By Eileen Burkhalter Smith 

“Please contact an administrator to unlock the computer.”  This pop-up message gave me a major heart attack recently when it refused to allow me to unlock my lap top right before a closing argument in a jury trial.  The lap top had been working fine, and while I hated having to unlock it every time, I had been a little proud of myself for getting it done pretty smoothly.  I had set up the lap top, screen, and projector in the courtroom the Friday before a Monday trial, and I had actually practiced switching between the devices.  I had handwritten notes on which buttons to push, how to zoom in and out.  Then, inexplicably, the lap top would not unlock!  At the worst possible time!

Anyone experience this?  I think one of the most important things in a trial or deposition is to have a second option.  This applies to evidence and witness questioning, of course, but also to technology.  I was completely panicked because my closing argument involved a video, and I had no back-up for that.  It turns out that I had typed the username wrong, and after I took a second (which felt like 37 minutes) to assess what was going on, I realized my gaffe, and got the lap top going.  But what would I have done if it really was locked?

Not all of us can have the natural ability, like Mr. Venditte, to immediately adapt to what steps up to the plate.  But what we can do is try to anticipate these technology failures (or, um, butter fingers) and have a Plan B.  A dry erase board, writing pad, extension cord, and extra light bulb can be the best defense to these panic attacks--even a friendly opposing counsel might work in a pinch.  Next time, however, I am bringing an Administrator.  Or maybe just an extra lap top.

By Eileen Burkhalter Smith

So, I have just learned that there are rules in hockey about who can fight whom in a fight (the allowance of which is in and of itself an unwritten rule).  Apparently, these rules are not actually written, but they are enforced.  Check out the outrage that happens when someone doesn’t follow them here.

This made me think about the unwritten rules in a trial.  I think we can all agree that we have our fair share of written rules, but would you agree with me that there are unwritten ones as well?  Here are three (a hat trick?) that I think exist based on some recent experience:

1.  Embrace your case.  We all have to be advocates, right? I was surprised recently by seeing someone act almost sheepishly about her position in a case during a trial.  I think this might be effective during negotiations, counsel to counsel communications or in other situations, but in front of the judge? The jury?  I think you have to take a stance and believe it.  If you don’t, no one else will.

2.  Pick your battles.  A trial is different than a written motion where it may be appropriate to footnote or reference every facet of every argument.  In a trial, making a mountain out of a molehill can backfire.  Consider whether your strong dispute about a harmless hearsay statement will make the Judge less likely to give you time to argue your later motion to exclude testimony.

3.  Respect their time.  I think it is also important to edit arguments, witness examinations and even evidence depending on how a case is going.  Has the point been made?  Is it 4:00 p.m. on a Friday?  If the case allows for it, I think it is appropriate to realize that the trier(s) of fact may have made a decision and would appreciate an early end.

These are all case specific, of course, but perhaps we should learn a thing or two from hockey:  don’t run a foul of the unwritten rules; it may leave you short-handed.

By Robert Chapski 

Along the lines of our post from a few weeks ago on metadata ethics and our story in May on "Facebook Ethical Traps", a Chattanooga law firm is being sued after allegedly using as evidence in a divorce case email a client acquired from her husband through the use of spyware.  Stories like this beg the question as to how far lawyers can go to research and use information surreptitiously gathered from email and social networking websites.

By Eileen Burkhalter Smith 

I have a confession to make:  I have been fined by a federal judge for being late to court.  Not only that, my fine occurred at a hearing on motions in limine for a jury trial that started two weeks later.  It gets better:  I was filling in at the last second at the hearing for the partner who was actually going to try the case.  I had not worked on the case, and I was stepping in to handle the motions.   

Let me back up.  My fine occurred essentially because I was late for the motion hearing without “good cause.”  My planning was not ideal:  I flew into the state the morning of the hearing, thinking I had plenty of time to make it to the Courthouse.  I did not.  Especially after I got lost.  Though I kept the Court Clerk apprised of my situation, and she was able to let the Judge know I was running late, he still was not happy.   

After finally getting to Court,  I charged from the elevator, hoping that we were not the only case on the docket, to be greeted at the Courtroom door by the Judge who said “you are in big trouble young lady” as he left for lunch.  I had an excruciating hour to weigh how serious he was about that.  He was serious.  

Before taking up our motions, the Judge asked me to “show good cause” why I had been late that morning.  Though there were one or two additional circumstances, it essentially was my fault for trying to cut it so close, and I told him so.  He found my explanation “not well-taken” and fined me $50.00.  Immediately after he made the ruling, he said “okay, go ahead with your motions.”  It was a quick transition.  We ended up winning the motions, but then I had to call the partner in the case, and let her know about the fine.  

All’s well that ends well, I suppose.  We ended up winning the jury trial, but I will say that that was one of the more stressful motion hearings I have attended.   

Moral of the story:  Keep your cool and fly in the night before!

By Robert Chapski

A recent advisory opinion from the Philadelphia Bar Association says that asking a third party to "friend" a witness on Facebook for the purpose of gaining information about the witness is unethical. 

Facebook, MySpace and the like are often invaluable sources of information when it comes to lawsuit participants, but, as the technology continues to grow and develop, lawyers are going to have to be careful to avoid potential ethics violations.