Case Management

Your opening statement should set the tone for what the jury can expect from you for the rest of trial. Tone has several dimensions. Disposition – whether your presentation of the case will be aggressive or agreeable. Demeanor – are your affable and charming or all business? Delivery – whether you’re engaging or monotonous. How I present my case and myself to the jury changes with each trial and is dependent upon the facts and my arguments. In January, we tried a case in which the parties agreed about how the car-motorcycle wreck had happened. We agreed what the plaintiff’s injuries...

“I still think it would be pretty awesome if we, someday, did a writing blog thingy by posting either paragraphs, or a short legal writing prompt, and saw the various different things that people did with them, and maybe descriptions of why.” This suggestion by one of the guys on LawyerSmack sparked a discussion about doing a writing exercise where we would take a fact pattern or a pre-existing document, create our own (better) variations on it, and share it with one another. So I appropriated the idea and sat down one night to punch out a fact pattern for us. For...

If voir dire is important because it’s the first opportunity the jury has to get to know you, opening statements are important because they are your first opportunity to tell the jury what your case is about. If you do it effectively, you can clue the jury in on the important facts and evidence while capturing their attention. But if you’re ineffective? Well, you will set the tone for a boring experience and lose a valuable chance to enable the jury to connect with your client. Today, we are going to look at three practical considerations as you are working...

In Neil Gaiman’s novel The Ocean at the End of the Lane, he writes: “Adults follow paths. Children explore.” When facing a problem, it is easier for us to follow in the steps of those who have come before us than to explore and seek out creative solutions. But it’s not uncommon that the “tried and true” solutions whose paths we are following aren’t as great as we envision them to be. Have you ever read a franchise agreement or other business contract? Most of them were originally drafted a decade ago. Since then, new contributors have added paragraphs and bullet...

Every day you have tasks that have to be completed. Most of them are not charming or glamorous, but carry some importance nonetheless. There are going to be times when you can barely stomach the idea of writing another report or making another phone call. It can be helpful to reframe those tasks in a productive light that motivates you to complete them. My thoughts on this topic can be read at the ABA Journal’s “Your Voice” feature: Frame those onerous tasks in order to motivate you to act.

“Cognitive space is precious” – when I heard someone use this line the other day, I almost burst out laughing. Note: Random bursts of laughter almost always draw suspicion in a law firm. Nevertheless, it struck me funny, mostly because it’s true. There is only so much critical thinking you can do in a day. You need to save that precious cognitive space for the times you really need it. An article in The Atlantic discusses productivity studies showing that people can focus on tasks for about 50 minutes at a time before needing a 15 minute break to allow their...

For my inaugural appearance on what I expect to be a monthly piece for the ABA Journal, I wrote about the propriety and wisdom of arguing with a judge. I posed this question to several lawyers: “When does something matter enough to argue with a judge about it?” As with all the other times I’ve interviewed lawyers about litigation topics (i.e., voir dire strategy and closing arguments), the answers were interesting and instructive. A friend of mine shared her experience with me about a recent encounter that required her to call a judge’s ruling into question: I recently had occasion to...

You may be a good lawyer, or even a great lawyer. You may regularly achieve favorable results for your clients at mediation or trial. Every party deposition you take may provide impeachment material that will render the plaintiff a disreputable puddle of deceit on the witness stand. But if you aren’t providing meaningful communication and reporting with your client throughout the litigation process, they are going to be displeased with you. This is why it’s important to building touch points into your case management processes. Different Types of Touch Points Touch points are influential communication actions you take that work...

Failures and losing are really unpleasant experiences – is that enough an understatement? In my mind, there are only a few things worse than the failure itself, one of which is dwelling on it and mulling it over. But perhaps even more regrettable than either of those is walking away from the failure without having learned anything from the experience and without taking the time to assess what went wrong. Implementing After Action Reviews into your case management processes can be an effective way to figure you what happened and what might be done differently going forward. What Are After...