Changes Coming in the Ohio Rules of Civil Procedure

The Ohio Supreme Court recently announced amendments to the Ohio Rules of Appellate Procedure, the Ohio Rules of Civil Procedure, The Ohio Rules of Criminal Procedure, the Ohio Rules of Juvenile Procedure, and the Ohio Rules of Evidence.

All the rule changes will take effect July 1, 2012.

The Ohio Rules of Civil Procedure have been amended in various places and most of the changes seem relatively minor but listed below are the significant changes that Ohio attorneys need to be aware of. Of course, attorneys in Ohio are encouraged to read the full text of all changes.

COMMERCIAL SERVICE OF PROCESS ALLOWED. Service of process (summons and complaint) can now be set up via a commercial service and not just the US mail, as long as the server returns a document showing who, when, and where the party was served. See Rule 4.1 thru 4.5

THE “MAIL BOX RULE” APPLIES TO COMMERCIAL SERVICE. When service is perfected by a commercial service, 3 days is added to any required response time. See Rule 6(D)

ATTORNEY OR PARTY EMAIL ADDRESSES. Any attorney, or a party acting without an attorney, who files a pleading in court must always include their fax number and email address. See Rule 11

DISCOVERY OF EXPERTS. The rules on expert witness discovery and early drafts of reports by experts have been changed to conform to the federal rule. See Rule 26(B)

DISCOVERY SERVICE ELECTRONICALLY ONLY.

• Interrogatories need only be served electronically now. See Rule 33(A)
• Requests for admission need only be served electronically now. See Rule 36(A)
• Deposition subpoenas may only require a witness to appear in their home county. See Rule 45(A)

SUBPOENA APPEARANCE. Trial subpoenas may require a witness to appear anywhere in the state where a trial or hearing takes place. See Rule 45(A)

JURORS. Trial courts now have discretion to hold alternate jurors while the jury deliberates instead of discharging them. See Rule 47(D)

The complete text of changes to all rules appears in the Ohio State Bar Association Report, aka “the green book,” dated May 21 (Vol. 85 #21) and can also be found from the link on the top left margin at this internet page: http://www.ohiocourtlinks.org

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Win Cases since 1978.

What Movies Teach Us About Trial Practice - Part 3

We've been writing about trial tactic tips that we picked up from the movies, after seeing The Deep Blue Sea recently. The movie had lots of style but it was the trial tactic lessons that can be learned from the film that made it a real stand-out to us.

The first tip in this series was putting the end at the beginning, a way of mixing up the chronology of your opening statement in a way that can add drama and capture the Jury's attention from the very start.

The second tip explained the value of planting an Easter Egg in the evidence that allows your Jury to discover evidence in your favor without you leading them to it. After all, the truth of your case that the Jury discovers on its own will be far more compelling to them than anything the lawyers overtly say or do.

Another subtle point made in the movie, and this is our third tip in this series, and which can help your next Opening Statement is to bring the storyline full circle. Doing the same thing with your trial presentation can make your case a winner.

Have you ever heard a story or seen a movie that just comes to an end without really wrapping up the story with a conclusion? Did it leave you wondering what happened next? Well, human nature hates an incomplete story. It just isn't natural.

From childhood we are taught that every story has a beginning, a middle and an end. Remember? The Big Bad Wolf gets it in the end. Hansel and Gretel escape and win out. Sleeping Beauty wakes up and all is well in the world.

You can use that natural story flow to satisfy your Jury that your presentation of the evidence is the truthful one in your trial. How? By bringing it full circle.

When you get to the end of your case, it often can drive the point home even harder if that ending moment takes the Jury right back to the beginning again. That's exactly why your Closing Argument should echo back to what you said in your Opening Statement. But you can do much more. You can also make sure that your last witness, and your last question, reminds the Jury of the case theme you announced at the beginning. Give them the last piece of the puzzle.

Perhaps the best use, however, is to bring the Jury right back to the injustice that you pointed out at the beginning of your case. That tells the Jury that unless they change the ending, what the defendant did in your case will be repeated again and again. It can be a powerful way of nudging the Jury to make the world right by giving your client a verdict. By doing so, you are giving the Jury both the opportunity and the incentive to make the needed change. The Deep Blue Sea is a film that does that too.

The movie opens with a slow pan of an old home in London in the 1950's as night falls. A woman walks out the front door and puts milk bottles down on her doorstep for the milkman to pick up the next day. A man finishes smoking his cigarette and flips it into the street and goes back inside. The camera pans up and there in a dark window, seen from the night outside, is the shadow of a woman peering out into the dark. The scene sets the stage to know that life outside that room may be normal but something inside that room is dark and ominous.

At the end of the movie, a woman is shown looking out that window. The camera shows her in daylight and pans out and down to reveal last night's smoker leaving his apartment for work, the woman coming out to retriev her now-full set of milk bottles to start the day, and the camera pans right to reveal the shambles of a building next door as people begin to come out into the street. It is the exact opposite of how the movie started. We see life on the street returning to normal again as the movie has come full circle. We know that life inside that upstairs room is still not normal, but we are satisfied that life as we see it is returning to normal.

The "moral" of your case, the theme if you wish to call it that, always should be set out in your Opening Statement clearly in the first few minutes of your presentation and repeated at the end of it. And in your Closing Argument, bring the Jury full circle by bringing them back, subtly but earnestly, to that again. A story well told is one that has a beginning, a middle and an end. You can mix the parts up somewhat to add drama, but be careful you don't lose the Jury in the process. And always bring them back home again.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers help people

What movies teach us about trial strategy, part 2

The Deep Blue Sea is a fascinating movie that you may have to search out to find on a big screen near you right now. If you watch it for its style you'll learn a lesson or two (maybe more) about trial tactics. Style? Trial tactics from movie style? Here's part two about what we mean.

There's lots to talk about, but let's take a look at the second of three trial tactic lessons from this film that you can think about adapting to your next trial's Opening Statement for example.

Our second tip? Plant a not-too-obvious Easter Egg and let the jury find it on their own.

One of the unique aspects of movies is that very often there are seemingly pointless scenes in a movie that are never fully explained by the end of the film. These scenes, however, serve a purpose. Every movie has an obvious plot and then there are the not-so-obvious scenes that actually contribute to the plot but not in an apparent way. You have to think about them. These are the Easter Eggs.

In computer parlance, the techies who wrote computer code (and which became the computer games of our youth) often would plant code inside the game as a surprise for the game players - sort of an inside joke for those who knew it was there. Well, we're talking about taking the same approach with your next jury, but in a much more serious way.

The idea is to give them something that is not terribly obvious but which some of the jurors will begin to think about and work into the unfolding case facts during the trial. In other words, let the jury find greater meaning in your case by discovering it on their own. But to encourage that discovery process, you often will need to plant an Easter Egg - a simple fact or statement or bit of evidence that may lead one or more of the jurors to begin to think on their own. The risk, of course, is that they may not go the direction you want them to. And that is why you need to be careful that your Easter Egg directs the jury to where you want them to go.

Back to the move, as an example.

There's a scene, also relatively early in the move, where the heroine (if that is what she is) is looking at her boyfriend and the camera focus on him as he says that what he told her was not a line and that he really meant it. Then, just as abruptly as it went into the scene, the film cuts away to another scene. There is no explanation for what the scene has to do with the plot at all. It is only later, with a lot of thought, that the view realizes that the scene is the moment in the lives of these two people that they first fell in love with each other. You don't get that from the movie scene itself, though. Only when you look back on it, through the understanding of the rest of the plot, can you realize what that scene meant to the storyline of the movie.

Now, here's an example of an Easter Egg in a prior auto sales fraud trial. Among the documents in evidence was the sales contract and the dealer's finance contract. No one paid much attention to the itemization of the charges on them which was placed there by the car dealer who had ripped off the consumer. But in the consumer's Opening Statement, the remark was made that the car dealer had gouged the consumer with bogus charges and fees, although the focus of the case was the fact that it was an undisclosed wrecked car that had not been repaired right. The focus of the case, according to the attorneys of both sides, was the damage that had been badly repaired on the car. But the Easter Egg was not that.

The sales contract included the state sales tax and when the total was written into the finance contract, the dealer added the state sales tax back on it again. In the Jury Room, one of the jurors pointed it out and that single, small fact fueled the easier-to-find fraud that permeated the case and also fueled the degree of punitive damages they jury felt was needed to curb this car dealer and warn others. It was not the focus of the case for the attorneys, but it was the obvious example of the fraud to the jury because it was black and white and indisputable. It was an Easter Egg waiting to be discovered.

Even if it isn't Easter-time, the result could be a Christmas present for your client. Next week, the final instalment of what movies can teach us about trial strategy - and another trial practice tip you can use.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients

What movies teach us about trial tactics, part 1

The Deep Blue Sea is a fascinating movie that you may have to search out to find on a big screen near you or on DVD. While tons of critics liked it just barely half the viewers did. Still, if you watch it for its style you'll learn a lesson or two (maybe more) about trial tactics. Style? Trial tactics from movie style? Hang in there and you'll see what I mean.

There's lots to talk about, but let's take a look at the first of three trial tactic lessons from this film that you can think about adapting to your next trial's Opening Statement for example.

First, the movie starts out near the end of the storyline, a technique worth thinking about the next time you plan your Opening Statement. Many times an attorney will use the Opening to tell the facts of their case as a story, commonly following a chronological storyline of what happened first, then second, and so forth. The theory behind it is that this logical progression through time is an easily recognizable and natural flow for most people to follow and understand because it is the way we live our lives. That's true, but it's not always the most dramatic and riveting way to get someone's attention or to hold it.

The movie is a good example of what we mean. In the movie, in a matter of minutes we are taken to a scene of the heroin's intended act of suicide. Knowing nothing about the character, we are quickly hit with natural questions - all related to how this beautiful woman got to that obviously wrenching point in her life. We want to know more. And that's the whole point of putting the ending at the beginning.

Without knowing that it's the ending, when first observed the viewer is taken aback and, quite often, shocked. How could a movie start with something so shocking and not tell us what led up to this? If this is the start, where is it going? What is going to happen next?

The illogical placement of the movie's "end" at the beginning literally pulls the viewer into the movie. It makes us want to know more because the human mind craves to make sense of the senseless, to make logical that which is illogical. Because of that, this movie pulls you into it from the very start, almost forcing you to ask all the questions that the writer (and director) have yet to answer. And when the viewer hears and sees those answers, it satisfies the uneasy heart with a contentment that is unequaled and ingratiates the viewer to the one who provided those answers (the one who made sense of the world around us).

If you understand that part of human nature, you have an opportunity to take advantage of it in your next trial - because the very illogical nature of it makes it something that most attorneys are ignorant of and ignore even when they are aware of it. The seemingly illogical start of the film is your grand opportunity in a courtroom.

A clever construction of your next Opening could do exactly the same thing to your "viewers" - those people sitting in the jury box. If your chronological story has a dramatic conclusion at its end, then for your Opening Statement think about the possibilities that can open up if you can move the end to the beginning of your Opening instead.

Not only will it take the jury by surprise and draw them into your story, but it will likely strike your opposing counsel as illogical, senseless, and lull them into a complete misperception of what is occurring before their very eyes. With the end at the beginning, they may well perceive your story as confusing the jury - while all the while it is telling the story of your case precisely as you wish it to be, i.e., dramatic, compelling, and enrapturing.

Let’s take an actual wrecked car case (not disclosed at date of sale by local selling dealer). Owner and family are later driving down the road at night, on their way home from out of state family trip, when a deer jumps out and the car hits it, wife screams, kids scream, deer bounces off bumper to hood to windshield and over car, causing damage everywhere it hits. With car on side of road, owner makes sure everyone is okay, his blood pressure and adrenaline goes back down, car towed to the out of town dealer and cab takes them all home. Days later the out of town dealer calls and says we won’t cover the unfixed and badly fixed prior repairs. You can imagine what follows.

Now in a normal sequential opening statement you might start with the first owner’s history of the car, his accidents and repairs, the trade in of it, the reconditioning of it, and the resale of it, and then the client-consumer’s own accident and discovery of the old damage. But putting the ending first would be different. Instead, you would take the most dramatic event (the client’s own accident) and start your opening there and go forward to the owner going down to the out of town dealer and being shown the old accident damage and then jumping back in time to the “beginning” of the car’s history, which is what happened with the original owner having an accident, etc. All your drama comes from your client’s own accident and the shear terror of it. The unexpected twist in the story comes when he finds out there was a prior accident too (insult added to injury).

Not every case has drama, but most probably do. Not every case is amenable to the end of the story being placed at the beginning, but many probably do. Think it over carefully before you dismiss it in your next case.

If you grab your jury's attention at the outset, your opposing counsel may never catch up. And that can mean you (and your client) will have the jury's attention from start to finish. Do it right, and you will win.

Next time, the Second Lesson on what movies teach us about trial tactics. Part 2 coming up.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers win cases, for over 30 years.

What is the best online site for Free Legal Research?

That's the question that San Francisco attorney Stephanie Rabiner answered on the Strategist Findlaw Law Firm Business Blog recently.

And she came up with her vote for the 3 best web sites to get free legal research and avoid the financial drain of the "Big Two" in paid legal research sources. And did I say it was "free"?

What you will find in here recommendations is one you probably already know and two you never heard of before. Her blog is well worth the read and quite eye-opening. Click here for more.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Helping Clients

Spying on Your Opponent's Twitter Timeline?

It is amazing what people will put on their Twitter page. Doing research on someone's social media is relatively easy to do and can be very useful in litigation.

If you want to download info from Twitter, for instance, you can now download an entire user's Twitter timeline pretty easy. In fact, there's a new post on Lawyernomics that gives you the exact process. With a little digging and effort, you can figure out a similar process for Facebook, etc.

The Twitter download steps are explained here (click here).

Ron Burdge

www.TheLawCoach.com

Helping lawyers win cases and help clients for over 25 years.

7 Things I Wish I Knew When I First Started Practicing Law

Keep Track of Your Time

Bad habits start early and grow on you. That includes time-keeping habits too. If you’re a new lawyer, start tracking your time carefully from the very start. If you’re an older lawyer, well start fixing the problem right now. In my first decade I gave away more time than I ever billed - all because of a lack of tracking the time right in the first place. And I’ve been paid less for the billed time than I thought I was going to get too - because when your bill arrives later, there’s always some other bill that got there first. Besides, when people need help right now, they will pay for help right now - tomorrow they may not be so committed to it. And being paid leads me to the second thing I wish I knew when I first started.

Get Paid up Front

The simple fact is that the best time to get paid is when the client needs your service. Afterwards, your bill is just one of several sitting on a counter or in a folder waiting to come “due.” I can’t tell you how many times I was hard at work on a brief or memo or getting ready for a trial when a potential client with an emergency needed to interrupt me with their situation and to get their question answered. If you are working on a case for a client who is paying you, don’t let yourself be interrupted by someone who isn’t paying you for your time. Sending a bill later doesn’t pay for the interruption caused right now.

The Most Important Person in Your Law Practice Isn’t You and it Isn’t Your Client

At the beginning, I thought I was the most important person in my law firm. Wrong. Without clients, there is no law firm. So, I started thinking that clients were the most important person in my law firm. Wrong again. Law firms, like life itself, are about relationships. Unless you really like being alone in life, the most important person in your law practice is the person you go home to at the end of a day. They are the only one that you can honestly commiserate with over the tough days and who will patiently listen and sympathize with you. And they are the only one that you can truly celebrate with over the great days because they are the only one who truly know the depth of your hard days and the height of your best days. If you don’t share it all with someone, you don’t really live.

When Dealing with a New Opponent, Try to Settle Before You Try to Sue

Clients will come and go, but the merchants our clients deal with usually stick around. When a client complains about a merchant you haven’t dealt with in a case before, give them the benefit of the doubt at first and try to settle the dispute without filing a case against them. As time goes by, you’ll learn the people you can work with successfully and the ones that just don’t work that way. Settling a dispute fast is a great benefit for the client as well as for you, the attorney. Happy clients tell other people about you and while winning in court is great, it is even greater to have a happy client who avoided court and who goes around bragging about how you got them quick relief instead of a long lawsuit. Sometimes everyone really can win.

Give Them Something Extra Every Once in Awhile

At the start of a career, we often think that we do the job requested and get paid and go on to the next job and that’s true of most people I suspect, whether it’s a lawyer’s job or not that is being done. It’s a bit like showing up on time. It’s nice, but you just don’t stand out. After all, you are being paid to show up on time and do the work. If that’s all you do, then you could be anybody doing anything. What people remember are those times when someone did something extra or went out of their way just because that was what was needed to do something right. Every once in awhile, it’s nice to do something extra (without charging anyone for it). That’s true whether it’s a client, another lawyer, a Judge, or anyone at all. Giving something extra for the effort makes you stand out from the crowd. It also makes people appreciate you. And sooner or later, it comes back to you.

Be Nice to People - You’re Not a Big Shot

When most lawyers start practicing law, they reflect on the fact that they just spent 7 or so years of their life and went through a grueling multi-day examination and waited months to find out if they passed and they finally made it. It’s a difficult road to go down and a proud accomplishment when you successfully get to the end of it. But that end is just the start of a career. It’s important to remember that you are still just an ordinary person. Don’t let the “Esq” behind your name become a big ego in front of your name. Treat everyone with the courtesy and respect you want for yourself too. Being nice to people shows them that you are an approachable, understanding - but professional - attorney.
Go Home on Time

In the early years, it is very easy to tell yourself that you are building your practice and your reputation and need to work those extra hours in the evening and on the weekend. It seems true too - after all, you have something to prove to yourself and your clients. Well, don’t forget that every day in your life you also have something to prove to your family. And that is that you put them above everything else. I’ve heard too many lawyers talk about working their way through life until they reached the point where they realized that their kids grew up without them and their spouse grew apart from them in the process. Family matters. Sure, winning is important. Sure, having a great reputation is important. Sure, knowing the details of every dispute is critical. But don’t convince yourself that all that matters more than anything else. Your family and your home are what really matters. As tough as it is to turn out the lights and leave the office, and trust me on this, it’ll all still be there tomorrow.

Ron Burdge

http://www.thelawcoach.com/

Helping Lawyers Help Clients, Everyday.

What's Your QR Code, and Are You Using It?

We just finished 7 seminars presented over three different states, along with over 70 other presenters. Lots of new and old friends met up with us. Lots of exhibitors too. And 800+ pages of written materials from all the presenters. One thing stood out.

At the exhibition halls, most of the booths had posted on their written materials their QR codes. Out of all the presenters who lectured at the different seminars, only one had their QR code on their seminar material.

QR Code, you say, what's that? More importantly, do you know what your QR code is? And are you using it?

A QR code is a "quick response" code that your smartphone can scan and read. When it reads the two dimensional black and white image with your smartphone's camera and the phone's app, your smartphone automatically uses its browser to open up the website for your code. See that square black and white image in the upper right corner of this web page? That's it. And it's cool.

And that's not all. You can make a QR code, using any of the many online code generators, to create an instant phone number so people can hold up their phone, scan the code, and the phone will dial up the number without having to remember or actually dial the number at all. And there are lots of other possibilities.

Ron Burdge's Online CV

The image is capable of holding all sorts of data that can be easily read and interpreted with any of the several code reader apps for smartphones that are free and readily available. And when your phone scans the image, it doesn't matter if the image is upside down or sideways or what. The app can figure it out.

You can put the code on your seminar materials (so attendees can jump to your web site or blog or a special page of material to supplement the seminar with materials that didn't get published in the seminar book in time. Or maybe your full bio or CV online.

The code can go on your business card, your office brochures, your letterhead, your advertising, tee shirts, and anything and anywhere else. More and more attorney business cards are sporting the image.

And, of course, since the smartphone is the device that scans and reads the image, and can jump direct to a website from the image, then the image can take that prospective client direct to a mobile web page or site for your law firm.

So, what's your QR code? Oh, and that one sole person among all those dozens of speakers at those different seminars in three different states, the one who actually had his QR code on his seminar materials? Well, who do you think it was?

Ron Burdge

www.TheLawCoach.com

Helping lawyers, helping clients, everyday.

Say Thanks to Someone Who Served

Sometimes there are moments when someone turns their head for a moment, completely off-topic, and starts to talk and it is in that kind of moment that you can learn a lot about a person.

A few years ago, a local farmer came in to see me for some help. Bills and crop prices and debt had him over a barrel and we talked about bankruptcy and what it could and couldn’t do to help relieve his situation. He was a big strong man, the way some farmers just naturally are, both in his heart and his size. We were about the same age but he looked so much older.

His situation took about 5 months to get resolved but I will never forget the day that I learned that he was a chopper pilot in Vietnam about the same time as my older brother, Larry, was there. I had no clue and never would have guessed.

We both stopped what we were talking about, his own current problem, while he looked out the window and quietly talked about what it was like then, back in Vietnam. It was hard for me to look at this older and much heavier man and try to imagine what he must have looked like back in the days of 1966-'68. Now, he was mostly bald and probably weighed a lot more than he did back then, but like me he had been young once too. Now, he didn't move as quick as he undoubtedly did in 'nam either.

But you could tell from the distance in his eyes as he spoke that he had never really left it all behind him.

He talked about what it was like to fly a chopper in and out of valleys and hills and fire, dropping down as quickly as he could and picking up a wounded soldier or two and getting back out of there, wherever "there" was, as fast as he could. Nothing but plexiglass between him and the bullets.

He said he loved flying helicopters then, but that he was never in his life as scared as he was in those few minutes between the time just before he would land and when he was back out of the worst of the fire. He said they were the longest minutes of his life. He called it "dodging a lifetime of bullets," scared to death that one of them had his name on it.

He had a dusty old baseball cap in his hand as we talked. It hung loosely in his hand as he gazed aimlessly out the window. It was from some team that didn't really matter, I'm sure. His eyes were never in the room with us as he calmly and matter-of-factly talked of how men died around him and also of those who came back like him.

You could tell he had memories he wished he didn't have. He said the worst feeling he had from the whole war was that every time he'd lift off the ground he knew that while he was getting out of there, he was leaving other boys behind. He'd fly away, his heart pounding loud in his chest, while the fighting went on below him.

After a long while, he stopped talking and we just sat there, not talking at all. I could see that things were going on inside his mind and I just didn't know what to say. I was dumbstruck by this seemingly now-gentle giant of a man who had been through hell. Truth be told, I didn't think I had a right to say anything at all. After what seemed like the longest time, both of us returned to the present moment. He never spoke about it again.

It's been years now. I don't even remember his name. Probably most of the guys he saved didn't remember it either. I haven't thought of him since then until my older brother sent me a recording he found on the internet, called God's Own Lunatics (click below) that explained what it was like to be one of those foot soldiers on the ground. I clicked on it, listened, and the memory all came back to me.

I recall that he was the son of a local farmer who had gone off to war and came back all grown up - to be his father's son, a farmer again. Something about beating your swords into plows seems appropriate for me to end this note but it also seems so trivial a thing to say. I can still recall his face.
We all owe veterans a whole lot more than any of us will ever be able to repay. If you know someone who served, shake their hand and thank them. You don't need to say why. They'll know.

Non economic damages in UDAP Litigation

Last week, while presenting several presentations on the use of expert witnesses at the National Consumer Law Center's 20th Consumer Rights Litigation Conference in Chicago, several audience members asked about recovering damages for the different types of non-economic injuries that a consumer experiences when victimized by a merchant's unfair and deceptive acts and practices.

Under one or more claims in a civil case, an injured consumer may have the right to be compensated for "non economic" damages. These are often thought of by lawyers and consumers alike as emotional or aggravation damages but can actually be based on a variety of physical or emotional symptoms and/or circumstances.

If you represent the consumer, your client may have the right to be compensated for emotional damages but you will have to tell the jury about it and the consumer must provide sufficient convincing evidence of the injury and/or damage - or they generally can not be compensated for it.

A few years back we heard from Virginia attorney Tom Domonoske on his thoughts on what kinds of injuries might be the subject of a non economic damages claim. Since then, the list has been broadened and made more complete, but there's no question Tom's input started it all. Here are just some of the examples of different types of circumstances that a consumer may experience and which may be compensable.

• Aggravated existing illness
• Anxiety attacks
• Appetite loss
• Bedridden circumstances
• Chest pain
• Concentration loss
• Crying
• Dizziness
• Fear
• Headaches
• Humiliation or embarrassment
• Hypertension
• Hysteria
• Illness
• Irritability
• Job performance affected
• Job loss
• Medical expenses
• Muscle spasms
• Nausea
• Nightmares
• Privacy loss
• Relationships affected
• Reputation affected
• Loss of sexual desire
• Shortness of breath
• Sleep loss
• Stomach pain
• Weight gain
• Weight loss

A consumer normally can not be compensated for these traumatic experiences unless there is some evidence of the injury, such as them talking about it and explaining it to the jury, or other persons tellilng what changes they have seen in conduct and demeanor, etc. In some state, actual medical evidence may be needed to prove causation for one or more symptoms and its relationship to a defendant's conduct.

Basically, the consumer should be able to finish this sentence: "because of what they did to me, I experienced ..." and then talk about the applicable symptoms listed above.

These experiences must also be caused by what happened in the case too. In other words, the consumer must genuinely believe (and be able to explain) that their emotional or physical symptoms are the direct result of what happened to them in relation to their troubles over their consumer product or service and their dealings with the merchant involved.

Friends, family, co-workers, and other persons may have witnessed the consumer going through some of the symptoms described above. If so, they may be able to help explain the evidence that supports the non economic injury and help a jury to understand how serious and real all of it has been for the consumer.

The question becomes, how did the consumer's reactions manifest themselves in the consumer's daily life? If the consumer was not bothered by what happened in their case, then they do not have the right to receive any compensation for emotional non-economic damages. If it did, then the consumer does have the right to compensation.

But a jury has to know that it is real and, as a practical matter, that means they have to hear about it from the consumer and their witnesses.

The consumer's explanation must be real, genuine and from the heart. If these symptoms do not apply to the consumer, then they should not talk abotu them and the attorney should not ask the jury to give any money because of them. Even if the jury does allow the consume rsome "aggravation" money for non economic injuries, the law is some states may limit the recover (such as in Ohio where it is capped at $5,000).

Can non economic injuries enhance a consumer's recovery in a UDAP case? Maybe, but that will always depend on the consumer and their ability to testify adequately, the attorney and his/her ability to demonstrate why it is appropriate, the defendant and their culpable conduct, the judge and the instructions being given and, of course, how the jury sees it all come together.

Ron Burdge

http://www.thelawcoach.com/

Helping attorneys, helping clients

Setting up systems that work with InShort, an iPhone App

Last weekend at the NACBA annual fall workshop in Colorado Springs, we talked about the importance of The E-Myth Attorney concept of creating and using systems and processes in your law practice. Lots of great questions from an audience that craved systems analysis and the profit, both personal and professional, that can be had from it.

Naturally, people wondered what we used to create the systems we use in our own law practice.

For the litigation side of our practice, we commonly use Amicus Attorney - partly because our firm grew up with it from version 1.0 and everyone knows how it works and it fits us perfectly. But for the bankruptcy side of the practice, Amicus doesn't seem to fit very well for designing systems and processes there.

Instead, we're getting used to an iPhone app called InShort which we use on our iPad - not the iPhone version, for reasons we'll get to.

Both simple to learn and able to get complex, InShort has a lot of promise. The User Manual for instance, which is built into the app itself as its opening screen on your first use, actually walks you through a sample process, showing you step by step what each aspect of the program means and how it works and how to create your own. Smart move.

For creating a system or process for your practice, this looks like a great approach to the problem so far. In some ways, it's a bit like mind-mapping a system out except that this app lets you then apply that system and check off your progress after you design it and start to implement it in your practice.

The InShort app is $6.99 in the iTunes Store (used to be under $5), which is just slightly higher than most productivity apps, but it is slick and highly polished and worth it. The InShort app lets you diagram out the process you are trying to create in a sensible and methodically manner. You can actually start with nothing but an idea and create your process inside the app if you want - getting rid of the usual pen and paper first step. So far, it looks awfully good on an iPad - but kind of tight on an iPhone.

You can check out a good review of it here (click) at the iPhone App Review site. But like everything else when it comes to finding or creating a system or process that works best in your own law practice, it's all up to you. You have to check out lots of alternatives and settle on the one that works best for you because, at the end of the day, the best system in the world (or the program that creates it) isn't worth anything at all if it doesn't work good for you.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients

The Link to The E-Myth Attorney

We're in Colorado Springs today to give a seminar on Success, E-Myth Lawyering Principles, and Business Economics for the National Association of Consumer Bankruptcy Attorneys at their annual Fall Workshop. There have been tons of great tips and advice on the business of lawyering during this two day workshop, from some of the best business minds in law,  and we're honored to have been invited to speak.

Michael Gerber, author of the remarkable E-Myth series of classic business books, and the publisher, John Wiley & Sons, have graciously allowed us to distribute a free copy of two of the chapters from The E-Myth Attorney as part of our presentation at the workshop. These two chapters will give you a taste of why we have said that this is the best book on the business side of lawyering ever to come along.

Workshop attendees can get your free copy of the two EMyth Attorney book chapters by clicking on this link: http://dl.dropbox.com/u/6160661/E-Myth%20Attorney%20Chapters%205%20and%206.pdf

Click the link and print your copy today. This link will go "dead" within the next few days and after that you'll have to go to your local bookstore or order your copy of the book online. As we've said before, it's a great read and well worth it. Those who attended the NACBA Fall Workshop were lucky to have learned that the great folks at BKExpress, one of the conference exhibitors, brought a hundred free copies of the E-Myth Lawyer as a surprise give away for workshop attendees. Still, click on the link and read your free chapters today.

Ron Burdge

www.TheLawCoach.com

Helping lawyers helping clients

for over 30 years

Cases You Should Not Take - Great Article Worth Reading

Ever wondered whether or not to take on a case that you weren't sure about? Susane Robicsek, an experienced bankrutpcy attorney from North Carolina posted a great article on Bankruptcy Cases Not Taken, posted on the Bankruptcy Mastery web site (click here) on exactly this topic.

Although her post deals with bankruptcy cases, the rules of the road that she discusses are universal and well-learned.

The article byline says a lot too: the cases not taken are the ones that can keep you in business.

If you have doubts about a case nagging at you, don't accept the case until you read her article. Lots of good wisdom here and the rules are universal. It's clear that she, like so many other attorneys, learned the lessons the hard way. Read her article now and maybe you can avoid the hard road to travel too.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients.

A Guy Searches Google - 2 result comparisons tell the whole story

Gyi Tsakalakis, is co-founder of AttorneySync Law Firm Internet Marketing, and has a great post on the importance of spreading your info across various sources on the internet in order maximize the points where you can be accessed by a potential client who is looking for a local attorney.

And his two comparisons is not far off the mark either.

There is no question that any attorney who wants to rise above the everyday internet buzz is an attorney who needs to frequently be online with all the sources that are out there for that purpose, and there are lots of them.

If you haven't claimed your Avvo profile, go do it. http://www.avvo.com/

If you haven't set up a Google's Places listing for your firm, go do it. www.google.com/placesforbusiness

If you haven't claimed your your JDSupra profile, go do it. http://www.jdsupra.com/

Those three are a minimum - and you should check out the AttorneySync article for even more tips - click here.

Ron Burdge

http://www.thelawcoach.com/

Helping Lawyers Helping Clients.

Since 1978.

Burdge to address National Association of Consumer Bankruptcy Attorneys in Colorado

 

The National Association of Consumer Bankruptcy Attorneys will have its national workshop in Colorado Springs at the end of this month and topics will cover the range of consumer bankruptcy issues facing attorneys nationally.

The fall workshops are an annual opportunity for consumer bankruptcy lawyers to get in-depth education and training on bankruptcy law issues from some of the nation's experts and most experienced attorneys.

This year's two-day workshop will feature courses designed for new attorneys and paralegals as well as a more advanced track on complex bankruptcy law issues. NACBA will also feature a special series on the business of practicing law for consumer bankruptcy lawyers and we are grateful to have been invited to speak for two hours before the group.

Most attorneys are not business-minded individuals and have little, if any, business experience. Law school teaches the law, as we all know, but most of them don't teach how to run a law practice as a business. We will fix that problem in Colorado by discussing the E-Myth principles of Michael Gerber's business classics and how they can apply to the business of practicing law. Fueled by a desire to help and serve consumers just when they need it most, many consumer law offices in today's economic climate face economic and business problems of their own as they struggle to achieve business success in their law practice. While they know the law and are trained to use it to help consumers, the business of practicing law requires a different mind set and skill and we'll be talking about those and how to achieve them.

As part of that lecture series, there will be a special discussion revealing the one unknown secret of economic success that is either unknown or disbelieved by struggling entrepreneurs (and that includes lawyers) everywhere - but it works. After spending more than a decade researching business principles and philosphies, including conversations, meetings, and analyses from a broad spectrum of successful people - including business operators, economists, lawyers, philantropists, doctors - and eventually even a one-on-one meeting with an esteemed neurosurgeon on the applicable brain chemistry and the neuro and medical aspects of business success, we'll explain what it this secret is  and some of the scientific and medical evidence that proves this business secret works.

Other topics at the NACBA conference will include fundamentals, the mortgage mess, the means test, escrow payment issues, BAPCPA's TRAP-C-PA, balancing a business, using technology, and mastering all aspects of the bankruptcy process. The two days of lectures, workshops and discussions will feature speakers from all over the country and will be attended by lawyers from all over the country.

Ron Burdge

www.TheLawCoach.com

Helping lawyers help people, for over 2 years

Managing your online reputation - the first step is the easiest.

In the "lawyer business" reputation is critical to success - perhaps more than any other profession or business venture in these economic times. So, how do you monitor your reputation? It's easy for people to talk about you online - and easy for you to take the first step to monitor what they are saying too.

Check out Google Alert to get free alerts by email whenever your name is mentioned online anywhere. It's easy. You just tell it the email address to send the alerts to along with those phrases that you want to hear about when they show up online.

Obviously, list as many variations of your law practice name and your personal name as you can.

Set the frequency of alerts - daily or less often? And then sit back and wait. Anytime one of your keyward terms is used online, you'll get an email alert from Google that gives you the link to that spot so you can check it out.

Google Alert can also be used to keep tabs on others too, like the opposing counsel in a hotly disputed case - or their client when their name shows up online from asset transfers or sales or any of a hundred financial or business transactions that could affect your case.

Google Alert is the easiest way to monitor anything on the internet that you want to know about - whether it is your own reputation or deeper, background info that may get posted about someone else.

It's the first step to take to protect yourself from unfair and misleading slander and online disparagement - and one that every business professional should take. And when I hit the "return" key in a minute, I'll get an email about this post, too.

Ron Burdge

http://www.thelawcoach.com/

Helping lawyers helping clients, for over 30 years.

Communicating with your Jury is critical in closing argument

Use passion

At different stages of a trial, the trial attorney gets to directly address the Jury, but you have to mindful of the indirect communication that is constantly occurring throughout the trial between the attorney and the Jury. Today we'll talk about the importance of the communication that occurs in closing argument.

Your closing argument started to be written with your Intake interview, right? If not, it should have so always do it that way from now on. Making notes along the way is so much easier than waiting until the night before your closing argument occurs. The key facts never change anyway. And your last minute time can be better used directing and finessing what you already had outlined.

Of course, since you started off in opening by telling the jury what you were going to prove, now is the time to tell the jury how you proved it. And, of course, what the other side did not prove.

Replay the opening promises of each side again and contrast where it was met by you and not your opponent. You don't need to harp on every aspect, but you certainly want to pound home your points on the important issues.

And where it is possible, use the defendant’s evidence that favors your side of the case. Point out statements from your opponent's witnesses and inferences from their evidence and direct support for your case that can be found in your opponent's own case.

Consider replaying video testimony from the trial during your closing - it is extremely powerful.

Also, work the jury instructions into your argument. You should have learned what instructions the judge is going to give the jury so fashion points in your argument around key aspects that the judge will instruct on anyway.

And most of all, be passionate as you tell the story of why your client should win and explain the damages question in plain everyday language and tell the jury what you want them to do. There's no point in letting them wonder about just how much it is that you want.

If you get a rebuttal argument, remember that rebuttal is really rebuttal plus another chance at closing argument. So use it wisely and precisely. It is not a time to do it all over again - it is a chance to point out the errors in your opponent's closing that they just heard and to remind them of why your side is right and why your side should win.

Finally, at the end, always thank the jury. What they are doing in your case is what makes the legal system work and they will never be thanked enough for it.

At each stage of the closing, they will be watching everything you do and listening to everything you say. Your communication will occur not just with words but also with your mannerisms, your body language, your style, and your content. Everything matters, so do it right and with passion.

And remember that your communication with the jury starts before you think it does and ends after you thought it already had. Use every moment of it to your advantage.

Ronald L. Burdge

www.TheLawCoach.com

Helping lawyers help clients for over 25 years.

Managing time when time is short, the phone is ringing, and your desk is piled up`

One of the worst problems for busy attorneys is managing their time. It seems that with each day we struggle with emails that never stop, motions that seem to keep coming, phones that ring in the middle of writing that memo or brief that is due tomorrow, and faxes that demand our attention. And somewhere out there is a spouse or significant other who expects to get home on time too. So, how to juggle?

First, each morning you must tackle - and get done - the one thing that is most important to get done that day. With the most important (and often most difficult) task out of the way, the day will only get easier.

Second, block a dedicated time out for your work. And make it the same time frame each day. It doesn’t matter if it first thing in the morning, at the end of the day, or somewhere in between. Block it out and don’t let anything interrupt it. You can’t work efficiently and stay on track to getting a task done if you are constantly being taken off track by every interruption that comes along. It will destroy your concentration, your peace of mind, and ultimately your entire day, if you allow yourself to run from one fire to the next. You are a lawyer, not a fireman.

Third, there are times when you just have to ignore the phone. So ignore it. Let it ring and go to voice mail. You can always pick it up when you get done doing the task that is in front of you. Of course, you can’t ignore it all of the time. Ignore it only when you have to in order to get a task in front of you over and done with. Dealing with telephone interruptions is a balancing act of attending to the business in front of you and attending to the business trying to interrupt you. There is a time and place for the interruption but you should set the time and place. Don’t allow the phone to do it for you. Otherwise, you’ll never get anything done.

And the last thing you should do everyday? Pick the one thing that you absolutely must get done tomorrow. Then pull that file and put it in the middle of your desk so that when you come in the next day, you start right on it and get it done. Of course, you should be prioritizing your work constantly anyway, but at the end of the day you should make the decision on what is the most important thing you need to get done the next day and set it out so that when you come in, there is no thinking, no debating, no effort needed. You can just start right on it and get it done.

More tips are coming in the future, but this will get you on the right track to successfully managing the workload.

Ron Burdge
http://www.thelawcoach.com/

Helping attorneys succeed, every day.

Communicating With Your Jury - Using the Opening Statement Opportunity

Today we are continuing our series on the art of communicating with a jury during your trial. It starts when you walk into the courthourse and continues during voir dire and everything you do throughout the trial but the next step in our discussion is your opening statement and both the direct and indirect communication that takes place in that phase of a trial.

There have been volumes written about what to say and how to say it in an opening statement so we will keep it short here.


From the movie My Cousin Vinny

 First Rule: Never go to trial in a case that you think you will lose. The jury can "smell" a trial attorney’s lack of confidence in their case. If you think you will lose, you will lose.

Your confidence in your case must be on display from the very start. It shows in your stance, your demeanor, the words you say in your opening - and how you say them. By the time you are finished with your opening statement, the jury must have one single "take away" thought - that you believe in your client's case to your very bones.

That level of conviction, displayed solidly and with confidence, will make the jury think to themselves, "if their attorney is that convinced, he must really be right."

 Second Rule: Never give a weak opening. No one wants a wimp for a trial attorney. And, just as the jury can smell your lack of confidence, your opposing counsel can smell blood in the water. If you don't think you can win the case, then you shouldn't be in the courtroom with it.

 Third Rule: Never promise more in your opening statement than your evidence will deliver in the trial. There's an old business rule that goes something like this, under-promise and over-deliver. That same rule should apply to your opening statement. You have to say enought to make the jury realize that you are probably going to win the case, yes. But you should also hold back a little, so that you can impress the jury with your evidence even better in the trial.

Promise the jury about your evidence, yes. But then over-deliver on the evidence necessary to win your case with an even stronger conviction expressed in your closing argument.

 Fourth Rule: Keep strong eye contact with your jury. If possible, try to avoid using any crutches during your opening statement. Nothing spells conviction quite like standing in front of the jury box and delivering your opening statement bare naked - meaning no notes at all, merely telling them what the facts are that you are going to prove and why you ought to win and why your opponent ought to lose.

Fifth Rule: Innoculate the negative evidence before your opponent emphasizes it. Every case has both good evidence for you and bad evidence against you. If it didn't, there probably wouldn't be a trial occuring. So, in your opening you must deal with it.

 Don't dwell on it, but explain it away with the same conviction and certainty that you use in talking about your "good" evidence too. You can't ignore it for one simple reason: your opponent will be beating that drum loud and clear because it is all they have got to fight you with.

If you use your opening statement to set the foundation of your personal credibility, then you can begin to build the framework for the jury's acceptance of your truth throughout the trial, as they use your reality of the case to reach their verdict later.



Introduce your trial theme and tell your client’s story in the process. Your trial theme must be appealing, simple and fit the evidence. Most of all, your opening should simply tell your client’s story and explain how the law means that they will find in your favor. "Your favor" is how we put it for one simple reason: When the jury finds in favor of you, they will find in favor of your client.

Ron Burdge

http://www.thelawcoach.com/

Helping consumer lawyers win cases

for over 30 years.

Lawyer Coaching Topics We Cover, click here



The E-Myth Attorney, why most legal practices don't work and what to do about it

I just got back from several days out of town last week and something extraordinary happened during the 6+ hours I was in the air. This is way off topic so grab a cup of coffee and let me tell you about it.

In November 2007 Janet Varnell and I discussed how to apply Michael Gerber’s E-Myth principles to Consumer Law lawyering in a presentation titled “Lawyering E(entrepreneur) Myths” at the annual NCLC Consumer Rights Litigation Conference in Washington DC. Little did we know that within four years Gerber would publish “The E-Myth Attorney: Why Most Legal Practices Don’t Work and What to Do About It,” a companion volume to his original “The E-Myth” book.

We won’t take credit for it, certainly, but it turns out that Janet and I were right in our thoughts on how the E-Myth principles could be applied to Consumer Lawyers and many of the lawyer E-Myth ideas we talked about back then have made it into print.

While they do teach us how to be lawyers, they don’t teach “How to Run Your Business” in law school. Gerber’s new book should be mandatory reading for third year law students. It is that good. And if you are a struggling lawyer looking for a way to free up your life and get on solid financial footing, this book is for you. It is the book that Janet and I should have called Gerber up and offered to help him write.

But we didn’t. That credit goes to Robert Armstrong and Sanford Fisch, two attorneys who were inspired by the first E-Myth book. Now you get a chance to look over their shoulder and find out how to apply the E-Myth principles to successfully running your own practice. It doesn’t matter if you’re a young pup fresh out of law school or an old dog like me — there’s plenty here to apply to every stage of your law career — and it’s never too late to teach an old dog a few new tricks.

This book is full of so many great tips and advice that it should be on every Consumer Lawyer’s night stand. Don’t sit it on your desk and promise yourself that you’ll read it right after you clear that stack of papers next to it. Don’t kid yourself. Get away from the office and grab some quiet time when you can take this thin 178-page volume to heart and mind.

It’s a quick and easy read but the principles in it will both inspire and aggravate you. Inspire you because you’ll likely find yourself saying “Yeah, that is absolutely right” and aggravate you because you add “why didn’t I think of that years ago?” Either way, I promise you will get more out of this book than you likely learned about lawyering in your entire first year of practice. In fact, you’ll probably recognize for the first time some of the many mistakes you made at the start of your legal career and also see, maybe for the first time, how you could have (and will from now on) avoid them.

Some of the chapter titles include “On the Subject of Money,” “Managing the Unmanageable,” “Your Client Loves You, He Loves You Not,” “What time Do You Have?” and “The Reason Behind the Work.” Each of those, and all the other 26 chapters are invaluable.

There are chapters that explain why lawyers aren’t business people and how to fix it, the importance of knowing your numbers, the good and the bad and the ugly of handling people-clients-associates-and-others, the four kinds of money, how to handle a prospective client who asks for a fee estimate at the beginning of a case, why a business plan matters, the importance of time to a lawyer (hint: it’s a lot more than just Abraham Lincoln’s quote), why systems matter in a law practice, what to do when change comes to your practice and to your life, and, of course, the purpose behind your law practice.

The authors talk about so much that this review can’t possibly do the book justice. So instead I’ll just tell you to get the book and then pay particular attention to the wisdom found on these specific pages: 16-22, 26, 29-30, 32-43, 44, 55, 67, 73, 93, 99-100 — oh heck you should pay attention to the wisdom found all thru the book.

At the beginning of this review I said that they should make this required reading for every third year student. Actually that’s wrong.

It should be the first thing a new law student reads at the start of law school - so they get exposed to the importance of the business side of practicing law right away.

And it should also be the last thing a graduating law student reads - so that they can then see and better understand the business principles it teaches in the light of the legal training they have completed.

As Professor Kings field said in the 1973 movie, The Paper Chase, to his new law students, “You come in here with a skull full of mush and, if you survive, you’ll leave thinking like a lawyer.” If you read this book, you can start thinking like a business person too. And if you don’t think like a business person too, well, then thinking like a lawyer won’t be enough to save you from yourself.

As I read this book on the airplane last week, I recalled Janet and I saying many of these things to the 50-plus attendees of that Doing Well While Doing Good seminar back in 2007. It felt good to know that Janet and I were right in some of our thinking about the E-Myth principles and their application to Consumer Lawyers. At the same time, there was so very much more to it.

Get this book. Read it. See for yourself.

And if you know someone graduating from law school, give them your copy after you read it. They are going to need it.

Ron Burdge
www.TheLawCoach.com
Helping Lawyers Do Their Best Everyday