A Civil Justice System With No Trials

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This article was first published in the Texas Bar Journal‘s December 2013 issue. — Ed.

The steady erosion of the American trial is our dirty little secret. A majority of the American public might be surprised to learn that there is indisputable statistical evidence that the number of jury and non-jury trials in our country is, and has been, sharply declining, both in absolute and relative terms.1 For example, in 2010, only 2,154 jury trials were commenced in federal district courts, which means, on average, Article III judges tried fewer than four civil jury trials that year. While jury trials in federal court obviously have declined, the decline in bench trials has been steadier and steeper.2 Even though the number of lawyers continues to increase, the number of trials is still decreasing.3

Nor is the decline in the number of cases tried due to a reduction in case filings. To the contrary, both civil case filings and dispositions actually have increased five-fold in the federal courts during the same time that the number of trials—both the rate of trials as well as the absolute number—has diminished substantially.4

What do these trends portend for the future? They mean that, despite its historical importance and value, we are slowly but surely losing one of our most precious institutions—a trial by jury or even any trial at all. James Madison, the drafter of the Seventh Amendment, would be puzzled by how we allowed this to happen, given his view that “[t]rial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”7

See, A Civil Justice System With No Trials

When a Witness Has Selective Memory

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Some witnesses have a crystal clear memory about events unfavorable to your client, but express sweeping memory loss on other contemporaneous events. Here’s how to attack such selective memory.

The following line of questioning can be used in both criminal and civil cases. Even if it doesn’t get concessions from the witness, it will remind the jury of the frequent untrustworthiness of memory.

See, When a Witness Has Selective Memory

10 Tips for Lawyers Writing in a Time Crunch

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Back in law school, you would have had at least two weeks to complete a writing assignment. With those two weeks, you would have had ample time to research, analyze, outline, draft, revise, edit, and polish. You would have devoted significant attention to large-scale, mid-scale, and small-scale revisions. You might even have been able to put the writing aside for a day to edit with fresh eyes. Sadly, those days are gone.

When lawyers have the time, of course they write well. The demands of the legal profession, however, can make even the best writer feel like a Top Chef contestant completing a Quickfire challenge, in which accomplished chefs must create, cook, and plate a recipe in under 30 minutes. Given the time constraint, the dishes are often incomplete or inedible. Similarly, when experienced lawyers are rushed, their writing might also be imperfect or hard to digest. Facing crunch time can make the most talented question their abilities and can leave both culinary and legal clientele with a negative or inaccurate impression.

There are, however, ways to control the havoc that time pressure can wreak. Just as some Top Chef contestants can successfully complete the same tasks in 30 minutes as they can when working under less-pressured conditions, so can lawyers—whether they have months, weeks, or hours to finish a writing project.

See, Tips for Lawyers Writing in a Time Crunch

Blind Men And An Elephant

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An easy and lazy habit that you can have as a lawyer is only seeing things from the perspective of a lawyer. Lawyers are trained to deconstruct problems and look for weakness, to approach situations with a critical perspective. But that does not mean that it is the only perspective that you need to have. One of the most voiced complaints from clients is that their lawyer doesn’t understand their view or their perspective on a case or matter.

This is likely due to a breakdown of communication between the lawyer and the client, and more than likely it is the lawyer’s fault. As a lawyer, it is very easy to fall into entrenched patterns and lines of thought — so easy that it is often difficult to step back from your role as a lawyer, and look at a case or a problem as a layperson or client. Harvard professor Theodore Levitt most aptly summed up this problem with his famous observation: “People don’t want to buy a quarter-inch drill. They want a quarter-inch hole!”

Source – Blind Men and an Elephant

The Risks of Innovation Through Technology in Legal Practice

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With the increased use of technology in legal practice, it is imperative that we remain aware of current best practices and precautions. While the use of such technologies may increase productivity, we must first be sure to protect our client and business.

Lawyers have always been innovators; any time an attorney crafts a novel legal theory or creates a contract to manage a new type of risk, he or she is innovating. Business innovation, though, has been less common among lawyers, but in recent years, technology has driven and empowered attorneys to pursue innovation in all areas of their practices. Faced with competitive pressures from lawyers and other legal service providers throughout the world, cost-cutting mandates from clients, and a need to remain relevant, attorneys are adopting technologies for research, collaboration and communications at an astonishing rate.

These technologies, however, are not without risks of their own. Attorneys may face ethical and business risks, and may entangle their clients in risks as well, through misuse or misunderstanding of innovative technologies. Among the biggest potential pitfalls:

See the link for more, The Risks of Innovation Through Technology in Legal Practice.

One-on-One with Delaware’s Two Kings of Criminal Law

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Hurley vs. Maurer

During my clerkship in the New Castle County Court of Common Pleas, there were two criminal defense attorneys who stood apart from the pack. Two attorneys whom law students watched intensely, eager to derive anything they could from an observation. The two attorneys, at one point, represented Tom Capano in Delaware’s most popular murder trial. Those two attorneys are Joe Hurley and Eugene Maurer, Jr. – Delaware’s kings of criminal law.

The first voir dire (jury selection) that I observed was that of Joe Hurley. Amazingly, I still have my notes. Many of my thoughts are validated by the conversation between Hurley and Maurer. I remember thinking Hurley was a bit dismissive to his peers, but incredibly sharp with the judge and jury. He was great at commanding the room and phrasing things in plain language, a skill known to many as, “dumbing it down”. All the while maintaining a wry, clever, and edgy kind of humor, keeping it interesting.

Hurley’s client was accused of resisting arrest and assaulting an officer. His client was a fairly large intimidating man, but Hurley did not shy away from the facts. Instead, Hurley used his client’s size and demeanor to his advantage. Like a skilled Aikido fighter, he motivated your mind’s initial impression, connecting it with assumptions the police must have made at the time in question. To use force first or risk danger. The tactic took a strong defendant and made him appear vulnerable to the jury. He was now the victim, but not in a corny charitable case sort of way, but an unfortunate victim of circumstance. Needless to say, at the closing of the case Hurley obtained a positive verdict from the jury for his client.

While I was not so fortunate, to sit in on one of Maurer’s cases, I did have the opportunity to review a large number of his motions and briefs to the court. His style was revered. Extremely confident but not cocky.

Reading the conversation between the two, one can identify numerous similarities: Impeccable Work Ethic, Confidence, Self-Awareness, and Respect. All excellent traits. But, even Delaware’s top criminal minds made mistakes in their career. In fact, Hurley’s history shows that a large number of plans may not work, but with hard work and dedication one may become successful. While the independent causes for the success of the two men may be argued, one thing is for certain, their work ethic is superior to all and second to none. They both possess extreme confidence in their ability, along with a strong sense of respect and self-awareness. Mr. Hurley may come off as arrogant but it appears that he is quite aware of tactics and Maurer’s confidence, while a bit more polished, remains glaring.

I question whether this interview would have been possible early on in their careers? Its no coincidence that they were able to converse candidly, often complimenting and insulting each other in the same breath. The awareness of themselves and their opponent developed over time. Lessons reinforced through experience and crossing paths paved the way for an intimate but humorous conversation. The result is priceless and I am thankful to Delaware Today for featuring such a great article. I only hope that one day I to can take part in a similar conversation with one of my peers…

See the interview by Delaware Today here (begins in the middle of article).

No Mercy for Pro Se Litigant

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No Mercy for Pro Se Litigant

Pro se parties normally enjoy relative leniency from the courts. But in a recent case before the U.S. Court of Appeals for the Third Circuit, an unrepresented party’s behavior was so egregious with respect to discovery obligations and compliance with court orders that the appellate court affirmed a more than $1 million default judgment, including punitive damages, against the pro se litigant. The ruling reinforces the importance of being responsive to opposing counsel and the court.