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Letters to the Editor

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