How to work with your lawyer

11 04 2012

Whether you retain a lawyer to draft contracts or to represent you in court, the outcome of your case will depend largely on how well you work with your lawyer.

A lawyer is not a magician or a mind reader.  Your lawyer needs to know all of the information available to you in order to best represent your interests.  For instance, if you were in a car accident and you noticed that the other driver was on the phone, keeping this information from your lawyer could substantially harm your case.

A good lawyer will listen to you and ask you questions.  A good client will tell their lawyer everything about their case.

So, a good place to start is to write down everything you can remember about what led up to the lawsuit.  Or, in the case of a contract, all of the terms that you would like.  Then sit down with your lawyer and go through the list.  The more you provide ahead of time, the better.  For each fact, try to answer the question “how do I know this”?

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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.





How to Solve a Problem

26 08 2011

Too many people try to force their idea of a solution as the only solution to a problem they are facing.  In other words, when faced with a problem, they come up with one solution and try to make that work.  This inevitably fails.  The first step when facing a problem, whether it is in litigation, business, or otherwise, is to explore all possible solutions.  Choose the solution that is most likely to work and bring the best result, not just the solution that you hope will be the best.  Do not blind yourself to other avenues that may work, and may work better.

In other words, when presented with a square hole, do not try to force a round peg into it.





The Arbitration Clause

11 08 2011

Arbitration, as we explained in our last post, is a more adversarial process than mediation. In a typical arbitration, a sole arbitrator or a panel of three arbitrators listen to each party present his or her side of the case, and then make a decision, which may or may not be binding on the parties. You have probably, at some time in your life, agreed to settle a dispute through arbitration. Many, if not most, contracts with big companies (credit card companies, etc.) include an arbitration clause.

Because an arbitration clause requires your dispute to be settled outside of court, you may think it is in your best interest. After all, litigation is expensive, time consuming, and stressful, so an alternative procedure must be better for you, as a consumer or small business. However, when you sign a contract with an arbitration clause, you are giving up (or at least delaying), your right to take the other party to court, and this may put you at a disadvantage.

An arbitration clause often specifies that the arbitrators will be associated with a specific organization or industry that is likely to favor, or at least understand, the other party’s position. If you and the other party to your contract work in the same industry and would be more comfortable settling a dispute in front of experts, this may be an advantage for you. If you are not working within a specialized industry, but contracting with one who is, you may not want to settle your dispute in front of a panel of experts who may already know and respect your adversary.

An arbitration procedure is likely to be more private than a lawsuit. This may benefit both parties, or it may put one at a disadvantage by removing the incentive of bad publicity. If you are a consumer or small business entering into a contract with a big company, you might find yourself wishing you didn’t sign that contract.

An arbitration clause may also subject you to unexpected costs. For example, it could require that your arbitration take place out of state, although a lawsuit could have been filed in the state where you live and work. It may also specify an arbitration procedure with significant, up front costs. These costs will still be lower than those associated with litigation. However, some types of litigation are commonly taken on contingency, and a contingency case often costs the client little or nothing up front.





Alternative Dispute Resolution

9 08 2011

Most people have heard of two types of Alternative Dispute Resolution: mediation and arbitration. Both are used to resolve disputes before or during litigation. Some mediations and arbitrations are required, either by the court, as part of the settlement process, or by the terms of a contract. Alternative dispute resolution processes are also chosen by parties to a dispute as an alternative to litigation, because they believe it will save money, result in a quicker resolution, preserve business or personal relationships, or be less stressful than a lawsuit.

WHAT IS MEDIATION?

A simple definition of mediation is a form of dispute resolution where a neutral third party (a mediator), helps the parties to the dispute reach a resolution. A mediator may take a very active role in the mediation, making suggestions and offering his or her own ideas as the mediation progresses, or a mediator might take a less active role, asking questions in order to help the parties come to their own decision. The parties might be together for the entire mediation, or the mediator might speak to each party individually. Sometimes, attorneys participate in the mediation, and sometimes mediation occurs without the involvement of attorneys.

Generally, a mediation will begin with an introduction by the mediator, followed by opening statements by each party. After the opening statements, the mediator asks questions in order to gather all the information, identifies the issues that need to be resolved, and assists the parties in negotiating an acceptable settlement. A mediation may last for several hours, several days, or several weeks. If an agreement is reached, the mediator will usually draft a document outlining the settlement.

Courts often require parties to go to mediation before a case goes to trial. Mediation is frequently used in highly emotional conflicts, such as divorce and custody disputes, where ongoing relationships make an amicable settlement crucial. Mediation may be used to resolve disputes between family, friends, or neighbors, even where legal action isn’t contemplated. Mediation may be used to resolve a dispute within a community. Some mediators specialize in corporate negotiations and disputes, resolving conflicts where millions of dollars are at stake.

WHAT IS ARBITRATION?

Arbitration is usually a more adversarial process than mediation. In a typical arbitration, a sole arbitrator or a panel of three arbitrators listen to each party present his or her side of the case. Attorneys are often involved, witnesses may testify, and evidence might be submitted. At the end of the process, the arbitrators deliberate and render a decision.

Arbitrators, while not bound by traditional court rules, are often governed by arbitration rules. Arbitration may be used to resolve a dispute because an arbitration clause was included in a contract between the parties, because the parties agreed to participate in arbitration in order to achieve a quicker, less expensive result, or because a mandatory court arbitration program is in place.

Arbitration awards are often, but not always, binding, and while there may be a right to appeal, it is usually limited. It is important to note that where arbitration is mandated by a court, the arbitration award is of an advisory nature only.

Arbitration is especially effective when the matter of the dispute is very complex or technical, and an expert is needed to render a decision. Arbitrators often have expertise in the subject matter of the arbitration, making them better able to understand complicated technical issues. Arbitration is also very effective in situations where the dispute is entirely monetary.





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.