Reader offers more trial tips
Paul
T. Moura’s article “10 tips for
young litigators” is one of the very best I’ve read in your always interesting journal. Perhaps
the most important of his 10 points is to keep your eye on the trial to come … even
if you believe the case will be settled.
I
would add two more points that are useful for litigation stress
reduction:
Know
at the outset what the formal elements of proof of your client’s claim or
defense are: Preparation of a complaint or answer must always include research-in-depth into
the elements of proof required for your client’s cause(s) of action/affirmative
defenses to prevail at trial.
Also,
too often young litigators confuse or conflate drafting a complaint or defense
that is not subject to demurrer with drafting a pleading that will prevail at
trial. Stating a cause of action is NOT the same thing as proving a cause of
action. Losing a motion for directed verdict or motion for judgment for failure
to provide evidence on an essential element of proof is likely to create client
hostility. Best to have all those ducks in a row from the outset.
Anticipate
the bogus malpractice claim: For example, if a contract with an
attorney’s fees clause is in dispute, be sure that your clients acknowledge in
writing that if they lose they may be liable to pay the opponent’s attorney’s
fees and costs … which sometimes can exceed the value in dispute. The big
picture here is that it’s best if you draw up a clear list of all the possible
risks that your clients then sign off on. This saves a lot of grief and helps
keep your malpractice premiums lower.
Also,
don’t wax too enthusiastic about your client’s chances of winning/defending the
case. Cases that are factually and morally superior still sometimes lose
because the system is not perfect.
The
analogy I used to use is “Think of a lawsuit as a hike across a vast desert
full of serpents and hidden pockets of quicksand. Looking across the desert
from its edge all looks smooth and clear, but it isn’t. As your attorney I act
as your seasoned guide, but that doesn’t mean that we both won’t meet
unpleasant surprises along the way.”
James
Luce
Los
Altos
Praise for State Bar’s consumer guides
I am a volunteer at the Woodland Senior Center and a
member of the Esparto Senior Center. The information this “Seniors & the
Law” pamphlet provides us is wonderful and very needed by seniors. One of the
best I have seen. I will distribute them to the seniors at both places.
I have ordered the maximum you allow to distribute.
You already had sent some to the Woodland Senior
Center but we ran out of the English version quickly. Thank you!
Carol Miller
Capay