Ohio - Arbitration Clause Can't Take Away Statutory Rights

Arbitration sucks, we've said it before and we'll say it again. Arbitration sucks. 

But whatever you think about it, in Ohio a binding mandatory arbitration clause can not be used to take away a consumer's rights under Ohio's Udap law, the Ohio Consumer Sales Practices Act. Still, more and more arbitration clauses are trying to not only take away a consumer's right to go to court, but to also change the laws they can use.

Ohio's Udap law, the CSPA, makes it illegal for any merchant to do anything that is "unfair or deceptive" (the words in the law) to a consumer. And if they do, then the consumer may be able to recover triple their actual damages, attorney fees, and up to $5,000 in non economic damages for aggravation and inconvenience, etc. Car dealers hate this law.

Its no wonder then that a Cleveland area internet-based car dealer, was sticking mandatory and binding arbitration clauses in its sales paperwork with consumers. But it went one step further and added a sentence that said "The non-prevailing party shall pay, and the arbitrators shall award the prevailing party's arbitration costs and expenses, including reasonable attorney's fees." Lawyers call that a "loser pays" clause and it means that if you are going to sue the car dealer then you sure better win or they might go after you to make you pay their attorney fees. But that's not what the the law in Ohio says.

In other words, some car dealers not only want you to not be able to go into a courtroom where the public can find out what they did to you, but they also don't want you to be able to use consumer protection laws against them at all. Ah, c'mon, guys, don't you think that's a little too much?

Well the Eighth District Court of Appeals thought so when it decided Tamara Hedeen v Autos Direct Online, Inc. on Sept 25, 2014, and tossed out the arb clause.

Dayton, Ohio attorney Beth Wells reports that the appellate court ruled that "where a consumer's CSPA (Ohio's Udap law) claim is subject to binding arbitration, limitations on a consumer's right should not be allowed by a private arbitration forum." A couple of pages later in the court decision, the appellate judges threw out the arbitration clause entirely and held that the consumer buyer now has the right to go to court.

In the consumer's case, the court noted, she had bought a used 2011 Mercedes online for $28,000 and later discovered that it had sustained over $20,000 in undisclosed damage and over $7,000 of the damage had never been repaired. It's things like that which explain why some car dealers don't want consumers to go to court at all. She filed her case against the dealership with claims that they had committed unfair and deceptive acts in violation of Ohio's Udap law and Ohio's little-known Motor Vehicle Sales Rule, OAC 109:4-3-109.

A public court, where the public can see what is happening in our Justice system - that's what Justice should be all about. A Big Round of Applause to Attorney Beth Wells on a job well done.

The Law Coach

www.thelawcoach.com

Helping Lawyers Help Clients

Women Lawyers Just Don't Handle Trials The Same

Now, there's nothing wrong with that. It's just a fact. And every man who has tried a case against a woman attorney knows it.

They view things differently. And that gives them a different viewpoint on the witnesses, the evidence, the Jury - simply everything.

And perhaps that difference can be their most distinct advantage in a courtroom.

Learning to use that advantage may be the key.

Photo from http://woman.thenest.com

That's why if you are a woman lawyer you may want to be in New Orleans in September. 360 Advocacy puts together some terrific conferences and Sept 14 to 16 they are gathering some of the best women trial attorneys for a conference for women, taught by women, aimed at maximizing trial skills for women. Frankly, it's a terrific idea.

The CLE conference is promoted as "Trial Skills from the Woman’s Perspective features a faculty of women trial lawyers and trial consultants who will not only teach you all aspects of litigation, but will teach you those skills in ways that make sense to you, have the look and feel that resonate with you, and allow you to use your unique skills and approach to your best advantage."

Although 360 Advocacy typically focuses on topics related to the plaintiff personal injury bar, we have attended similar PI trial skill conferences before and found the trial skills they teach are mostly universal and apply to most areas of law - the focus is often on trial skills and not just a single area of law.

If you can go, it's very likely worth your time and money. And if you aren't aware of the 360 Advocacy group, they have a lot of useful white papers, resources, and useful info.

Ronald Burdge

www.TheLawCoach.com

Helping Lawyers Win

Trial Skills from the Woman’s Perspective features a faculty of women trial lawyers and trial consultants who will not only teach you all aspects of litigation, but will teach you those skills in ways that make sense to you, have the look and feel that resonate with you, and allow you to use your unique skills and approach to your best advantage. - See more at: http://www.360advocacy.com/conference-details/trial-skills-from-the-womans-perspective/#sthash.EqHa5D1w.dpuf

Now YOU Can Follow the CIA

 
The CIA is famous for its secret legal briefs to justify electronic eavesdropping and following of all of the rest of us. Well, it turns out that now you can follow them too.

Although burdened with all of the spying work, the CIA found time to open their own Twitter account on June 11. No doubt before doing so they put a team of their crack agents together on what their first tweet should be.

While we can never know the months of research, meetings, group conferences, and thought that went into it, they did come up with an astounding and insightful first tweet, "We can neither confirm nor deny that this is our first tweet."

Yeah, that took a lot of work. Knowing who it is though, the real question is - if you "follow" them, will they also "follow" you? Be careful out there.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Help Clients. For More Than 25 Years.

Lack of Good Faith in Mediation Prompts Sanctions

A federal Magistrate Judge in Pennsylvania imposed sanctions against a corporate defendant for failing to mediate in good faith. It's a warning with reading about.

In Grigoryantis v Safety-Kleen Corp., US District Court, WD, PA, Case No. 1:11-cv-00267, on May 28, 2014, Magistrate Judge Kelly found the defendant liable for attorney fees and plaintiff's travel costs because the defendant attended a mediation with no intent to make a settlement offer because discovery had not concluded in the case and it was against their policy to make a settlement offer until discovery was closed.

The court noted that the defendant had opportunities to advise the court of its policy and thereby avoid the mediation scheduled but it failed to do so.

While the plaintiff had complied with the court order to provide a pre-mediation settlement offer to the defendant, the court also noted that the defendant did not comply and did not provide a pre-mediation settlement offer to the plaintiff. Apparently plaintiff's counsel was notified of the defendant's "no offer policy" by the mediator at the mediation itself.

In its 14 page decision the court noted that other courts had imposed sanctions in similar situations.

The moral of the story for all lawyers is simple. Never attend a mediation without authority to actually engage in the mediation process. If your client does not want to settle yet, then the mediation is premature and should be postponed. If you are not in a position to fully advise your client on all things necessary to negotiate, then don't schedule a mediation in the case.

The legal process can be hard on the parties and the lawyers and even, at times, on the court itself. Compounding that with a lack of good faith can result in serious damage to your reputation and your client's interests.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Win Cases For More Than 25 Years

What is the best source of good brief writing tips?

Scribes, the American Society of Legal Writers, often sends grammar, writing, drafting and other tips to its members and each one is a jewel. It seems like every day or two I get one of these email tips and each one is to the point and worth repeating to new associates and young attorneys - actually anyone who writes legal documents of any kind and wants to stay on top of their game.

For instance, today's grammar tip came from Ann Taylor Schwing and is a brief guideline on how to use bullet points. "Often a listing of specific items need not or should not be numbered. Numbers may incorrectly indicate a hierarchy or ordering of the items. In these cases, bullets work well."

She is right, of course, but in spite of the hundreds and hundreds of legal documents I have written, drafted, and filed in courts all over the country, it never occurred to me that there was a logical and good reason not to number items in a list. She goes on to explain how to make bullet points read well and be recalled well. Her tip is well worth a read --- but then again every tip from Scribes is well worth a read.

Scribes membership is open to all attorneys and their avowed purpose is to clear, succinct and forceful style in legal writing. Membership cost is remarkably inexpensive too (just $65 a year).

This started out to be just a pointer on where you can get some terrific tips on legal writing style but perhaps has turned into an endorsement of Scribes membership. Take it as you will, but Scribes writing tips (and Scribes itself) is a terrific source and reminder of how to improve and keep your writing quality at its top level. We would gladly pay $65 a year just to get their constant emailed writing tips. The rest of the membership benefits are bonuses.

Ronald L Burdge

www.TheLawCoach.com

Helping attorneys do better for more than 25 years

Practicing Law Profitably

Here's a link to an updated version of a presentation on Practicing Law Profitably that was given in 2009 at a national conference in Philadelphia. Think of it as an early Christmas present from us to you!

Ron Burdge

www.TheLawCoach.com

Helping lawyers help clients for over 25 years

Did a Penguin Sit on Your Web Site?

Penguin is the new sheriff of search results.
Watch out for the itchy finger on the trigger,
it could be aimed at your website.

The Penguin was turned loose by Google. That's bad news for some lawyer websites - but also a golden opportunity for many others.

First the bad news. If you don't know what Penguin means then check your web site analytics and see (you do have analytics installed on your web site, don't you?). Analytics gives you all sorts of measurements on your web site activity. Sort of a stethoscope by which you can tell if your web site's heart is beating. A strong heartbeat means your phone is ringing and new potential client emails are coming in.

Some reports from lawyers are that their web sites are getting only 60% to 70% of the traffic they got the month before Penguin walked all over them. And one lawyer reported their analytics show they were only getting 12% of the web site traffic they were getting before Penguin - that is a very serious drop akin to falling off the mountain. They are in total website rebuild mode right now. Maybe you should be too.

Do you know what Penguin did to your web site ranking? Well, you better find out. Take half a dozen of your keywords and run a search and see where your web site is in the results. That can quickly give you an idea of how much work lays ahead of you or your SEO.

If you are getting fewer client calls than last month, if you are getting fewer web site visitors than last month, if you are getting fewer email inquiries from your contact page than last month, it very likely could be because Google's Penguin sat on your web site and flattened it with a search engine ranking penalty that knocked you backwards in the results ranking for your keywords.

Most lawyers and law firms don't have a search engine optimization web site techie full time. Most don't even have one part time. Most just had their web site built a year or two or more ago and are now just resting on their site, maybe adding some new content every few months. Maybe not. Well, Google's Penguin won't let you do that anymore.

Every once in a while search engines re-tune their engine. They call it their algorithm - that's their super-secret formula that their search engine uses to decide what order to put the search results in when someone runs a search on, say, "divorce lawyer" or "auto sales fraud" or "lemon lawyer near me" etc. Many lawyers put their keywords in their website long ago and their web site has been on autopilot ever since.

Well, on May 22 we all experienced what some SEO folks are calling a massive search result change in rankings - but it didn't happen to everyone. For some, they stayed in about the same place in the search rankings. For many though, there was a very serious drop.

Google's effort was apparently intended to discredit what is perceived to be "spammy" web sites which show little real and meaningful content or maybe lots of links out (what we called "link farms" back in the early days). It's not that links are bad, but paid links created just for the sake of making money from doing the linking has never been like by Google.

Now for the good news. There's an opportunity here for every lawyer that wants to show up on the first page of Google search engine results.

A lot of lawyers have no clue that Penguin is on the loose, pushing their website further and further down into the search results. For those who know and act on it, they have a chance to surpass long-established lawyers and law firms and leap ahead of them in their search results. For them, Penguin could bring a smile to their face.

Penguin now recognizes what Google calls "hilltops" - those are what the minds at Google have deemed to be valuable content-rich web sites of authority in their field. Typically, those web sites rose significantly higher in search results (thus, became a hilltop), while web sites that Google thinks are less authoritative fell into the "valleys" of the search results - more like being thrown out into the desert, we'd say.

Fundamentally, it looks like Google's new Penguin search algorithm is putting a high emphasis high-value, entertaining and informative, authoritative content - and on what SEO whitehats call "earned links." Those are links that someone makes to your web site simply because you have great content on it.

Does that mean that outbound and inbound links to and from like-minded websites is worthless now? No, because Google (like all search engines) looks at both outbound and inbound links for your site to see if the linking is with relevant content and Google is smart enough to figure out the difference between a relevant link and a spammy link.

Will things change anytime soon? Not likely.

But can you really afford to sit by and do nothing for now? No.

What can you do? The SEO crowd seems to still be debating that one. But there is a growing consensus that there are a few things that can have a faster favorable impact on your search result ranking.

First, start building what Google calls "assets" into your web site pages. Those are things like downloadable ebooks, white papers, pdf documents, your self-authored studies, etc. Google likes to see them because they show thoughtful analysis and not just marketing. And they can start to earn you valuable inbound links from those hilltops. So start to work on driving mentions of your web site content by others who are not on your web site along with those valuable inbound links. Add new content that informs and entertains. That will earn links and Google is looking for them because it considers them to be evidence that your web site contains authoritative content that others value.

Good inbound links are more important than ever.
The Penguin says so.

Second, work on your links. Make sure the outbound links on your website, and the inbound links coming to your website, are the right links. If you have links out to lawyers in other areas of the country who practice law in your field, that's okay because their content is relevant to your content. But if you have links going out to websites whose content is not relevant to your own web site content, now might be a very good time to prune them back or get rid of them altogether.

So if you don't have links on your site which go out to other relevant websites with valuable and useful content, now might be a good time to start building them.

One idea for lawyers that serves both purposes, creating your on-site assets and creating inbound links at the same time, is to publish Legal Guides on Avvo which can be a source for your own on-site content. Combine that with active participation in the Q-A section at Avvo and you can build both links and traffic to your site. You can see examples of Avvo Legal Guides by clicking here.

There's a lot more you could do, sure, but you can start with going over your website in detail and fine-tuning every aspect of it.

There's a solid explanation of what Penguin can mean for you, posted by Chad Pollett, over at ContentMarketingInstitute.com, along with a copy of Google's pre-Penguin-launch video. If you care about being on Google's first page - and you should - then watch the video and read Pollett's explanation. It's sort of like, this is what they said before and now that they have done it, here is what it means to you.

Now, it's time for all of us to get to work so we can please the Gods of Google, who realize full well that they are the elephant in the search room that can not be ignored.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Helping Clients Every Day

Free CLE Books from OBAR 2 Days Only

OSBA, the Ohio State Bar Association, has unlocked its hundreds of CLE course handbooks for free access by all Obar members until end of day Wednesday, May 15, 2013. Come and get 'em, folks!

Obar has over 300 ebooks, in 3 different device formats, all available for free but you have to move fast.

You can download any of them for free. If nothing else, you should save those of interest to you for later reading.

You can access the free OSBA ebook library right now by clicking here www.ohiobar.org/ebook. Some of the very best legal minds in the country have authored these Continuing Legal Education course books.

OSBA

This is your one and probably only chance to get thousands of pages of great practice info on all sorts of topics, tech tips, trial practice advice, negotiation strategies, probate practice advice, going paperless, using movies to learn trial practice techniques, understanding financial statements, business law, depositions, legal writing, using powerpoint, debt collection laws, building your practice, appellate practice, jury reading, better memory tips, using adobe acrobat, getting organized - you name it and they've got it and it's free.

Check it out today. After tomorrow, it'll be too late! And you can't get a better price than free, folks!

Ronald Burdge

www.TheLawCoach.com

Helping lawyers win cases and get more clients, since 1978.

AAA shows no neutrality in arbitratiion solicitations

Justice in an Arbitration Straight Jacket
Pic source - Consumerist.com

In public the American Arbitration Association touts itself as a neutral arbitration provider that helps people "resolve conflicts out of court." Well, actually that does not appear to be the real purpose of AAA.

The real purpose appears to more likely be to cater to the interests of large corporations and prevent consumers and ordinary people from being able to exercise their constitutional rights. If you think AAA is a neutral group that takes no interest in who is right and who is wrong but just wants to help people find cheap and fast and easy solutions to legal problems, you'd be wrong.

The are doing full blown solitications and training sessions to help teach big business how to use mandatory binding arbitration to sneakily take away consumer rights and keep people from ever being able to publicly air their gripes in a courtroom - and, of course, AAA is making more than a few bucks in the process too.

You can read more about it at Public Justice, where folks like Senior Attorney Paul Bland are dedicated to protecting people and promoting open access to American Courts and Justice.

To learn more, check out Twitter at #forcedarbitration, click here.

This was part of what we blogged about before when we contrasted the high controversy over gun rights with the total lack of controversy over your court rights. It all brings to mind the old saying about "snooze, you lose."

Every chance we, as lawyers, get - we should be telling our clients to reject arbitration clauses whenever some business tries to foist it on them. We should be leading the charge and encouraging others to come along for the ride to restoring our rights.

After all, it is so very true that Arbitration Sucks - and it is sucking Justice right out of our lives everyday.

Ron Burdge

www.TheLawCoach.com

Helping lawyers, everyday.

What Objections Are Proper in a Deposition?

Deposition arguing is never good

Many attorneys continue to be perplexed over what objections are "proper" when defending a deposition. Well Susan Minsberg gave a terrific answer at Lawyerist.com. Turns out that there are only 5 proper objections and those proper objections may be different than what you and I thought.

Her blog on it is located here Proper Deposition Objections. It's a good refresher reading.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Win Cases Since 1978

112 Best Business Books Collection

Internet Marketing Expert Andrew Lock

There are few marketing people who know Marketing, and Internet Marketing in particular, as well as Andrew Lock. He's been at it for years, helping businesses and entrepreneurs understand how to reach people with their products and ideas.

A sought after speaker who pratically invented the video podcast business (with a title like "Help, my business sucks" how could he lose?), for several years we have talked about his amazing and remarkable knowledge of the marketing process and his incredible grasp of using the internet (and much more) for marketing.

Want to know how he got so smart? Well, maybe it had something to do with his personal library of the very best business books written by the very best people.

If you also read business books, like us, and just don't have the time to see what's new unless you are walking through an airport - here's your chance to get a peek inside his library. Heck, you can walk away with 112 of his best books if you want.


Andrew Lock's 112 Best Business Books Up For eBay Bids

Andrew has boxed up 112 of the best business books he has ever read and put them on eBay. They just went up and for about a dime a book, you can get the best business books written by the best business minds in the country. The current bid is less than $12 (as of Nov 21, 2012) and there are 6 days before the sale closes.

We've got some of these books and have read others in his collection but certainly not all of them. We highly recommend bidding on the Andrew Lock Business Books Collection. And if you get them, you'll have lots to read every time you get on a plane - and you won't have to stop in the bookstore and pay publisher prices to do it.

Ronald L Burdge

www.TheLawCoach.com

Helping Lawyers Run Their Business for Over 30 Years

Is Big Money Buying Votes Today?

With so much "new" money being thrown at the election this year, one thing is very clear.

This will be the year when we all learn whether or not the 1% can buy an election with their money. Whether it is true that if you say it often enough and loud enough, people will believe it - whatever "it" may be.

Or, if the people who vote are smart enough, and tenacious enough, to ignore all the negative advertising and just figure out on their own who the best person is for the job of helping them live their lives every day and fulfill their dreams for their families tomorrow.

In one country we know of, by law all the advertising stops two weeks before the election. All the rhetoric dies down. Calmness tries to return. Rational thinking has a chance to take over.

Given the literally hundreds and hundreds of millions of dollars that the "superpacs" have thrown behind the politicians they want us to elect for ourselves, but really just to help them out, shutting off the advertising machine is not that bad an idea. Calm, rational thinking sanity would have a chance to return.

No one can be sure what this election cycle will prove. Not today. Not in the near future either. But one thing is for sure. Only a politician can say that corporations are people. They are not. They are a legalistic imaginary creation. They are not a bad thing. They are not a good thing. They are just a thing.

Legalistic imaginary Things should not be able to buy our vote. We hope they don't buy your vote today.

Ronald L Burdge

www.TheLawCoach.com

Helping Attorneys Help Clients, for More Than 25 years

Things a Lawyer Can and Can't Do

Ethical Things That Lawyers Can and Can't Do

Practicing Law "101" - the rules still are getting ignored. And not always by younger, inexperienced lawyers.

There are some new cases from the Ohio Supreme Court that came out today, dealing with failures to comply with ethical obligations by Ohio attorneys and they serve as a reminder to all attorneys, in and outside of Ohio. Since the same old things happen, it might be good to take a few hints from these recent suspensions.

Attorney Fee Agreements. While most states still do not require a written fee agreement in an hourly rate case, that isn't the case with a contingency fee case. Regardless of that, though, why take a chance on a misunderstanding? Last time we heard, most grievances occur for two reasons - lack of regular client communications and fee disputes. Put it in writing may not be the rule but it is the smart thing to do. 2012-Ohio-5012 (failing to use a written contingency fee agreement; failing to register for electronic filing with Court where case is pending).

Continuing Legal Education. This is a no-brainer - and you would think that it takes brains to get through law school and pass the bar exam, so this should never be a problem. But it continues to result in hundreds of suspensions every year across the country. You have to comply with your state's continuing legal education requirements. No if's. No but's. No way around it. 2012-Ohio-5004 (failing to maintain continuing legal education requirements).

Giving Legal Advice While Suspended. Another no-brainer. It is hard to understand how this one can happen by any intelligent person, let alone a lawyer, but apparently it can. 2012-Ohio-5004 (giving legal advice while suspended).

Failure to Cooperate. If you get a letter from the Bar Grievance Committee, ignore it at your own peril. Merely failing to cooperate with an investigation is, all by itself, grounds for disbarment or suspension. 2012-Ohio-5004 (failing to cooperate with investigation).

Trust Account Screw-ups. Okay, so you have a Trust Account. Now use it. And use it right. Don't just throw all the cost deposits and settlement money in and figure it out later. And messing with it? You think the bank doesn't have records? If the Bar investigator doesn't get a straight answer from you, it doesn't take much to get the bank records and figure it all out - without much any help from you at all. Keep precise and accurate Trust Account books. Balance them regularly. Know how much each client has in the Trust Account. Oh, and keep your own money out of it. 2012-Ohio-5014 (failing to reconcile Trust Account monthly; failing to maintain individual client records of Trust Account funds).

Practicing law can be fun (and profitable too), but not if you spend your time dealing with ethics complaints too.

Ronald L Burdge

www.TheLawCoach.com

Helping Lawyers do Their Best, for Over 30 Years

Kentucky - the Only Bar Assn to Offer Free CLE

We belong to the State Bar Associations in both Kentucky and Ohio, along with a number of local bar associations. Kentucky, however, is unique in what it gives back to its members.

In a time of tightening budgets, Kentucky's judicial centers have suffered the same budget cuts as other states, if not worse. 282 employees statewide were cut, $25.2 million cut from the Judicial Branch funding, and repeated trimming. They even imposed three furlough days during 2012 when all non-elected court personnel stayed home and offices closed.

But the state Bar Association continues to do the one thing they have done for years for their members. Free CLE.

It's All the CLE You Need and it's Free.

Like other states, Kentucky has a mandatory continuing legal education requirement - but with a difference. They also give an annual Fall program that meets the CLE requirements for free to KBA members, the Kentucky Law Update. It is a remarkable member benefit in these continuing tight times for the legal profession.

The program goes back to 1984 and is presented annual in various cities across the state so it is convenience for all bar members. It is designed to be of value and use to all members, regardless of their years in practice. It is a terrific member benefit.

You may think that membership dues for KBA must be a lot higher than other states, right? Wrong. It is actually just a few dollars apart from our Ohio State Bar Association membership dues ($305 in Ohio, $310 in Kentucky) - where there is no free CLE for members. So five bucks gets you all the CLE you need, including ethics. That's a bargain.

It seems obvious but also seems to be ignored - the fact that CLE programs are often presented by association members who get paid nothing for their effort (although they do get "bonus" teaching CLE credits), so why doesn't EVERY state and local bar association do what Kentucky does? You'll have to ask your state and local bar associations that question.

This is one area of a lawyer's life where Kentucky does it better than the other 49 states, without a doubt. But for those of us who are also Kentucky lawyers, we just smile.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Help People, Everyday

Getting the Judge to Yes, Part 1

A happy judge is a friendly judge

We all know that if your judge understands the merits of your case, it not only makes the legal process easier for you and your client, but it can be a tremendous boost to more quickly getting a fair settlement too. Here's part one of the discussion.

When it comes to getting a trial judge to say and do the things that help you press opposing counsel to settle with you though, the judge may not start out believing in the merits of your side of the case and he/she may never get there without your help. The time for you to start that process is not when you are first standing in front of the judge.

If they don't understand the reasoning behind the law or at least emotionally sympathize with your case or your client, you'll have a tough time from start to finish. While you may think that appellate judges may be smarter about the Law in some respects, and that may help you post-verdict, the simple truth is that a settlement sooner had means settlement money of more immediate use - and that can be valuable to both you and your client. It also makes your life easier.

Getting the judge on your side starts first with drafting the Complaint in a way that is reader-friendly and rouses emotional appeal of the reader, be it the judge, a clerk, or a local reporter cruising through the clerk's office that day just looking for something to write about. Remember, the Complaint is the one document in a case file that many judges will actually read, sometimes before an Answer is even filed (besides, the Answer hardly ever really says anything meaningful or detailed anyway).

You might as well make your Complaint interesting and take advantage of the opportunity to educate and entertain. Your goal is to make the reader finish reading it and say to themselves "what the defendant did here is just wrong." 

Law is Generally Rooted in Morality

Notice that I did not say that you want the reader to say something like "the defendant violated Revised Code number so and so." That's because all laws are fundamentally based on morality and if morality isn't on your side, the law probably isn't going to do you much good in the long run. So put enough well-worded info right up front to give basic facts in a readable way that shows your client was wronged.

Notice that I said both info and facts. The facts tell the story of what happened but it is the info that explains why what happened is also a moral wrong. You need both of them to tell a persuasive story of wrongful conduct. 

The first few paragraphs of your Complaint is not the time to lead the horse to water and then cross your fingers and hope that they will figure it out. Be blunt. Be complete.

One of the best opening paragraphs I ever read in a Complaint sounded like the opening few minutes of a 60 minutes story or one of those (real) news magazine shows like 20-20 or something, using plain ordinary words that casually led me to the writer's reality. I grabbed my attention from the start and at the end of it, I knew who was right and who was wrong.

There's an old newspaper rule that can help you and it says that the first paragraph of any story should tell the reader who, what, when, where, why, and how.  That can help you cover the bases but it shouldn't be your goal and you may not want to always include the 5 w's in paragraph one.

With that in mind though, the first paragraph of your Complaint should grab the reader and explain the basic thrust of your case in an emotional way that cries out for justice. Avoid reciting the law, legal citations, and legalese in the first few paragraphs - there's plenty of time for that later. And forget about the elements of a cause of action when you write those first paragraphs - that has nothing to do with it. Think of it as you would your closing argument or opening statement. You want to tell your story and say it in a way that makes them agree with you and your side of the case - very, very quickly and very, very strongly.

That's why we think the opening paragraph should focus on the moral and emotional aspect of the facts at hand and do it in a way that makes the judge decide right away that if what you say is true then you should win the case. We all know that judges can find the law (or the reason) to let you win if they want to do so - you just have to make them want to do so.

An angry judge is not good for you

The place to get the judge on your side is at the start of the case. Mostly because getting raked over the judicial coals later on, well, that is no fun at all. 

During the pretrial and conferences later on, you can talk all you want about statutes and social goals, legislative intent, etc, but at the end of the day you have to have the judge on your side or your life in the courtroom can get very, very difficult for you and for your client. 

And it all starts at the beginning - before you ever enter the courtroom. 

Come back soon for tips on what to do if your case is already going on - more to come.

Ronald L Burdge
www.TheLawCoach.com
Helping Lawyers Win Cases, for Over 30 Years

You Have to Hold Hands With Your Client Once in Awhile

Client Satisfaction matters for the simple reason that people don't hire attorneys that they don't "connect with" from the start. And they don't continue to use an attorney who neglects them during their relationship. And, of course, clients don't return to an attorney with a new case if they are dissatisfied with the way they were treated during their last case.

How does an attorney keep his clients satisfied with the attorney's work on their case? During a recent coaching session that issue came up - maintaining a high level of client satisfaction and avoiding client dissatisfaction. It's a recurring question as the profession continues to have an influx of new attorneys - especially with less mentoring going on than ever.

A good attorney client relationship is the very reason that some attorneys get new clients and why old clients return to them when they need legal help.

Here are 4 tips that can help maximize the satisfaction your clients get in the attorney-client relationship with you.

Talk to your client. Both on the phone and in the office, wherever possible. When contacting a client, the phone should be the first choice. A letter (where time allows) should be the second choice. And email should be your last choice - one to be avoide whenever possible. Case status discussions and strategy sessions with the client need to occur so that the client can see and feel and understand that you are doing your work. Clients need to know that you are mounting your prosecution effort to not just win their case but to also undermine their opponant's side of the case. They need to know that you are on their side from the start and all the way through to the end. You may think they know it (after all, that's what they hired you for), but long passages of time with no communication from you will undermine the confidence they had at the start. Find an excuse to telephone every client at least once every few weeks.

Give them updates. Clients get busy in their daily life and so do we. The difference is that the attorney needs to make sure that the client knows (and sees) that it is their case that is making us busy - that we are working for them constantly. That means periodic updates throughout the handling of their case. You can send letters, emails, case documents, etc. That helps the client see that you have not forgotten their case (even if they haven't gotten a call or a letter from you in a few weeks) and it helps to move their case along through the legal process too. Both of those are exactly what you were hired to do. Working on the client's case, without the client hearing from you, leaves your client in the dark and clients who are left in the dark become upset. An upset client soon feels excluded from their own case and its process. That, in turn, breeds distrust and fear. That can result in the client feeling that you, their own attorney, is just a part of the same legal process that is "getting me nowhere" and "only costing me more money."

Make the client part of your team. Involve your client in every aspect of the case that you can. Give them a role in the case besides being a party to it. They can do internet investigations for you of all the players in the case - the witnesses and parties and experts, etc. It saves you time and saves the client money, both of which benefit the client and the client's case. More importantly, it can help you make sure that you understand what is the most important evidence in the client's case and why. Including the client in your brainstorming and decision-making processes helps them understand what is going on, how they can fit into servicing the case, and what each member of your team is doing to win their case. The client is often the attorney's most important witness. No one knows better what happened to them and what the perceived social wrong is that they want addressed. It is their case and the client needs to have a voice in it and the attorney needs to listen to that voice.

Empathize with your client. No one likes being neglected, left alone, or being misunderstood. Clients, especially. Every once in awhile, when it has nothing to do with the case, ask your client how they are doing and what's going on. A client is a human being with the normal concerns, life, and feelings that you and everyone else has. They need to know that you care about their case, sure, but also that you care about them and their family and how the case is impacting their family. You don't have to always have the answer to the emotional side of their dispute, but just listening to a client can go a very, very long way to cementing a good attorney-client relationship. Most important, knowing what your client is going through is a terrific way to understand the effect that the dispute itself has caused on your client and their family. There is an emotional componant to every civil case, no matter what it is about. An attorney can not understand their case and present it with maximum impact on a Jury, until they understand what the emotional impact has been on their own client. Some clients don't like to talk about it or even think about it. But the attorney needs to know what it is. Jury render decisions based on feelings as much, if nor more, as they do on cold logic and reasoning.

You can see that good client communication is the key an attorney's success. With it, your clients value your work for them, appreciate your talent and skill, and recommend you to their friends and family. Without it, failure is nearly guaranteed.

Ron Burdge

www.TheLawCoach.com

Helping lawyers win cases for more than 30 years.

Naca 2012 AutoFraud Conference Ends as Attorneys Depart Clearwater Beach

There were lots of terrific strategies discussed at this year's biennial Naca AutoFraud Conference, held this year in Clearwater, Florida.
Highlights were too many to mention but it was a great time for learning new strategies and tactics for helping consumers who were victims of car dealer fraud. Between 60-70 lawyers gathered from all across the country for three days of day-long intensive learning sessions.
Naca once again proved its portance to members and consumers as it hosted the training and refresher courses. A big thanks to all the speakers who gave their time to benefit all attendees.
The annual NCLC Consumer Rights Litigation Conference comes up next, scheduled to be held in Seattle in the Fall.

Ron Burdge

www.TheLawCoach.com

Helping lawyers win cases for over 30 years

Clearwater Beach Skyline, Florida, Site of 2012 National Association of Consumer Advocates' AutoFraud Conference

NACA's 2012 Autofraud Conference Will Focus on Trial Practice

The 2012 Autofraud Conference will take place August 3-5 in Clearwater, Florida. Every two years the National Association of Consumer Advocates gathers some of the best car sales fraud and lemon law attorneys in the country for this national conference.

Dana Manner

This year the conference will start off with a two hour nuts and bolts session, followed by two solid days of strategies and tactics and tips for trial work. Sessions will cover all aspects of civil trial work in detail.

Dana Manner, one of Miami's best Naca lawyers and members, will join me to present a special breakfast session on "What Autofraud Lawyers Need to Know About Avvo" and will include marketing tips for Consumer Law attorneys with a special focus on Avvo.com and what it offers to Consumer Law and Lemon Law lawyers for free. Dana wrote a great blog about the session (click here). It should be a great session over coffee and pastries.

If you handle Lemon Law or car sales fraud cases, this is the one conference you can't miss. Contact Chelsea@Naca.net for registration details.

Ron Burdge

www.TheLawCoach.com

Helping Lawyers Win Cases For Over 30 Years

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