Friday, October 14, 2011

How Do I Prepare for a Deposition?

I've spent a significant amount of time this week working with a client who is preparing for his deposition.  It should be a relatively short deposition in a small business litigation case (one small business suing the other over the theft of trade secrets).  There are not a lot of documents, there is not a lot of money at stake, but for the client, this is of course the biggest event to come into his world in a long time.

The preparation has included reviewing the documents in the case multiple times, and as most of the documents were generated by him, the client is very well-versed in their contents.  But even though they are his documents, he still feels nervous that opposing counsel will "get one over on him" or "trick" him into answering things incorrectly.

The most important thing for him to understand, which is often tough for most clients to understand, is that they are actually an expert when it comes to a deposition.  The opposing lawyer didn't live through the last few years of the business, didn't draft the documents, didn't talk to the customers on a daily basis and generally only knows what he knows about the documents he has been provided and the information he received from his clients.  But for some reason, the clients always believe that an attorney can "trick" them into wrong answers at a deposition or on cross-examination at trial.

The deposition also serves as a great way for the client to get accustomed to the style of the opposing attorney, how they speak, how they react, their general tenor and demeanor.  Although most cases settle before trial, clients who have been deposed tend to be much more comfortable at trial if they have been deposed previously in the case by the attorney.  They feel they have some insight into what the opposing attorney will act like and ask and will feel more comfortable with them.

For my clients, it's important to realize that they, not the other attorney, are the expert when it comes to their own testimony.

Wednesday, October 12, 2011

What's The Point of a "Paperless" Office

Rather than going out and enjoying my Columbus Day, I was in my office putting together a motion for New Jersey state court.  Despite the advances of the various court systems (especially federal courts), the rules in New Jersey still require that reams of paper are used for motions.

For me, the irony is that all of the documents are prepared on the computer, electronically stored and all I am doing is hitting the Print button on a host of .pdf documents.  There were so many of them that my printer took a break in the middle of the day to cool down.  And after all that printing, I don't even have a hard copy of the papers in my office, my electronic copy suffices just fine for me.

But for the courts, I get to send down 2 copies of my Notice of Motion, 3 copies of my Proposed Order, 2 copies of my client's certification and 2 copies of my certification in support of an award of counsel fees.  Then I get to add a second package to the court that includes a courtesy copy of the papers for the judge who will hear the case.  After all that, another 2 copies are sent to my adversary.  Thankfully, my client is relatively tech savvy, so his copy is just emailed to him for his files and then shared with him via our extranet.

After all the copies, the binding, the exhibit tabs, cover letters and other papers are stuffed in the Federal Express envelopes and I finally enjoyed a few minutes of my Columbus Day.  That enjoyment lasted less than I would have liked because the next day, I got a call from the Court that they had received the Judge's courtesy copy in the clerk's office and apparently the original, with fees and ancillary filings, was sent to the Judge's chambers by accident.

All that paper and misdirection, which could have been simply resolved by a little e-filing.

Friday, October 7, 2011

The Devil Is In The Details

It's interesting for all the money that clients pay their lawyers, it is sometimes the most basic details that go overlooked.  I have a case in state court where I've now twice received documents that have the wrong caption on them.  Now obviously, the client has paid their attorney money to prepare documents, the first one was relatively short at 5 pages, and the second one was longer, at 12 pages long, but both of them containing a caption that was for a related case that was decided two years ago (the parties were reversed in that case, i.e., Plaintiff was Defendant in the old case).

Now I understand that the attorney worked on that case a couple years ago, but I would think that at some point they would take a second to notice that they were using a backwards caption at the top of their documents.  For people who have been involved with the case for a few years, I guess they take the caption for granted and just open the same template over and over again when drafting new documents.

The interesting twist came when we got to court and the judge was trying to figure out what the documents actually related to.  In a case where the parties were reversed, the judge was confused and I actually watched as the attorney sat there and re-wrote the caption and case numbers in hand on the documents before handing them to the court.

Probably the most interesting thing to observe was the look on the client's face as this was all happening.  Instead of a fast court appearance, we spent nearly half an hour trying to figure out the source of this document confusion and waited for the papers to be "corrected" by hand.  I'm sure in the client's head, they were seeing the extra costs they were paying in billable hours to correct a simple mistake that was not their fault.

Since it happened, I've been wondering what the attorney did as far as collecting on those fees, if at all.  I know if I was the client, I would be asking for a discount on the preparation of an incorrect document as well as all the wasted time in court.

Wednesday, October 5, 2011

You're An Attorney, Like George Clooney

The other day I had an entertaining encounter with another individual in the courthouse.  The gentleman came up to me and to paraphrase:

Gentleman:  Are you a lawyer?

Me:  Yes, I am.

Gentleman:  Like George Clooney in that one movie?  Mark Clayton?

Me:  Michael Clayton.  I'm a lawyer, but what he did was different than what I do.

Gentleman:  Yeah, and you don't look like him either.

At that point he walked away and I wasn't sure what to say next.  I mean, I know I don't look like George Clooney, but was that really necessary?  It did put a big smile on my face before I went in to see the judge...

Monday, October 3, 2011

The Paperless Law Office

As you read the news, blogs and other information sources these days, the trend is for companies, and law firms specifically, to move towards the "Paperless Office" concept, with all of your important paperwork being converted to electronic format and stored digitally.  Despite this supposedly unifying theme, it seems like everyone does it in a different way.

For me, the workflow is simple and I've been slowly working on it for a few years now to the point where almost all of the documents that come across my desk are already in electronic format.  Emails?  Obviously, already in electronic format and there's no need to print them out.  Facsimiles?  Using an electronic fax service, I don't have a fax machine, but rather, all of my faxes are converted directly into Adobe .pdf format and are emailed to me.  Voicemail messages?  No need for those old message pads anymore, voicemails are converted to .mp3 and emailed to me.  Sensing a trend yet?

The only real document that comes into the office in a "hard" format are letters or other documents from the client.  Those documents are quickly digitized through a Fujitsu scanner (either desktop or portable version) and can be given right back to the client or just shredded if it's a letter from an opposing counsel.  When it comes to discovery, all that needs to be done is to take the digitized files, place them on a CD-ROM, and send them off to the opposing attorney.

The motivation for this posting?  I was in court the other day with my ipad and was reviewing documents for my case and then sat down with opposing counsel to discuss the matter.  Opposing counsel looked at my ipad and then immediately declared that she runs a "Paperless Office" and prefers to work electronically on her cases.  Sounds great to me, we're both in the same boat.  But then she proceeds to remove a very large file of papers from a very large briefcase and spends a bunch of time looking for a document that she swears is in there somewhere (apparently it wasn't, it was on her secretary's desk according to her).

When we appeared before the judge, the entire courtroom was treated to the elevator music in our heads as we all waited for the attorney to locate a document her client had given her (which, ironically, supported my client's position in the end).  After watching my adversary clutter up an entire counsel table and then spend time trying to put everything back together, I'm still wondering what part of her office is actually "Paperless" or virtual.

The largest hurdle to going to a paperless office is the self-confidence to appear in court with your tablet or laptop and trust that it will work and you will have all of your information with you.  For me, I still sometimes appear with a "safety net" in the form of my argument notes printed out or copies of the important documents or orders in the case in my bag. 

After years of appearing in court, I still cling to this outdated notion that I need them with me, but am hoping to finally conquer that hurdle soon.  I take solace knowing that I no longer need to drag a large bag from courthouse to courthouse...