By  Brian Malcom

Just in case you missed the bench slap handed down by U.S. District Judge Gregory Presnell recently, here it is.  For all you grammar nuts out there, this is a feast.  Above the Law covered the story this past Monday.  Apparently, the district judge was not impressed when the plaintiff's lawyer filed a response and motion.  Nault v The Evangelical Lutheran Good Samaritan Foundation

There is red ink all over this thing.  This is my nightmare.  It was bad enough when professors did it.  It still stings when partners mark a draft up.  But, the red ink is especially piercing when it comes from a federal judge.

Above the Law reports that the motion was denied for, among other things, "being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible."  Ouch!  The judge also ordered the plaintiff's attorney to re-read the Local Rules and the Federal Rules of Civil Procedure in their entirety.  Here's the kicker: the court even ordered the plaintiff's attorney to deliver a copy of the order and the court's exhibit, which was most likely the marked-up copy of the attorney's motion. 

By Eileen Burkhalter Smith 

I have decided that no matter how many I take, there is always something that comes up in a deposition that I wish I would have considered before we went on the record.  Am I alone in this? If not, here is a short list of my most memorable discoveries…*      

• The Plaintiff has the burden of proof, so generally the Defendant gets to take depositions first.
• Your witnesses are deposed at your office.
• Non-parties get a witness fee (by statute in Tennessee) and experts are paid for their time during the deposition. 
• For Federal cases, there is a time limit for depositions.  In Tennessee State Court there is not. 
• Generally, in State Court, a deposition is a public proceeding and anyone not a testifying witness may be present.
• “Late-filed” exhibits are very rarely collected.  Get these BEFORE the depositions.
• Depositions should not always be considered a way to get all the information.  Consider what you are actually trying to do with it.

By Michael Gardner

Do you want to impress the partner you’re working for and win your client’s affections?  I know you do; I would give my left pinky toe to get a glowing review from a partner who celebrates birthdays more than he/she compliments associates.  The problem is, as young associates, we don’t always come up with that nugget of pure golden wisdom in the midst of a trial, deposition or conference call.  But, we can pick up those nuggets (and some unanswered questions) and repackage them to the partner/client with some creativity and original thought as the “post-mortem memo” and come out smelling like a rose.

I recently wrote one for a client following a favorable settlement in a products liability suit about one month short of trial.  We wanted to go the extra mile by writing the post-mortem memo, the purpose of which is to summarize the case and make recommendations to the client going forward.

In retrospect, I wish: (1) that it was my idea (it wasn’t.  Had I suggested it to the partner rather than the other way around I think she would have been pleasantly surprised by the initiative); and (2) that I had planned to write the memo all along (I hadn’t, it never occurred to me.  Taking notes in the heat of battle whenever we came across a good practice tip would have made writing the memo much easier).

One important element of a post-mortem memo is that it is non-billable.  That way, the client doesn’t think you are just churning the file after the fact.  Before you run screaming for the hills, keep in mind the potential upside.

As I see it, a good post-mortem memo could:

1. help you reinforce the lessons you’re picking up along the way and show the partner/client you were listening;
2. let you spend some time creatively thinking about solutions to your client’s problems (the non-billable side gives you the freedom to relax and mull it over.  It could be borderline fun – like Sudoku);
3. convince the client to send more work (this could be a “separate you from the competition” sort of project).  The client’s contracts and policies are fertile ground for post-mortem suggestions; consider suggesting helpful revisions. 

One caveat, I sent my first one to the client about two weeks ago, so I have no idea if the business development part pans out with any regularity.   Add a post if you have found them to be worthwhile (or not) or if you have any insights you want to share. 

By Robert Chapski 

We have all been there.  Sometimes the judge rules against you even when you spent days working on the fool proof brief and know the law better than anyone could (or should).   One lawyer learned the hard way, though, that it never pays to show your disdain for the Court. 

Who really knows what happened in the case of a Georgia lawyer who was found in contempt after what the Court perceived to be a disrespectful reaction to a ruling. 

Nevertheless, better to err on the side of caution and take whatever ruling a court hands down with a poker face.  There are other venues and other battles to fight. 

By Brian Malcom     

Some things stand the test of time.  A few such things that come to mind are diamonds, love and Twinkies.  Another is good advice.  Larry Childs, a litigator for more than 30 years, wrote a letter as a 3L to his 1L sister.  Larry thought about the things he had learned about legal writing in law school.  He put pen to page and gave his sister some tips.  Three decades later, the advice on legal writing is still sound and relevant.  The letter is below.  Pay close attention to the first three rules and the last sentence. 

By Eileen Burkhalter Smith

Obviously, getting the work in the door is the most important thing to do in any law firm.  But, how can young lawyers help to do this if they don’t have the contact with the potential client, or the expertise in the area of law?   

I heard a young lawyer being complemented recently on her role in getting a client in the door.  What did she do? Among other things, she fielded an after-hours call for research and got it done immediately. (I can only assume that this research had to have been “non-billable” since the client wasn’t even a sure thing.)   

Next, she provided a summary of the work she had done in a memo that was used by the partner (without any re-work) in a call prior to the client meeting.  In other words, she did good work.   

Finally, she was “on-call” at the office during the client meeting to field specific follow-up requests that the potential client raised at the meeting.  This young woman did not actually attend the meeting with the client, but her significant role in this success was noticed, acknowledged, and communicated to other colleagues.           

By Eileen Burkhalter Smith  

I think a big challenge to a young lawyer in taking any deposition is knowing what you are entitled to “discover” through questioning and document review.  This is especially difficult with expert witnesses who often have files and documents you may not have seen prior to the deposition.  

I once had an opposing lawyer, one who had been practicing much longer than me, get very irritated with me when I asked to review the expert’s file during a deposition.  The expert’s file was lengthy, and he had referred to it throughout the deposition.  Even though we had discussed a few pages in the file, I asked to look at the whole thing, page by page.  The opposing lawyer was shocked and said “do you want to see what’s in his wallet, too?!”  I was surprised by his obvious frustration, and I believe my response was “uh, no, that is okay.”  

At the time, I knew I was entitled to see the file, and I could not figure out why my opponent was so exasperated.  The rules don’t require me to prove that this information is relevant, and it certainly isn’t privileged.  I think if the expert brings it into the deposition, I am entitled to see it.  Next time, I am going to say, “Sure.  He brought it into the deposition, so hand it over!”