The new issue of Litigation Magazine includes an article on classical rhetoric and its value to trial lawyers by JoAnne A. Epps (a professor and dean of the Temple University Beasley School of Law), Ronald J. Waicukauski (of Price Waicukauski & Riley, LLC, in Indianapolis) and yours truly. Click below to read the full article, and you'll find all the classical rhetoric you need at Amazon.com.
In what is being called a “bombshell decision”, Judge Shira A. Scheindlin of the U.S. Southern District of New York has issued a harshly worded order reminding litigants and attorneys of their duty to preserve electronic documents as soon as they reasonably expect litigation to commence. Lawyer Michael Hoenig has a helpful piece in this week's New York Law Journal about the case, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC.
Scheindlin, an expert in electronic evidence, ushered in a new era several years ago with a set of rulings known as the Zubulake line of decisions, which set forth guidelines concerning the protection and availability of electronic evidence during discovery. In her new ruling, the judge has penalized litigants, criticizing their failure to follow proper procedures, and offering a blueprint for how lawyers should deal with issues pertaining to the protection of electronic evidence.
In particular, Scheindlin’s ruling addresses the issue of spoliation, as several documents were either lost or destroyed. The case involved 13 plaintiffs, all of whom were found to be negligent in meeting their electronic discovery obligations and were punished with monetary sanctions. Additionally the judge ruled that six of these plaintiffs had engaged in grossly negligent actions, with the result that these six plaintiffs were subjected to an "adverse inference instruction," under which the jury will be instructed to presume that the destroyed documents would have harmed the plaintiffs' case had they been made available. Scheindlin acknowledged that giving an adverse inference instruction was a serious blow, but concluded it was warranted because the failure to comply with the obligations established under Zubulake were so pervasive as to rise to the level of gross negligence.
Hoenig predicts that "Pension Committee, initially, will likely be viewed by many as a burden-imposing treatise, intrusive in the breadth and scope of the obligations spelled out by the court. Yet, because of its declarative clarity, the decision can be used by responsible lawyers to help fashion a reasonable template for proceeding to litigate in the electronic records era."
Save the date! The ABA Litigation Section has scheduled the next annual Litigation Institute for Trial Training (LITT) for July 9-10 at the Loyola University Chicago School of Law. You can register on the ABA website starting in February. I and my colleagues at the ABA created LITT to offer a small group of attorneys an intensive, two-day training experience with outstanding trial lawyers and jurists from around the country. Limited to just 40 participants, LITT 2010 will likely fill up quickly. The faculty this year will include, among many other fine people:
The Honorable Marvin E. Aspen
Kim J. Askew (K&L Gates, Dallas)
James J. Brosnahan, (Morrison & Foerster, San Francisco)
Jo-Ellan Dimitrius (Dimitrius and Associates, Pasadena, California)
The Honorable Mark A. Drummond
Steven Susman (Susman Godfrey, Houston)
Lorna G. Schofield (Debevoise & Plimpton, New York)
Robert L. Rothman (Arnall, Golden Gregory, Atlanta)
Terence MacCarthy (Federal Defender Program, Chicago)
Feel free to contact me if you have any questions about the program.
This article in the November issue of Your ABA provides an overview of The 12 Secrets of Persuasion, a book I co-authored with JoAnne Epps and Ronald Waicukauski.
The US Courts updated their Judicial Facts and Figures to include 2008 numbers.
Judicial Facts and Figures is a set of tables containing historical caseload data primarily for the fiscal years from 1990, 1995, 2000 and 2004 through 2008. The tables include data on the U.S. Courts of Appeals, the U.S. District Courts, and the U.S. Bankruptcy Courts.
In The 12 Secrets of Persuasive Argument, JoAnne A. Epps, Ronald J. Waicukauski and I identify twelve fundamental issues in formulating an argument; some of which one tend to think about less than others.
While most of us are aware of a few basic tips on successful arguments, like gathering appropriate, convincing evidence, focusing your goal, and maximizing delivery, it’s also important to pay attention to some of the more subtle elements of your particular situation. Strategy involves more than fact-gathering; there is the importance of emotion, style, and an engaging manner of speaking. If you want to set yourself apart from every other litigator in the field, you need to be keenly aware of the subtleties and complexities of the modern persuasive argument.
One of the things I think that’s ultimately most important in relaying an argument is the way you tell it. You can have all of the logical reasoning and unquestionable facts you want, but an audience won’t be persuaded without a little something more. Although a lot of us think of lawyer’s presentations as a performance, we need to really think about what that means. You need to appear as a personality, someone the audience can relate to and be interested in. You don’t have to tell jokes (although you could), but it helps to make your argument more personal. Relate the issue to yourself, or make allusions that your audience can follow, too. A jury is going to respond much more favorably to an advocate they perceive as being relatable, rather than some coldly logical litigator – and that favorable climate is going to make them a lot more receptive to any argument you’re going to make.
Ultimately, remember that you only get one first impression – so whatever tactic you choose to take in your presentation, be energetic, enthusiastic, and mindful of your objective.
I was pleased to see that Litigation Magazine reviewed Anatomy of a Trial and called it an "excellent book for trial lawyers, young and old alike." Many thanks to Mark A. Neubauer.
The new edition of Discovery Problems and Their Solutions--published by the ABA and co-authored by Judge Paul Grimm, Charles Fax and myself--touches upon some important advances in the field of discovery--in particular, some key electronic discovery amendments to the Federal Rules of Civil Procedure, and the legislative and judicial reactions to those changes. There are, of course, many changes afoot in this area of the law; litigators face a constant learning curve as law contends with new technologies and situations. While electronic data is often easier to access than paper records that can be lost or easily destroyed, the sheer volume of data in many cases makes gleaning meaning from that data an immense challenge. The new edition of our book seeks to help attorneys work through that hurdles that often must be cleared in the discovery process as it is known today.
I often call discovery “the central battleground of the case.” Most civil lawsuits in federal court end before trial, either by pretrial settlement or on dispositive motion. In either case, the fruits of discovery can be critical to the outcome. The need for analytical and strategic guidance on problems in discovery is heightened by the fact that much of it is handled by relatively inexperienced lawyers. Anyone who aspires to be a competent civil litigator must master the rules of pretrial discovery taking into account the new amendments surrounding electronic discovery.
I am pleased to announce that the American Bar Association (ABA) has just released a new book I co-authored with JoAnne A. Epps and Ronald J. Waicukauski entitled The 12 Secrets of Persuasive Argument. It is now available at the ABA website.
The American Bar Association (ABA) has just released the second edition of Discovery Problems and their Solutions, a book I co-authored with Paul W. Grimm and Charles S. Fax. It is available for purchase on the ABA website.
At a recent ABA annual meeting in Chicago, I had the pleasure of moderating a session on ethical issues in the legal industry. The Maryland Daily Record did a nice job of writing up the session in an article entitled, ABA panel tackles 'ethical minefields.'
They don’t teach storytelling in law school, but the skill goes hand in hand with trial advocacy, especially when it comes to closing arguments. Figurative language is often key to the telling of complex stories, in that it simplifies and helps listeners visualize abstract concepts and large amounts of information. A case in point: the defense attorney's closing argument in the trial of ex-Rep. William Jefferson (D-La.). Last week, the lawyer repeatedly called the government's a “lemon of a case.” (As reported on in The Blog of Legal Times). While the “lemon” is certainly not the most unique of metaphors, people are quick to understand the idea--and it's a metaphor that you can develop. The attorney accuses the government of taking a bad case and "squeezing lemons" to "make lemonade", but when it comes down to it, a lemon's a lemon. It may be cliche, but it's a memorable verbal hook on which to hang the entire prosecutorial effort.
For closing arguments, I am partial to using figurative analogies. Unlike literal analogies, which compare cases that are similar in relevant characteristics, a figurative analogy is a kind of story, sometimes a metaphor, developed to compare unlike characteristics. Listeners, judges or juries often create their own “stories” or themes in making decisions. A figurative analogy in a closing argument can help the listener accept your point in the terms of a narrative, thus allowing him or her to subconsciously come to the conclusion you desire.
When a listener believes he or she has come to a conclusion independently, your argument and case theory become more acceptable. When you use a figurative analogy, it is important that you relate the facts of your case to the analogy’s elements. Frequently, analogies are left undeveloped; hence, their full effectiveness is lost. There are a number of tried-and-true figurative analogies passed among trial attorneys. Don’t be shy in using such material. As defense counsel, I relied on one familiar analogy in a recent criminal case (See Anatomy of a Trial for further details) to illustrate the concept of reasonable doubt and bring up the subject of holes in the government’s case:
"Let’s assume you go home tonight and you have a box, and you put a cat in the box and a mouse. You close the lid. You come back an hour later, the mouse is gone. One could firmly believe that the cat ate the mouse. What if you come back later and you put the same – it has to be the same cat this time. You put the cat in a box and the mouse, close the lid, come back an hour later again, and there are holes in the box. No longer would you firmly believe the cat ate the mouse.
And I want to talk to you now about some of the holes in the government’s case, about the burden they failed to meet.”
Such analogies can hold the jury’s attention and encourage your audience to envision the case in terms that are favorable to your client. The parallels between the case and the analogy may surprise the jurors and cast the decision in a new light. A figurative analogy is a general comparison, a broad-brush image of the case that will remain in the jurors’ minds and hopefully shape the decision in your favor.
When used effectively, figurative language, which might seem trivial or window dressing (such as the repetition of a metaphor), when combined with a strong grasp of tone, style and language, can be very persuasive. In a closing argument, reliance on vivid language powerfully and effectively communicates the message you want your listener to receive. Give consideration to the arrangement of your works, developing a rhythm and injecting appropriate similes and metaphors to help enrich your style. We remember best what we hear first and last.
Paul Mark Sandler is a trial attorney who has developed a national reputation for successfully representing many notable clients in trial and appellate courts. He is a partner at Shapiro Sher Guinot & Sandler in Baltimore.
The 12 Secrets of Persuasive Argument
"This book will give all lawyers the guidance they need to become effective advocates. Whether you have just passed the bar or have been practicing for 30 years, this book will help refine your persuasive skills." -- from the Foreword by Carolyn Lamm, President of the American Bar Association
Discovery Problems and their Solutions, Second Edition
"An instant classic that is a must for any litigator's bookshelf." — The Daily Record (Co-Author)
Anatomy of a Trial: A Primer for Young Lawyers
Anatomy of a Trial follows the course of a single star-studded trial to illustrate skills that are crucial to any courtroom advocate.
Raising the Bar: Practice Tips and Trial Technique for the Young Maryland Lawyer, 2nd Edition
"Filled with practical advice and concrete examples of proven strategies and effective techniques." – Dean Karen H. Rothenberg, University of Maryland School of Law
The Winning Argument
Reveals 12 essential characteristics of a winning argument and time-tested persuasive techniques that are fundamental to legal advocacy. (Co-Author)
Model Witness Examinations
A pioneering book, Model Witness Examinations vividly illustrates how to handle the most common evidentiary issues every trial lawyer faces. (Co-Author)
Pattern Examinations of Witnesses for the Maryland Lawyer, 4th Edition
Offers over 60 examples of real-world direct and cross-examination situations. (Co-Author)
Maryland Discovery Problems and Solutions
A handbook for Maryland attorneys navigating a range of discovery problems. (Co-Author)
Pleading Causes of Action in Maryland, 3rd Edition
THE starting point for drafting virtually all initial pleadings in Maryland and a MICPEL best seller. (Co-Author)
Appellate Practice for the Maryland Lawyer: State and Federal, 3rd Edition
Maryland’s most authoritative book on appellate practice. Includes in-depth interviews with appellate judges and DVD videos of actual oral arguments in appellate courts. (Co-Editor)