Sunday, February 19, 2017

PREPARING LAW STUDENTS FOR A LITIGATION PRACTICE

As few as 23% of all lawyers believe that law students are ready to practice law when they graduate. The Institute for the Advancement of the American Legal System  (IAALS), a research center at the University of Denver, is examining what foundations fledgling lawyers need to begin a successful practice and what  legal education models support those foundations. What can we learn so far from the Institute’s research as it applies to teaching law students about a litigation practice?

IAALS has published two monographs. The first issue entitled “Foundations for Practice: The Whole Lawyer and the Character Quotient” explores what the legal profession believes new lawyers need to be successful and makes recommendations. The Institute surveyed more than 24,000 lawyers to determine what characteristics, such as integrity and common sense, and professional competencies were important for new lawyers. More narrowly, they submitted questions to lawyers who had a litigation practice. At least half of the respondents considered three foundations to be necessary in the short term, as follows: drafting pleadings, motions and briefs (72%); request and produce discovery (65%) and interview clients and witnesses (50%). Other foundational skills with significant percentages included: comfortably engage with e-discovery processes and technologies (45%); draft demand letters and releases (42%); prepare a case for trial (27%); provide quality in-court trial advocacy (27%); conduct and defend depositions (24%); prepare for and participate in mediation (21%).

Knowing what lawyers are looking for in a new hires informs those of us who teach pretrial and trial advocacy about where we should place our emphasis. It is gratifying to know that our advocacy courses concentrate on the desired skills. Our two books, Pretrial Advocacy and Trial Advocacy explore  these subjects in depth and provide students with experiences in drafting the mentioned documents and performing, such as taking and defending depositions and engaging in all aspects of trial from case preparation through closing argument.

The Institute’s second monograph, “Foundations for Practice: Hiring the Whole Lawyer:Experience Matters,” reports on the Foundation’s survey of lawyers that asked how lawyers would hire if they wanted to hire those with the needed foundations to practice. The report summarized its findings as follows:

We learned that experience matters. While many employers in practice still rely on criteria like class rank, law school, and law review, our respondents indicated that if they wanted to hire people with the broad array of foundations they identified as important, they would rely on criteria rooted in experience, including legal employment, recommendations from practitioners or judges, legal externships, participation in a law school clinic, and other experiential education.” (emphasis added)

Specifically, the report indicates that of all the listed hiring criteria, 32% of the respondents found experiential education very helpful in hiring. It is gratifying to know that pretrial and trial advocacy courses with strong experiential components will provide the type of foundation that practitioners are looking for in candidates for employment.

Wednesday, February 1, 2017

TRUMP COMPLAINTS


In less than two weeks, Trump has become a petri dish for legal issues and law school discourse. Just as comedians are viewing Trump as a gift, law school faculty members may also see an opportunity. They can use Trump’s actions to stimulate discussions of legal issues, fundamental legal principles and the noble practice of law.

As an example, at the outset of this semester’s Comprehensive Pretrial Advocacy class that I teach at Seattle University Law School, we focus on drafting pleadings. We begin with drafting a complaint. The day before the class when this topic was discussed, Citizens for Responsibility and Ethics in Washington filed the first suit against Trump as President, alleging, “. . . countless conflicts of interest, as well as unprecedented influence by foreign governments.” The legal theory is that Trump violated the Foreign Emoluments Clause. This current event brings the discussion of drafting a complaint to life. It can spawn not only a discussion of the development of the legal theory underpinning the complaint but also provide the students with a nice example of a well-crafted complaint, which can be found in the BuzzFeed News article. How often do you see a complaint that has been signed off on by Constitutional scholar Professor Lawrence Tribe?

When the Pretrial class met again this week Trump had generated yet a number of new complaints against him all across the country as a result of his executive order on immigration. The executive action raised for discussion the issues of due process as well as the remedies of habeas corpus and injunctive relief. Again, the news account in the New YorkTimes comes with the complaint that students can examine as they prepare to draft a complaint as part of their course work.  
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Law schools are using Trump’s actions as opportunities to explore legal issues. American University Washington College of Law held a panel “teach in” on the immigration executive order; the panel discussion can be viewed on YouTube. American University’s action prompted Dean Annette Clark to pull together a panel of Seattle University Law School faculty to also discuss Trump’s actions with the students.

Monday, January 16, 2017

COURT REPORTERS: MAKING A RECORD

We just finished a three-day intersession course entitled Essential Lawyering Skills at Seattle University Law School that focuses on professional communication, and a major component of the course deals with depositions. The law students read, receive a lecture on and discuss how to take and defend a deposition.

As part of the instruction, Lori Rapozo, who is in charge of the Court Reporting program at Green River College, provided the students with practical advice on how lawyers should and shouldn’t take and defend a deposition. For instance, Ms. Rapozo discussed the importance of making a proper record and how to do it.

During the presentations Ron Cook (pictured above) did realtime reporting, and the students went online to follow along as Ron transcribed what was said. He also provided the students with advice about working effectively with a court reporter. Mr. Cook is remarkably skilled; he is the 2016 and 2012 National Court Reporting Association (NCRA) gold medalist in realtime Q&A and holds the Registered Diplomate Reporter (RDR) Certification, the NCRA’s most prestigious certification. Also, Ron Cook is the current Washington State speed champion. 

Later, the students are divided into workshop groups, and Green River students who are learning how to be a court reporters, were present in the workshops performing as they would during a real deposition, swearing in the deponent, writing what is said and handling the exhibits. Following the course, the reporters prepare transcripts that are delivered to the students. This enables the students to see how they performed – how what they said looks in the transcript. The reporters do not clean up the transcripts, allowing the students to see their filler “um”s and “ok”s. Having the court reporters present brings the deposition experience alive and prepares the law students for what they will face in practice.



During the course Lori Rapozo provided the law students with a 15-page handout entitled “Making the Record: A Guide for Attorneys,” published by the National Court Reporters Association. Every law student and fledgling lawyer who is planning to be involved in a deposition should read this monograph, and experienced litigators would benefit from reading it for its reminders. 

The following are a couple examples of tips contained in the monograph.

GOING OFF THE RECORD

Regarding going off the record, the Guide states:

MR. BRAUN: Off the record.
MR. JONES: No, I don’t want to go off the record.
MR. BRAUN: Well, this is my reporter.

The “this” Mr. Braun refers to is in fact an officer of the court, impartial,and the property of no one. The reporter’s duty is to prepare a full and accurate record of proceedings. In most jurisdictions, only when all counsel agree will the reporter stop writing. At this point , the reporter will indicate in the transcript, “(discussion held off the record.)”  The reporter will not start writing again until directed to do so by all counsel.

REMEMBER, SPEED KILLS

The Guide offers this reminder along with an explanation:

In an average day, the court reporter will write anywhere from 30,000 to 50,000 words. It is best for everyone that this not occur within the first two hours.

As with other aspects of life, the pace of legal proceedings has increased over the years. People simply talk faster than they used to. The average rate of speech now is estimated to be 150 to 160 words per minute, or about two and one-half words per second. In the heat of trial or deposition, it’s not unusual for speech to approach double that rate. At around 200 words and above per minute, speech tends to become slurred and indistinct, making it more likely that words will be misheard. . .


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Saturday, December 24, 2016

PRETRIAL ADVOCACY AND PRACTICE-READY BOOK LAUNCHED

The fifth edition of Pretrial Advocacy: Planning,Analysis, and Strategy has been launched. Pretrial Advocacy provides an excellent conceptual and practical foundation for pretrial litigation for trial lawyers, teachers and law students. This new edition is updated and has expanded coverage of both criminal and civil pretrial practice. The focus remains on federal and state litigation. Professional responsibility and civility are emphasized throughout the text. Checklists of skills, techniques, standards and ethics appear in each chapter.

Underpinning the Pretrial Advocacy book is the Confucian methodology of “I hear and I forget. I see and I remember. I do and I understand.” First, each of the Pretrial Advocacy’s fourteen chapters offers a comprehensive explanation of a core litigation activity, from client interviewing, case theory development, drafting pleadings and discovery requests, motions, pretrial preparation through Alternative Dispute Resolution and pretrial readiness conferences. Additionally, each chapter both covers ethical and legal boundaries as well as provides a checklist for the particular pretrial activity under discussion.
Second, Pretrial Advocacy enables the students to see and remember. With the streaming videos provided on the password protected website, students can see and retain the information. For example, they can watch experienced trial lawyers take and defend a deposition and also use the deposition at trial.
Third and most importantly, students can learn litigation skills by performing them. Unlike any other litigation books and materials on the market, Pretrial Advocacy comes with a complete set of materials, including 79 role-playing assignments, two case files (complete with exhibits, witness statements, depositions, and so on) an Actors’ Guide for the witnesses, and a Teacher’s Manual.
New to this publication are materials that make the text ideal for a course designed to produce practice-ready law students. For example, Pretrial Advocacy examines cultural competency essential to effective pretrial preparation and litigation and the skills required to collaboratively work in teams and strategies for conflict resolution

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Saturday, June 18, 2016

ELECTRONIC DISCOVERY PLAN

Your Electronic Discovery Plan: Rule 26 — Hidden Nuggets for the Savvy Litigator
By Larry G. Johnson 

One of the most useful wonders of the world is the Swiss Army knife. I mean the one actually used by the Swiss Army, not the many, cute, tourist versions of same.

I got one as a present a long time ago from the family in Zurich that took me in for a year as an exchange student. But after playing with all the things tucked into the knife, I wound up using just the small blade, the corkscrew and the toothpick (I am pretty sure it was a toothpick). Unlike the ever-proficient Swiss, I chose not to take advantage of all the other tools, a number of which I could never figure out.

And so it is, I have found, with litigators who routinely ignore some really advantageous tools sitting there in Rule 26, begging to be exploited. Gold unmined!

You have a lot to gain if you take the initiative early in a case to set the agenda on discovery. That means always having in your back pocket a default discovery plan ready to send to opposing counsel that you intend to use in your first Rule 26(f) “meet-and-confer”and to present to the judge or magistrate at the first pretrial conference.

To be more precise, you should have ready for each case an electronic discovery plan as specifically referred to in FRCP 26(f)(3)1 and as implied in Washington CR 26(f).2 That plan could be crucial, since e-discovery is unfortunately the most expensive and potentially most contentious aspect of discovery these days and the one most frequently exploited for waste and harassment by lawyers who think litigation is a war of attrition.

A Momentary Detour for Some Background and Ammo

Below, I present you with a sample template of an electronic discovery plan with mock data for use in your practice as you see fit. But before we get there, I think you should know there are some pretty hefty policy arguments you can summon to support a discovery plan that serves the purposes of efficiency, fairness, economy and the recently renewed emphasis on the importance of proportionality in the updated FRCP 26.

And let’s remember what Rule 1 says for both federal and Washington cases: All the other rules that follow Rule 1 “should be construed, administered, and employed by the court and the parties3 to secure the just, speedy, and inexpensive determination of every action and proceeding.”

It was not that long ago when I would remind lawyers attending CLEs at which I spoke about the “just, speedy, and inexpensive” language in Rule 1. Inevitably that was cause for guffaws and “Yeah, right.” But no more. Most courts and consumers of legal services have had it with the waste and gamesmanship that once thrived unchecked in the heyday of “kitchen sink” e-discovery.

But the bench and bar have gone much farther than just curbing or sanctioning e-discovery abuses. Some innovative and well-supported initiatives were launched in recent years to come up with ideas and solutions to make e-discovery more affordable, efficient and reasonable. Notable among these are the 7th Circuit Pilot Project; the Standing Order in the 7th Circuit Pilot Project; the Sedona Conference Principles; and the Model E-Discovery Order for Patent Litigation created by the Eastern District of Texas.

Each of these initiatives is worthy of emulation and discussion, but to highlight their individual merits will have to be the subject for a future article. To read these source documents on your own, you can find and download them at www.e-dataevidence.com/Links.html.

Try Your Hand at It

Start now to create your own “model” electronic discovery plan that incorporates some or all of the good ideas welcomed by judges in the projects cited above.

Here is the text of the suggested template I promised you, which happens to comply with the federal Form 35 format, for you to use in your next case (and also downloadable at www.e-dataevidence.com/Links.html):

Report of Parties’ Planning Meeting per CR 26(f) and Discovery Plan

1. Meet and Confer. Pursuant to Fed. R. Civ. P. 26(f) [or CR 26(f)], a meeting was held on March 12, 2016, at the Seattle law offices of Tomlin & Chase, PLLC, and was attended by:
Larry G. Johnson, Attorney for Plaintiff.
Ronald J. Tomlin, Attorney for Defendants.

2. Pre-Discovery Disclosures. The parties will exchange by June 4, 2016, the information specified in and required by Fed. R. Civ. P. 26(a) [or CR 26(a)], subject to the following agreed-upon protocol:

Responsive electronically stored information (“ESI”) will be produced in native file format and, to the extent possible, produced in electronic folders and subfolders as stored on the media from which the ESI is produced, preserving the names used for those folders and subfolders. Alternatively, the producing party will provide for each produced electronic file a spreadsheet or other document with the “path” for each such file, indicating the storage device’s hierarchy of folders within which the file was stored. For example, if a file named “Jones.PDF” is stored on a desktop computer in a folder named “Correspondence,” and that folder in turn is stored in a folder named “ABC Project,” which in turn is stored in a folder called “Current Projects,” then the production of “Jones.PDF” should be produced in that hierarchy of folder and subfolders in a separate document, such as a spreadsheet, and should show a link to “Jones.PDF” indicating its path, e.g.: “C:\Users\Jones\Desktop\Current Projects\ABC Project\Correspondence.” This procedure shall be deemed to satisfy the requirement of Fed. R. Civ. P. 34(b)(2)(E)(1) [or CR 34(b)(2)(E)(1)] that ESI be produced as “kept in the usual course of business.”

3. Discovery Plan. The parties jointly propose to the court the following discovery plan:

A. Electronic Discovery Plan.
1. ESI produced in this case shall be in accordance with the protocol regarding native file types and tracking of file paths as outlined in Paragraph 2 above.
2. Electronic discovery will be conducted in phases which will be repeated iteratively as necessary to enhance the precision and accuracy of search results, and so long as the effort is in accordance with the proportionality requirements of Fed. R. Civ. P. 26(b)(2)(C) [or CR 26(b)(2)(C)]. The parties will cooperate and use best efforts in their use of technology to achieve cost-effective results. To that end, the first phase of keyword searches of potentially relevant ESI shall proceed as follows:
a) Emails and their attachments. Each party shall provide to the other the names, job titles and job duties of five persons who may become witnesses for that party and most knowledgeable about facts relevant to this action, and that party shall conduct searches of all email accounts of such persons, according to search terms set out in paragraph 2(b) below, and each party shall produce to the other party all responsive ESI, i.e., both emails and their attachments, not privileged, to the opposing party, no later than July 1, 2016, subject to the other conditions set out in this paragraph 2.
b) Search terms. For the initial search, each party may submit to the other party up to 10 search terms they are to use to search their ESI. A combination of terms used together in a single search in order to provide greater precision and accuracy of results shall be deemed, for the purposes of this subsection, to be one search term. For example, a Boolean search such as “Jones AND Smith BUT NOT Appleby” is one search term, as would be a proximity search such as “Jones WITHIN 2 WORDS OF Ralph.” Each party shall communicate within five business days from the date of this report the search terms it wishes the opposing party to use as to the opposing party’s email sets defined in subsection 2(a) above.
c) Date range. For the purposes of this initial phase, the parties agree that the relevant date range within which potentially relevant documents may be found is September 1, 2012, through September 1, 2015, inclusive. Search term results for any ESI lying outside that date range may be ignored.
d) Certification. The parties, through their attorneys, will certify per Fed. R. Civ. P. 26(g) [or CR 26(g)] that all ESI produced as a result of the searches is complete and accurate as of the date the production is made.
e) The parties agree to meet and confer no later than August 1, 2016, to attempt agreement on whether a second phase of e-discovery is required; additional search terms to be used based on what is learned from the first-phase results; and to identify any disputes regarding e-discovery which may be submitted to an agreed-upon third party to mediate and/or resolve as Special Master per Fed. R. Civ. P. 53 [or CR 53], or in any other agreed-upon capacity.
f) The parties agree to follow and be bound by the Sedona Principles regarding electronic discovery, as currently published at www.thesedonaconference.org.
g) The parties will repeat the process as set forth above, whereby the scope of ESI may be further limited or expanded as needed by agreement between counsel or by order of this Court.

B. Discovery will be needed on the following subjects:
1. Plaintiff’s proposal: Defendant’s customer lists, sales data, research data and technical specifications regarding Project ELMO; Defendant’s emails regarding the foregoing internally and to/from third parties; Defendant’s use of such information in attracting investors to the planned incorporation of XYZ Industries; the source and amount of investments obtained for XYZ Industries, along with Defendant’s business plan(s) regarding same.
2. Defendant’s proposal: Plaintiff’s Minutes of Board meetings regarding anything relative to Project ELMO, including plans regarding abandoning that project; emails of Executive Committee employees regarding those same subjects.

C. Discovery Cutoff. All discovery commenced in time to be completed by January 12, 2017.

D. Discovery Amount.
1. Maximum of 25 interrogatories, including subparts, by each party to the other party.
2. Maximum of 25 requests for admission, including subparts, by each party to the other party.
3. Maximum of 5 depositions by Plaintiff and 5 by Defendant. Each deposition is to be limited to a maximum of three hours unless extended by agreement of the parties.

E. Reports from retained experts under Fed. R. Civ. P. 26(a)(2) [or CR 26(a)(2)] due:
from Plaintiff by November 15, 2016.
from Defendant by November 15, 2016.

F. Other Items.
1. The parties do not request a conference with the Court before entry of the Scheduling Order.
2. The parties request a pretrial conference in December 2015.
3. Plaintiff is allowed until May 12, 2016, to join additional parties and until July 15, 2016, to amend the pleadings.
4. Defendant is allowed until May 20, 2016, to join additional parties and until July 15, 2016, to amend its pleadings.
5. All potentially dispositive motions should be filed by December 1, 2016.
6. Settlement may be enhanced by use of the following alternative dispute resolution procedure: appointment of a Special Master for any discovery disputes per Fed. R. Civ. P. 53 [or CR 53].
7. Final lists of witnesses and exhibits under Fed. R. Civ. P. 26(a)(3) [or CR 26(a)(3)] should be due:
from Plaintiff by November 15, 2016.
from Defendant by November 25, 2016.
8. The parties have 10 days after service of final lists of witnesses and exhibits to list objections under Fed. R. Civ. P. 26(a)(3) [or CR 26(a)(3)].
9. The case should be ready for trial by January 4, 2017, which at this time is expected to take approximately three days.

Dated this 14th day of March, 2016.
[signatures and contact information of counsel] 

FOOTNOTES:

Larry G. Johnson is a lawyer in Newcastle, and has been a member of the Washington bar since 1974. He recently served on the E-Discovery Subcommittee of the WSBA Escalating Cost of Civil Litigation (ECCL) Task Force. Besides being a litigator, for the past 20 years, he has served as a consultant and expert witness in e-discovery matters. He does business as Electronic Data Evidence (www.e-dataevidence.com).

1 (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:
(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;
(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). (emphasis added)

2 CR 26(f), not as robust as Fed. R. Civ. P. 26(f), provides in part:
Discovery Conference. At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each party and each party’s attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. (emphasis added)
So, while the federal rule requires a “meet and confer” followed by a pretrial conference to devise a discovery plan, it appears that process is optional in our state courts. The point of this article, however, is to try and convince you to take the opportunity proactively via 26(f) anyway to put reasonable controls on discovery before it even starts. I don’t think it’s a coincidence that lawyers who can control the flow of a case are often the ones who win it.
3 The phrase “and the parties” was added in recent federal rules changes to emphasize the point that litigants have responsibilities in this regard along with the courts.


Published with permission by Larry G. Johnson
Originally published in the June 2016 issue of the King County Bar Association Bar Bulletin and displayed on its website https://www.kcba.org/secure/PasswordHelp.aspx?Reset=105918cc1f06353 with this notice: All rights reserved. All content of this website is copyrighted and may be reproduced in any form including digital and print for any non-commercial purpose so long as this notice remains visible and attached thereto.