case and refer the other injured party to your law school classmate!!

            Don’t participate in mediation without all the stakeholders present:  Obviously, your client should be in attendance along with all decision makers.  However, don’t forget to at least inform lien holders of the mediation and invite their participation either in person or on the phone. 

            Don’t miss an opportunity to explain your case to the other side in a business like, professional manner.    If your mediator suggests an initial joint session, this is a golden opportunity for you to explain your case to the decision makers on the other side, without the filter of the opposing attorney.  You should direct your comments to the decision maker and in a calm, professional and business like fashion, thank them for participating in the mediation, tell them why you are right and why  they should agree with you. 

            Don’t participate in a mediation without providing the other side with a copy of your submission:    A copy of your submission will create a professional duty in your opponent to provide your version of the case to her client.  If you need to inform the mediator of something confidentially, send a second, private letter.  This is especially important for the defendant in a personal injury case.   Having your letter laying around the plaintiff’s home, gives family members a chance to understand there are two sides to the story.  Also, and most important from the standpoint of closing settlement, giving your submittal  to the plaintiff’s attorney, allows her to send it to the lien holders so they can understand the validity of the suggestion that they reduce their liens to enable settlement.

            Don’t arrive at the mediation without an up-to-date summary of costs to be charged to your client’s recovery:   Uncertainty regarding the costs expended is a frequent mistake.  This is a very important calculation, because it directly affects the net recovery for a plaintiff in a personal injury case. 

            Don’t make unreasonable settlement proposals:  In criminal law, a “reasonable” doubt is a doubt for which a reason exists.   Similarly, a reasonable settlement offer is one for which a reason exists.  When faced with an unreasonable proposal from the other side, keep the “white hat” on your head by instructing the mediator to tell the other side that you believe the proposal unreasonable and are ignoring it.  You are making what you believe to be a reasonable offer, one which is not in response to the other sides’ unreasonable proposal. 

            Don’t wait until midnight, when a settlement number has finally been  reached, to propose non-financial issues like confidentiality:   If confidentiality is important to your client, raise it in the materials you submit to the mediator and to the other side and make sure the mediator communicates it with your first offer.  Nothing derails an arduous negotiation more than raising new issues late in the discussion.

            Don’t be a stick in the mud: Be open to creative solutions to reach settlement.  When Supreme Court Justice Bobbi Bridge began her legal career on the King County Superior Court, she observed a morning judicial settlement conference I conducted.   The parties were involved in a dissolution and the value of a diamond ring was in dispute.  The parties agreed on the cut, color and clarity of the diamond, but disagreed on the value.  Justice Bridge’s husband, John, was President of Ben Bridge Jewelers.  At my suggestion and with the concurrence of Justice Bridge, the parties agreed that we could call Mr. Bridge, give him the characteristics of the diamond and obtain his opinion as to its value.  We did, he gave us a value and the case settled!

            Don’t come unprepared to any mediation, especially an early mediation:  Since most civil litigation settles, and since many settlements occur at mediation, it is extremely important to be well prepared and able to empower your mediator with the necessary information to convince the other side to agree with you.  Further, especially in early mediations, it may well be the first time your client sees you in action.   Early mediations are usually conducted before anyone has been deposed.  Remember, your mediator is only as powerful as you make her.  Be sure to have all the important facts marshalled and ready to assist the solution.  Also, don’t miss a settlement opportunity because an important witness has not been deposed.  Have the witness available by telephone and conduct a conference call to ask the witness on an informal basis what happened.

            Don’t ask for or agree to non-disparagement clauses:  These clauses simply provide litigants who have just finalized a dispute with yet another cause of action.  Especially in business dissolutions, you can be sure the parties have disparaged each other for the entire life the lawsuit and probably before.  It is very easy for rumors of this conduct to be repeated after the settlement by third parties, which, when overheard by one of the parties, may cause another lawsuit.  The best advice to give your client who worries about being disparaged after settling the case is for the client to “consider the source”. 

            Don’t settle your case on a handshake:  Always prepare and sign an agreement memorializing the settlement you reach at the mediation.  If more formal documents are necessary, write something like “The parties contemplate the preparation and execution of more formal documentation memorializing this settlement agreement.”  This will prevent your settlement from becoming the proverbial “agreement to agree” and if you are not able to agree on the “more formal documentation”, your mediation settlement agreement will remain in force and prevail. 

            Don’t confuse the mediator:  Be sure to state in the first paragraph of your mediation submittal which party you represent.  Many lawyers, having lived a case for its entire life, forget that the mediator is new to the problem and has no idea which party the lawyer represents.  If not informed early in the submittal, the mediator has to try to figure it out.  Also, it’s a good idea in the second paragraph of your submittal to explain why you will win.


Reprinted by permission of the author Charles Burdell. Originally published in the February 2015 issue of the King County Bar Association Bar Bulletin.  Reprinted with permission of the King County Bar Association.

Thursday, February 19, 2015

Comprehensive Pretrial Advocacy Class Goes to the Crime Scene - Garage Tavern


Seattle University Pretrial Advocacy Class
Spring 2015 at the Garage Tavern Crime Scene

Saturday, February 14, 2015

THE RIGHT AND WRONG WAYS TO PREPARE YOUR WITNESS FOR DEPOSITION

This month, the King County Bar Association Bar Bulletin  published Thomas M. O’Toole’s excellent recommendations on how to prepare a deponent. Mr. O’Toole is the President of Sound Jury Consulting, and his following advice is well worth reading and heeding:

            The deposition performance of a key witness is critical to the outcome of any case. Summary judgment motions are often won or lost on the testimony of central witnesses. Even when the case survives summary judgment, unfortunate behavior or answers in depositions can have a detrimental impact at trial, leading jurors to dislike or distrust the witness, which lowers their motivation to want to find in favor of the party that witness represents.

            I often receive calls from attorneys who are looking for a witness preparation session just before trial for a difficult witness.  The typical explanation is that the witness performed poorly in his or her deposition and needs to improve for trial. These calls are frustrating because, while I am happy to help, there is no need for a witness to perform poorly in a deposition. There are a variety of strategies attorneys can use to position a key witness for success in his or her deposition. Unfortunately, these strategies are often not used and attorneys instead rely on deposition preparation sessions with witnesses that create more problems than they do solutions.

            The purpose of this article is to discuss the right and wrong ways to prepare a witness for a deposition. All key witnesses should go through this process. Attorneys should avoid making an assumption that a witness will perform well in a deposition because he or she is smart, sociable, or a good communicator. The trenches of daily life vary greatly from the trenches of a deposition. Skill sets that make a person successful in daily life do not necessarily translate to or prepare a witness for a deposition. There is no greater example of this than former President Bill Clinton. Clinton’s defining trait was his communication skills. He was a smart, charismatic man who was known for his ability to adapt to just about any situation and demonstrate excellent communication skills in the process. When he was deposed in the Paula Jones sexual harassment lawsuit, most expected a solid performance. The American Spectator described Clinton as the kind of witness “who would strike fear into the hearts of opposing lawyers.”  However, his performance was anything but. The American Spectator went on to describe him as “an unsophisticated witness, revealing a desire to please the opposing lawyer, and telling prepared stories that suggested he had lots to hide.”

            In order to understand the right ways to prepare a witness for a deposition, let’s start by looking at the wrong ways to prepare a witness. The typical preparation session between a witness and an attorney involves both of them sitting down in a conference room for a few hours or more and talking through the case. The attorney probes the witness on issues the attorney needs to know more about and gives the witness all sorts of advice on how to talk about different issues in the case. The session usually ends with a homework assignment for the witness requiring him or her to review a bunch of documents and try to remember an unreasonable amount of items.

            There are several reasons this approach fails. First, the witness will not remember the majority of what he or she was told. All of the studies on recollection suggest the witness will remember about 10-20% of what he or she was told in that session. Second, the witness is not given the opportunity to practice the testimony, which is critical. Witnesses need the experience dealing with all of the standard attorney tricks. They learn this through actual practice. Third, all of the tips and advice from the attorney can be overwhelming. Depositions are intimidating enough and now the attorney has piled on all sorts of “important” things the witness “must” remember. In short, this cramming approach does not work and can often backfire. Witnesses perform poorly when they feel overwhelmed and not in control.

            The difference between an ineffective and an effective prep session is what I would describe as an “attorney-centered” approach versus a “witness-centered” approach. The former focuses on the attorney’s needs while the latter focuses on the witness’s needs. The fundamental goal of any prep session should be giving the witness comfort and confidence, which are essential to a successful performance. Everything else derives from these two items. I often joke that witness prep sessions are actually therapy sessions. In this respect, the joke is half-true. Comfort and confidence empower a witness to see clearly and take control of what his happening in the deposition.

            Let’s now look at the practical strategies for giving a witness comfort and confidence.

1.    Determine what the witness can realistically accomplish in his or her deposition. This can vary greatly among witnesses and will impact the approach the attorney should take. For example, the goal for some witnesses may be as simple as not “bombing.” In another instance, the witness may be better suited to carry the weight of the case. An honest assessment is critical here. I have seen attorneys try to get witnesses to take on more than is realistic, which overwhelms them and ultimately leads to poor performances.

2.    Practice the deposition. The attorney should sit across from the witness in a conference room and pretend to be opposing counsel, asking all of the questions and deploying all of the standards tricks one would expect from opposing counsel. The witness should pretend it is the actual deposition. This gives the witness an opportunity to fail and learn from it, which is much more impactful and memorable than merely discussing the case for a few hours. Witnesses need to get used to the environment of a deposition and the failure to practice forces them to learn and adjust during the actual deposition. Conduct this practice in 10-15 minute segments and do not let the witness call “time out” when he or she is uncertain about how to deal with a question. The attorney needs to see how the witness will deal with it when he or she cannot call “time out.” Each 10-15 minute segment should end with a discussion of where the witness can improve as well as what he or she did well. Positive reinforcement in the form of the latter is critical to maintaining the witness’s comfort and confidence.

3.    Identify a few basic ground-rules and try to tie all of the feedback back to them. I usually start my prep sessions by explaining to the witness that depositions can be very easy if the witness just follows a few basic ground-rules. This helps ease stress and creates confidence in the witness that he or she will be able to get through the deposition without any major blunders. I usually provide four ground-rules. First, the fundamental task is to listen to the question and answer only that question as efficiently as possible, while correcting any problematic language or assumptions that need to be corrected. It’s the most painfully simple (but effective) tip for any deposition, yet witnesses get so overwhelmed that they lose sight of this simple, important rule. As part of this, I explain that listening is actually more important than talking in a deposition. Sometimes, I’ll ask witnesses to adopt the habit of rephrasing the question in their answer, which helps ensure they are listening and catching any problematic language or assumptions in the question. Second, I tell them that all of their answers should come from one of three places: what they personally know or remember, what the records show, or what their common practice was. Anything beyond these three sources is speculation and should be avoided at all costs. Third, I tell witnesses to not be afraid of saying “I don’t know” or “I don’t remember” if it is the accurate answer. Many witnesses treat depositions as a test where “I don’t know” or “I don’t remember” is a wrong answer. This leads to speculation and inaccurate answers. Finally, I tell them to own the facts, not run away from them. I will usually highlight what I believe the bullet-point summary of the case is and help them appreciate that there is nothing to run away from, which means a “yes” answer should not become a “yes, but…” answer followed by a lengthy explanation. These “yes, but…” answers sound defensive and suggests insecurity. The simplified, bullet-point summary of the case also helps witnesses understand and talk about the case in a more clear manner. In my experience, the vast majority of problems get back to the witness violating one of these four ground-rules. By keeping it short and simple and trying to tie feedback to these points, the witness will start to realize that he or she does not need to be intimidated or nervous and has the ability to take control of the deposition and perform well.

4.    Let the witness complain or rant. If something is bothering the witness about the case, the parties, or anything else, let him or her rant about it. It can be painful to listen to sometimes, but it is important for the attorney to understand what is going on for the witness and it is even more important for the witness to have an outlet for those concerns. If the attorney does not provide the outlet in the prep session, the deposition becomes the outlet. This results in long, rambling answers that become fodder for opposing counsel’s opening statement.

A whole book could be written about preparing witnesses for their depositions. It is difficult to limit the discussion to the length of an article for the Bar Bulletin since there are so many tips and tactics for improving a witness’s performance in deposition, but hopefully these tips provide attorneys with a good springboard for an effective witness preparation session. The key is practice. It is this experience and feedback that will best arm your witness for success in a deposition.

Thomas M. O’Toole, Ph.D., is president of Sound Jury Consulting, LLC, in Seattle.  You can learn more about Sound Jury Consulting at www.soundjuryconsulting.com.

Reprinted by permission of the author Thomas M. O’Toole. Originally published in the February 2015 issue of the King County Bar Association Bar Bulletin.  Reprinted with permission of the King County Bar Association.







Thursday, February 5, 2015

BRAND NEW EDITION OF CROSS-EXAMINATION HANDBOOK

The Second Edition of Cross-Examination Handbook: Persuasion, Strategies, and Techniques has just been published by Wolters Kluwer. This new edition continues its straightforward step-by-step instruction combined with examples from illustrious trials including the Zimmerman trial.

The new edition adds, among other topics, visual cross-examination, social media impeachment and the interplay of discovery and cross. Also, the Cross Handbook has been updated to cover the new Evidence Rules and case law.

Along with the new edition comes a revamped and expanded website for the Cross Handbook.  On the new website are the following:
  • case files for use in professional development seminars or law school trial advocacy classes;
  • for professors password protected Teacher’s Manual and Actors Guide (containing witness instructions for role-playing exercises), and
  • supplementary materials, such as articles on cross-examination.


Wednesday, January 28, 2015

BRAND NEW TRIAL ADVOCACY 4TH EDITION



The Fourth Edition of Trial Advocacy: Planning, Analysis, and Strategy has just been published by Wolters Kluwer. This new edition continues to explore all aspects of trial persuasion with expanded and updated coverage.

Some of the Major Additions to the Fourth Edition are:
·      Complete case files for mock civil wrongful death and criminal murder trials, with witness statements, exhibits, legal memoranda, statutes, jury instructions for mock trials, and performance assignments
·      Seventy-nine role-playing assignments, from jury selection through closing argument
·      Comprehensive witness instructions for assignments and mock trials
·      Trial preparation and case management, covered in a new chapter
·      Updated rules for Civil Procedure, Criminal Procedure, Ethics, and Evidence

Particularly important is that this new updated edition comes with a brand new website AspenAdvocacyBooks.com www.aspenadvocacybooks.com. This website features:

·      A full-length trial demonstration movie that can be streamed, showing experienced trial lawyers engaging in every stage of trial from jury selection through closing argument
·      A video of a crime scene tour
·      Case files, Actors Guides and a Teacher’s Manual for mock trials or experiential exercises either in professional development CLEs or law school classes