Don’t Fear Lawyers

13 12 2011

We are often brought in to fix a problem that has gotten out of control.  Often, the problem could have been prevented with very little work from an attorney.  When asked about why the client waited so long to retain an attorney, the answer is almost always “I was worried about how much it would cost.”

That fear causes problems to get out of control and makes everything more complicated and expensive in the long run.  Without exaggeration, it can mean the difference between five hours of work and five hundred.

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Is Dictation a Lost Legal Skill?

20 10 2011

In the “olden days” of law, which don’t go back so far, lawyers used dictation to write briefs, correspondence, etc.  They would talk into a tape recorder and then their paralegal or secretary would listen to the tape and transcribe everything.  The lawyer would then go through a printout with a (usually red) pen and give it back to the typist who would make the revisions.  This would go on until the document was complete.

Recently, I spoke with an attorney, who is not that old, who still uses this method.  For a number of years, he has been using digital recorders instead of cassettes, and outsourcing the typing.  Instead of his paralegal/secretary doing the typing, he would email the sound recording to a service, which would transcribe it and then email it back as a Word document.  He could then make revisions himself (often on a printout with a pen which he would then give to his paralegal/secretary).

For many lawyers, this method makes sense since they do not type as fast as a trained typist, and they have practice “thinking through speaking.”

For those of us who grew up with computers, this is neither a natural method of thinking, nor efficient.  My smartphone has a voice recorder, so I recently experimented with writing a letter this way.  I found dictation extremely uncomfortable.  Without the ability to quickly glance at what I “wrote” previously, and quickly make edits, I was lost.  For me, doing my own typing and editing is invaluable.  For my clients, it is a huge money saver – my end work product is much faster than if I dictated and had somebody else type, and my hourly rate is lower because I don’t have to cover the costs of a typist.

But I can see how dictation could be a valuable legal skill.  For instance, every motion is spoken instead of written.  This gives the attorney practice making the arguments that he or she will make in court.  By revising the motion multiple times from start to finish, the attorney also gets very familiar with the brief.  I don’t know if this leads to more victories or just costs more, but it is certainly a skill which newer lawyers will not have.





The Importance of Foundation

22 07 2011

Whether you are dealing with a lawsuit or business negotiations or political debate, it is essential to understand the concept of foundation.  Far too often, people jump to a conclusion without the proper support or evidence (in other words, the “foundation” for that conclusion).

For instance, maybe one person rear ends another.  The person who got rear ended might assume that the other person was sending a text message and not paying attention.  But why would they assume that?  This is absolutely a vital question.  Perhaps they saw the person with a cell phone in hand, perhaps not.  Even with a cell phone in hand, you can’t conclude that the person was sending a text message.  Maybe the person was distracted for other reasons.

Another example would be if you suddenly found your competition using the name of your product on theirs.  You might assume that they are doing so on purpose.  But without some support, that is just an assumption.  Perhaps they are doing it accidentally.  Perhaps not.  But you should always start with what you know for sure and build from there, making note of where you are making assumptions.





Casey Anthony–A demonstration on the necessity for evidence

6 07 2011

In our last post, we wrote about the importance of evidence.  In that post, we were specifically addressing expert opinions, in a prior post we explained that “The first thing to ask yourself before embarking on a lawsuit is ‘what evidence do I have in my possession to prove my case?’” The reason that question is so important is because a lawsuit is about proving a case; presenting the evidence in a way that the judge and jury will come to the conclusion you want. This question is especially true in a criminal case where the burden on the prosecution is higher than in a civil case.

In a murder case, the prosecutor has to prove that the defendant committed the murder, and the prosecution has to prove this “beyond a reasonable doubt.”  But to get to the conclusion of murder, logic dictates that the prosecution also has to prove that the defendant could commit the murder.  In other words, the prosecution in the Casey Anthony case had to logically establish two points:

  1. That Casey Anthony could kill her child, Caylee – physically and emotionally, and
  2. That Casey Anthony did kill her child.

It is very important to note that sometimes evidence of the killing is so strong that it necessarily establishes capability.  In other words, if there is video of someone committing the murder, then obviously that person is capable of the murder.  In legalese, this is the “probative value” (the strength) of the evidence – how strongly does it tend to prove your point.

In the Casey Anthony case, the prosecution focused on point 2 – that Casey Anthony committed the crime.  But he did not address whether she could kill her child.  Certainly, she was physically capable, but there was a big question about whether she was emotionally capable.  This was a big hole in the prosecution’s case that the defense focused on.  After all, it is hard to believe that a mother would want to kill her own infant child.  Parents are not naturally inclined to do that; they are not emotionally capable, nor would the vast majority of people want to do something so vile.

Without any evidence that Casey Anthony was so mentally deprived, or had such a strong motive to overcome any emotional ties she had to the child, the prosecution would need very strong evidence that she committed the act.  They did not have that evidence.  In fact, their only motive was that she wanted to party. 

Given the lack of motive or evidence that Casey was completely different emotionally from most parents, the jury was left with one question: Is it possible that Caylee let herself out of the house and drowned in the pool, and her mother tried to cover it up out of guilt and panic (it was uncontested that Caylee was able to get out of the house on her own)?

The defense did not need to prove that story, just that it was a believable possibility (the question is not whose story is more believable…).  Without proving that Casey was capable, all of the prosecution’s evidence proved was that the defense story was actually possible; it was all consistent with that theory.





Winning Your Lawsuit–the importance of expert witnesses

30 06 2011

By: Aaron Shechet

As we mentioned in our article “Winning Your Lawsuit—understanding litigation” (here or here), evidence is the primary focus of a lawsuit. In “Winning Your Lawsuit,” we focused on the discovery process, where you exchange evidence, or avoid exchanging evidence, with the other party. Here, I want to talk about the next step: explaining your evidence to a judge or jury.

While the value of some evidence is obvious – for instance, a signed contract regarding the subject matter of the dispute – other evidence requires explanation. For example, your opponent may claim that the signature on your contract is a forgery. In that case, someone needs to analyze the signature and provide an opinion as to its authenticity. Some cases turn on scientific or medical evidence which requires explanation. Other disputes require an expert witness simply because the central issues are confusing or unsettled. For example, I served as an expert witness to testify about true retainers in a lawsuit by music producer Phil Spector against his lawyer Robert Shapiro. This issue isn’t scientific or technical, but it is the subject of much disagreement in the legal community.

In California, the evidence code prohibits laypersons from giving opinions about anything requiring special qualification, so you can’t have just any witness explain issues like these to the jury. In situations like these, you need an expert witness. An expert witness is exactly that – an expert in a specific field who will give an opinion about something that most people are not qualified to testify about. After all, if someone does not have special training to identify forged signatures, their opinion about a signature is little more than a guess. It is not evidence.

Whether you need to hire an expert witness depends on your case. Qualified experts are expensive, and may need to spend a lot of time preparing for your case, answering questions at a deposition, and testifying at trial. But in some cases, an expert witness is vital.





Winning Your Lawsuit–understanding litigation

28 06 2011

We have found a lot of people misunderstand the process of a lawsuit.  They seem to believe that lawyer A files “something,” then lawyer B files “something,” then everyone goes in front of a jury at which point lawyer A screams, then lawyer B screams and the lawyer who is “better” wins their client a lot of money.  This misunderstanding probably arises from television portrayals of lawsuits as quick events.

In order to “win” a lawsuit, the first step is to understand what the process and goal of a lawsuit is.

In short, a lawsuit is an attempt to get a judgment in order to force another party to do, or not do, something.  The most common goal is to force another party to pay money for damage that their actions have caused.  But it is very expensive to win a lawsuit, so the cost of winning should, ideally, be far less than the amount at stake.  If you are defending a lawsuit, the goal should be to get it dismissed with the least possible cost.

But why is it so expensive?  A lawsuit is not a one-day screaming match.  Although a trial might, depending on the case, only last for one-day, in order to “win” you need evidence.  The first thing to ask yourself before embarking on a lawsuit is “what evidence do I have in my possession to prove my case?”  The second thing to ask yourself is “what evidence will I need to get from the other side to prove my case?” These questions are important because both sides will have months, often stretching into years, to conduct “discovery,” which is the process of getting evidence from the other side.

Too often, the evidence that you need—documents, testimony, the identity of witnesses – is in the hands of your opponent and they won’t turn it over without a fight.  If you understand that the main driver of a lawsuit is gathering and protecting evidence, then you will have a better understanding of the nature of litigation and you will make your lawyer’s job easier.  That is, you will be in a better position to win.