February 22, 2012

Reluctant Facebook Plaintiff Ordered to Testify

Despite her efforts to avoid it, Seattle seamstress Angel Fraley will have to testify in a lawsuit accusing Facebook Inc. of violating her privacy.

On Tuesday U.S. Magistrate Judge Paul Grewal in San Jose denied Fraley’s motion for a protective order that would have kept her from testifying in the purported class action first filed in California state court and moved to the Northern District in March 2011. Named plaintiff Fraley claims in the suit that Facebook used her image and name to advertise products to her Facebook friends without her permission. But Fraley doesn’t want to testify, saying to do so would violate her privacy and embarrass her…Read more >>

February 22, 2012

Megaupload Founder Kim Dotcom Now Free on Bail

A New Zealand court has granted bail to Kim Dotcom, the founder of file-sharing site Megaupload. Dotcom, born Kim Schmitz, was arrested last month on many charges stemming from the operation of Megaupload, which was shut down by legal authorities (including the FBI) for encouraging piracy. Read more >>

February 22, 2012

Online Privacy: Facebook Wins Suit Accusing Third-Party App Maker of Spamming Users

Facebook has won a suit that accused Power Ventures of accessing and storing users’ login data without their permission. A federal judge granted Facebook’s motion for summary judgment, writing that the defendants circumvented Facebook’s technical barriers and accessed the site “without permission.”

February 21, 2012

LAWYEROLOGY! Group Now Open on LinkedIn – Welcome to The Revolution

Considering the fact that I recently posted an article about taking advantage of LinkedIn marketing tools, it seemed appropriate to visit the site and explore whether or not I was making use of all of the cool features it has to offer. I am a member of several groups on LinkedIn, however, I had never started one myself. So yesterday I started the LAWYEROLOGY! LinkedIn group.

The LAWYEROLOGY! group is a LinkedIn group of professionals interested in the practice of LAWYEROLOGY! — the art and science of being a lawyer. As old as the legal profession is, the practice of law continues to evolve daily and my hope is that the LAWYEROLOGY! group will be a place where cutting edge legal practice, marketing and technology discussions will take place.

The group is open to all LinkedIn users. There is no requirement that the user be a lawyer to join. LAWYEROLOGY! is more than just legal knowledge. Being a trial lawyer today involves many other areas of study including, but not limited to (sorry for the legalese), socialogy, psychology, cognitive science, communications, advertising, marketing, philosophy and even military tactics. Look for an article in the future on how I have applied military strategy from the likes of Sun Tzu to General George Patton to the practice of law.

I hope all who join will enjoy the discussions within the group. All members are free to begin and contribute to discussions. To join the LAWYEROLOGY! LinkedIn group, click here and welcome to the revolution!

February 20, 2012

Litigator Tip: Pay Attention To Everything You Do In The Courtroom, The Jurors Certainly Will Be

Ever get that feeling that you are constantly being watched in the courtroom? It’s not just a feeling, YOU ARE. I learned this lesson years ago in a product liability case we took to trial in St. Louis. The trial resulted in a defense verdict. Yes, I said it. Defense verdict. Every once in awhile trial lawyers do actually lose, even if they don’t like to talk about it. Gerry Spence aside, any trial lawyer that says he has never lost a trial probably hasn’t tried too many.

This being a state court trial, after the verdict, our investigator was allowed to interview the jurors. Among many interesting comments was one specifically directed at me. One of the female jurors commented that I needed to be nicer to my staff. This was based on her one observation of a ten second moment in the trial. We were looking for a particular exhibit at the time and I was telling my paralegal to quickly go to our backup exhibit box and pull the exhibit. At the time, a witness was on the stand being examined by my colleague and we were seated at the counsel table. I spoke to her at a level that was definitely not audible to the jury, however, the juror had noticed my demeanor and did not think I was speaking to my paralegal appropriately. The fact that we could not find the exhibit was not the paralegal’s fault and neither of us thought anything of the exchange at all. In our minds, we were simply dealing with the situation, but my urgency was mistaken for disrespect by the juror.

Ultimately we discovered that the trial was lost over a fairly technical engineering issue that had nothing to do with this exchange, but I learned a valuable lesson. While I find the research claiming that jurors vote for the party they “like” to be inconclusive, all things considered, I would rather be the lawyer the jurors like.

A word advice to new litigators and a refresher to the warhorses: never forget that you are always under the microscope in the courtroom. This is true even if the jury should be focused on something else and even when you are sitting at a table removed from the action. If you are in the courtroom, you will be watched. You may be the most discreet nose picker in the world, but if you do it in the courtroom, it is certain that somebody is going to see it.

December 29, 2011

Trial Tips for Personal Injury Lawyers

Depending on the jurisdiction personal injury lawyers representing plaintiffs from trucking cases to railroad accidents and products cases should consider per diem damages arguments. In a recent case we tried in Arkansas, Reagan v. Dunaway Timber, we used a version of the per diem argument and the jury awarded $7,000,000 to our client.

A per diem argument simply argues for damages based on an amount per day for the rest of the plaintiff’s life. We modified this traditional approach to use what I referred to as the “reverse per diem.” In other words, ask for a number for damages, then divide it over the plaintiff’s life. For example, in the case of one beneficiary who had lost her husband, we asked for $2,000,000 for one element of damages. In the rural venue where the case was tried, this was considered very high, especially in light of the fact that our total request was in eight figures after adding all elements of damages. However, using the reverse per diem, we lessened the shock factor of asking for a high number. The decedent had a life expectancy of an additional 30 years, or 10,950 days. In closing we argued that a $2,000,000 award amounted to less than $200 dollars a day to go through life without the husband our client deeply loved and relied on for the last 20 years. It hardly seemed like enough after we did the math.

The variations of this approach are endless, but remember to research the law in the jurisdiction where your case is set to be sure per diem arguments are permitted before trying this. Improperly using a per diem argument may get you a mistrial or reversal on appeal.

http://www.smctriallawyers.com/resources/

January 17, 2012

Lawyerology: Will you evolve to meet the challenge of litigating cases and improving your business in the Information Age?

Do you know what Lawyerology is? If not, just “Google it”. With the new year comes a new opportunity to resolve ourselves to not only improve our personal lives, but to also take another step in the perpetual quest to be better trial lawyers and better business people. Although at times the law may seem static,unyielding, even archaic, the environment in which we, as trial lawyers,practice law is constantly evolving. The millennial generation now represents the largest percentage of our population. As the population changes and evolves, so do our potential clients and the members of our juries. If trial lawyers do not evolve with that changing environment, victories inside and outside the courtroom will become more and more difficult. This ever changing battlefront is one of the greatest rewards and challenges of being atrial lawyer. While we can go for years,even decades, without a change in the letter of the law, we are always adapting and changing our methods and strategies for landing and litigating cases. Continue reading →

January 31, 2012

I’m A Lawyer, Not an Actor!

I am sure every lawyer has watched a legal movie or two where they were moved by an actor’s performance in the fictional trial. In my case, a few come to mind: Matt Damon in The Rainmaker, Matthew McConaughey in A Time to Kill, Paul Newman in The Verdict and, of course, Tom Cruise in A Few Good Men. Why are these actors who have no legal training and are certainly not trial lawyers so persuasive? The simple answer: that is what they are trained to do. All good actors are persuasive, believable and, most of all, REAL. Legal training is not required to develop any of those characteristics, talents, or skills. In fact legal training, including law school, internships and the daily practice does little, if anything, to develop those skills at all. Please do not shout “WHAT ABOUT TRIAL ADOCACY CLASS.” Regardless of how innovative trial advocacy classes can be, they are still primarily taught by lawyers. If there are trial advocacy courses taught by acting teachers, please comment and point them out. They are few and far between. The thing is, being a trial lawyer is an art, not a science and training in the arts is an invaluable component of the training of an effective trial lawyer. Some of you are now probably thinking or saying “wait a minute, I do just fine and I have never had any theatrical training!” I am not saying that one cannot be an effective trial lawyer without theatrical training, what I am saying is that theatrical training will help make any trial lawyer more effective. I am speaking from first-hand experience on this having spent nearly two years at the Lee Strasberg Institute in New York City before even applying to law school. I credit that training with the development of many of the skills I use in the courtroom to this day.

Among the things I learned: poise, timing, speech, movement, but most of all the training taught me to be real on stage. Even trained actors cannot be persuasive if they do not truly feel what they are trying to convey. We are persuaded by and relate to the best actors because they honestly feel emotions and believe in what they are saying. I do not want to digress into acting instruction, but yes, it is possible to really feel the emotions and really believe what you are saying as an actor, regardless of whether those emotions and beliefs are held by the “real you.” Suffice it to say that there are numerous techniques to accomplish this goal so that even actors playing despicable characters with deplorable beliefs can convey real feelings. The feeling you get when watching an actor who is just faking it is the same feeling that jurors get when they see a trial lawyer that is not being him or herself and being real in the courtroom. All of the trial lawyers I know truly believe in their clients’ causes, so that is the easy part. The tough part is trusting those beliefs and trusting ourselves when we step in front of a jury.

I do not mean to dismiss any natural talents for persuasion that any of us have, but I am certain that my theater training has helped me magnify that talent in the courtroom. So take an acting class. What do you have to lose? Your dignity? If you are worried about embarrassment and what others think of you or the causes you represent, then you are already doing a disservice to trial lawyers. Besides, if you are a trial lawyer, you are among the least respected professionals in the eyes of the public anyway. Whether good or bad from a professional standpoint, I speak my mind and never try to be anything but myself. Plenty of four letter words have probably been used to describe me, but I venture to say FAKE has never been one of them. Success flows from the failures of trial and error. Trial, error, critique and trial again is what acting class is all about. Ever heard of rehearsal? If you are afraid to even flap your wings, you are never going to fly. It is not going to make you a worse trial lawyer, so why not start flapping?

Follow the links below to see the movie clips mentioned in this article.

A Few Good Men: http://smclaw.tv/wQJDAg

The Verdict: http://smclaw.tv/vZ58AP

A Time to Kill: http://smclaw.tv/zc0NT4

February 8, 2012

Tip For Personal Injury Lawyers

As I write this post, I am headed to Beaver Creek to speak at a seminar for the Consumer Attorneys of California. Speaking in any public forum is something that all trial lawyers should do as much as possible. Over the years I have spoken at the Missouri Association of Trial Attorneys annual conventions, the American Association of Justice‘s annual and winter conventions and Torts Made Perfect in Las Vegas among others.

Public speaking has helped me hone numerous skills that provide a benefit every time I step in front of a jury. Learning to be yourself in the courtroom is one of the most important lessons any trial lawyer can learn. You will always be more persuasive being yourself. Jurors can spot a fake, so do not let it be you. The comfort and confidence that comes with experience speaking in front of others is an integral part of being yourself in front of the jury. In my practice involving complex products cases, railroad accidents and trucking accidents, it is not unusual to have only one or two cases go to trial a year. Personally, I feel that I need to be speaking to groups of people persuasively far more often than that if I want to continue to improve.

Public speaking also provides great training for voice and movement. Movement in the courtroom can be limited by the particular judge, but in those cases where it is not, I very rarely stay in the same place when addressing the jury and I never stay behind the podium. Moving around when addressing a group is important and speaking at legal seminars is a safe place to practice getting comfortable with movement. The same is true of voice. Look for more postings in the future on these and other skills that will be greatly improved by public speaking and the benefit to your business in terms of case generation that come along with it.

Finally, do not think because you are not “asked” to be a speaker, that you cannot be invited to speak at legal seminars. How can you do it? JUST ASK. Many of the groups putting on CLE courses are happy to have new speakers and, more often than not, will be looking for someone when you ask. You will have to start small, but who cares? The benefit is the same and if you continue and improve, you will be asked to speaker at larger conferences. I have been speaking at CLE seminars for years and this is the first year that I was asked to speak on the main advocacy track at AAJ’s winter convention this month in Phoenix. So it takes time to work your way up, but the benefits to you in the courtroom and for your business are certainly worth it.

Upcoming Speaking Engagements:

Consumer Attorneys of California: Cutting Edge Depositions of a Corporate Representative, Beaver Creek, CO February 9, 2012

American Association of Justice Annual Convention: Technology With Depositions, The Biltmore Hotel, Phoenix, AZ, February 10-15, 2012

AAJ’s The Jury Bias Model 2™: The Start of the Revolution—Applying the Principles from Discovery to Closing, Aria Hotel in Las Vegas, NV, March 30-31, 2012

Torts Made Perfect: The Power of Technologically Advanced Presentation Software, The Wynn Hotel inLas Vegas, NV, April 19-20, 2012

American Association of Justice Annual Convention, Chicago, Illinois, July 28 – August 1, 2012

February 10, 2012

Tip For Trial Lawyers: Do Not Discount the Importance of CLE

Among the various niches and specialties of the legal profession, trial law is certainly near the top of the list in rapidly changing areas of the profession. This is true largely because of the prominent creative element inherent in being a trial lawyer. As discussed in previous articles, being a trial lawyer is an art, not a science. Art is ever-changing and evolving as are the techniques and tecnologies we use in our profession. In this evolving environment, trial lawyers must diligently keep up to date on what others in the profession are learning and implementing. Some may say that CLE programs are simply boring, mundane requirements that we all have to suffer through. Others insist that they are merely a platform for shameless self promotion where “big shots” pat themselves on the back and tell war stories in hopes that the attorneys in the audience will refer cases to them. While there is some true to both of these opinions, there are many worthwhile CLE programs where trial lawyers can truly learn something useful to their practice.

Yesterday, I presented for the first time at High Impact’s ski CLE in Beaver Creek, Colorado. At the end of the day, one of the attendees mentioned that every time he had attended, he learned one or two things that helped him in his practice. He also said that if he could even learn one thing at a CLE that helped him win a case, attending the entire program would be worth it. The High Impact CLE is certainly one that I believe fits the description of a CLE that even the most seasoned trial attorney will benefit from. Case in point, the attorney responsible for the above statements had been a practicing and accomplished trial lawyer for decades.

So, do not write off all CLE programs as useless, boring requirements. There are many programs worthy of attending even if you have fulfilled your yearly requirement. The High Impact event is certainly one of them. In addition, I highly recommend the Advocacy Track at AAJ’s Annual Convention and the Torts Made Perfect biannual program in Las Vegas. As trial lawyers, we never stop learning, so get out there and better yourself and your clients’ chances of recovery at the same time.

February 13, 2012

The Business of Being a Trial Lawyer: Are We Our Own Worst Enemy?

Being a great trial lawyer and being a great business person do not necessarily go hand in hand. Over the weekend at the AAJ Winter Convention in Phoenix, I sat down and spoke with my friend Marc Stern, Vice President of Business Development for Sokolove Law. As we discussed marketing in general, he mentioned to me how surprised he is when he discusses ROI with trial lawyers and they respond with: what is ROI? For the trial lawyers reading this post and asking the same question, ROI is Return On Investment. ROI is something that every trial lawyer who is marketing and advertising their services should be familiar with. How else are we to know whether we are spending marketing and advertising dollars wisely? I mention this only to illustrate the point that trial lawyers need to pay attention their business, as well as their cases so that we do not become our own worst enemies by failing to properly manage the funds that we work so hard to bring into the firm. Along these lines, I am planning a series of future articles discussing several aspects of “the business of being a trial lawyer.” Look for future articles here or follow the link posted on the Lawyerology! Blog’s Twitter feed @lawyerology.

One tip I will offer today is that trial lawyers carrying a large caseload, without sufficient time to dedicate to business issues, should think about hiring others to do so. Here at Sullivan, Morgan & Chronic LLC, we have several people dedicated full time to jobs that do not exclusively include active case work, but do include marketing, advertising and other functions. My wife, Bianca Sullivan who has an MBA and a JD manages the business operations of the office. Shaun Bender, an IT professional from Promovi Solutions Group, manages the firm’s network, hardware, software, blog back-end, website back-end and is a frequent contributor to any discussion involving Internet marketing and advertising. The firm’s Director of Information Management, Ford Inbody, in addition to managing all records at the firm, is a frequent contributor to marketing and social media decision making. Finally, the firm recently began discussions with local social media, web development and API gurus David Snodgrass (@webdevgeek) and Shannon Schlappi (@dramclub) from Locker Partner about how social media can be utilized to benefit the firm. The moral of the story is that, as much as we all wish that it did not have to be this way, there is more to being a trial lawyer in today’s legal environment than just settling cases and winning trials. As trial lawyers, we all need to do a better job of managing the business side of our firms if we want to ensure longevity and prosperity in the information age.

February 17, 2012

Trial Lawyer Litigation Tip: The Importance of Listening

As I was reflecting on a day of taking depositions in a railroad accident case that Sullivan, Morgan & Chronic is currently litigating in Tennessee, I did some thinking about what techniques and practices litigators can use to conduct more effective depositions. The first thing that came to mind was listening. Listening is a key component to the art of communication and persuasion. Nevertheless, the majority of the time I observe lawyers questioning deponents, they are hardly listening at all to what the deponent is saying. They plod along, shackled to their written outline, simply waiting for the deponent to finish her answer so that they can move on to the next question on their list. While I am a big proponent of writing out deposition questions verbatim, this technique does not necessarily have to result in a breakdown of communication between the lawyer and the deponent. This is not to say that lawyers working from written outlines are the only culprits. I have also observed lawyers with no outline (something I would strongly discourage) making notes and thinking about their next line of questioning instead of listening to the deponent’s answer. Even in those cases where the lawyer does not care what answer the deponent gives, listening is crucial to effective communication with the deponent and communication with the deponent maximizes the value of the testimony.

One way for lawyers to become better listeners is active listening. Active listening is a communication technique whereby the listener provides feedback to the speaker in the form of re-stating or paraphrasing the words of the speaker, often in the form of a question. This is perfect for depositions. Active listening also encompasses non-verbal communication including body language, movement and micro-expressions, among other things. It is a rapport building technique that increases the probability that the deponent will “relate” on some level to the lawyer and thereby provide more candid, more thoughtful and more complete testimony.

Comprehension, retention and response form the foundation of active listening. All three are important to effective communication. Without comprehension as a foundation, the lawyer will not be able to listen effectively and participate through verbal and non-verbal response. Without retention, the lawyer will not be able to show real interest by accurately recalling the testimony that will be restated or paraphrased when it is the lawyer’s turn to speak. If the lawyer is not, at the very least, paying close attention to what is being said, adequate retention will not be possible. So keep your head out of your notes and look at the deponent when she is speaking. Finally, in contrast to passive listening, active listening requires interaction and response. Lawyers must always be aware of the non-verbal responses that they are giving to the deponent. The lawyer’s body language, macro-expressions and micro-expressions will give non-verbal responses to the deponent. The lawyer must be sure the signals sent are ones that foster more open communication as opposed to signals that create barriers to communication. Remember, something as simple as looking at the deponent when she is speaking is a non-verbal response. Showing interest promotes further communication. Showing disinterest, by writing or reading notes and not looking at the deponent closes down communication. It should go without saying that closing down communication is never a useful objective for a lawyer in a deposition. Paying attention to the deponent will also open up a whole new world of non-verbal responses and body language that the deponent would be communicating to the lawyer if the lawyer were just listening.

So give the technique a try next time you take a deposition. Start with the basics. Just try actually looking at the deponent and paying attention to what she is saying as a start. You may just be surprised at how much cooperation you get from the deponent and how much information she is willing to share.

If you are interested in learning more about communication, persuasion, body language and micro-expression, the following are some books I highly recommend to any trial lawyer from novice to warhorse: Words That Work by Frank Luntz, Don’t Think of an Elephant by George Lakoff, The Culture Code by Clotaire Rapaille, Negotiating With Giants by Peter Johnston, PaulEkman.com, PowerToChange.com.

February 21, 2012

The Post-Office Generation

The other day I was gripping with a colleague about the rapid decline ofTechCrunch reporting since the departure of Michael Arrington. Well, the website proved their lack of journalistic abilities with a recent post entitled “The Post-Office Generation.”

To summarize the article, John Biggs discusses another blog post over at Minimal Mac all about the giant miss that is Microsoft Office. It’s a wonderful article that outlines that Microsoft’s biggest failures isn’t that it kept Microsoft Office in the PC world instead of iOS and Android, but that it showed the world it could survive without Microsoft Office.

But that’s not really the point of my post. I agree completely with Patrick Rhone on the Microsoft Office topic. We don’t need Word, Outlook and Excel. There’s a wide variety of other options out there that do the job just as well. Some even are free, such as Google Apps, which gives you your documents and apps wherever you are.

However, in John Biggs’ post he talks about the automation of office workflows and the conversion of paper to electronic documents. He professes a state of shock at the notion that we’re not in a completely paperless system yet and how useless it is for him or anyone to fill out paper forms as no one will have the time or resources to actually read the form. Biggs does recover slightly by admitting that the technology and processes simply aren’t there yet for a completely paperless office, but the damage is already done.

What sets me overboard is this line: “And what was Access (remember Access?) but a way to put those poor schlubs in records out of a job?” This is where I feel his greatest short come on reporting falls. How does simply having a database software suite put records workers out of a job? Who does he think creates the procedures, processes and protocols for how that software is used in the office? Who does he think converts those paper documents he finds archaic (and honestly, so do I, but that’s another rant for another day) into electronic data that is easily digested by similar database software?

In the end, he should have simply stayed on topic and discussed how Office is a non-essential software suite in our ever evolving marketplace. He was dead on when he wrote that Microsoft Office wasn’t necessarily a miss, but rather a paradigm shift. That’s exactly right as more and more tools of the office are moving to the form of apps and virtual support. Dedicated applications will soon be a thing of the past, however, that doesn’t mean the past will entirely disappear. There will always be a need for paper and people who can convert that paper into organization that meets accepted standards and practices.

Also posted at LegalRIM.net.

February 20, 2012

Legal Tip: Find a Niche and Stick with It

Some great insight from Randall Ryder at The Lawyerist:

Law school exposes law students to a a smorgasbord of substantive law. This creates the impression that in real life you will deal with complex real estate issues in the morning and handle a criminal trial in the afternoon.

I don’t know any solo attorneys who practice that way. If you are opening your own shop as a solo attorney, find a niche and stick with it…Read Randall’s full article here.

February 20, 2012

Anonymous Invades the Spanish Academy Awards Ceremony For Real

Rather than just crashing web pages, Spanish anonymous members had the balls to crash the equivalent of the Oscars ceremony in Madrid yesterday. Three members of Anonymous sneaked past extreme police and private security controls to jump onto the stage as the event was at one of its highest points, as this image shows…Read the full article here.