Thursday

Things a Lawyer Can and Can't Do

Ethics and Lawyers
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
Helping Lawyers do Their Best, for Over 30 Years

Wednesday

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
Helping Lawyers Help People, Everyday

Thursday

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

Monday

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
Helping lawyers win cases for more than 30 years.

Sunday

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
Helping Lawyers Win Cases For Over 30 Years

Friday

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
Helping Lawyers Win Cases since 1978.

Tuesday

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
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
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
Helping lawyers win cases, for over 30 years.

Thursday

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
Helping Lawyers Helping Clients

Monday

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).

Tuesday

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
Helping Lawyers Help Clients, Everyday.

Monday

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
Helping lawyers, helping clients, everyday.

Thursday

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.

Wednesday

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
Helping attorneys, helping clients

Tuesday

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
Helping lawyers helping clients

Saturday

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
Helping lawyers helping clients
for over 30 years

Wednesday

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
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
Helping Lawyers Helping Clients.
Since 1978.