During this time of year, I don't know about you, but I enjoy a white, snowy Christmas in my part of the country. I enjoy getting together with family, buying presents for my kids, seeing a child's face on Christmas morning when they see the presents under the tree and the overall optimistic atmosphere of the season. Yes, I said "optimistic."

Watch the myriad of "Christmas" or "Holiday" programs that come across your television this season. The stories are varied, classic and just plain fun to watch. (I can't help but watch a Charlie Brown Christmas over and over again). What is common to each story at this time of year is the ending. Each ends with everyone "happy," the situation resolved, or just plain a tear jerk er that leaves you satisfied there is some good in all of us.

Now, what does all of this have to do with Litigation? Well, think about the stories we try to tell to the juries. What story do we try to relate? What is our goal? First, we try to paint a picture or tell the story that shows how our client is really the party who should win this case. Then we try to persuade that the evidence supports our client. Then we finish by telling the story based on the "facts" of the case. This model is for both the prosecution and the defense of a case.

So, at this time of the year, I ask the real question every juror is asking of you (the attorney or client) - what is the true story? I am not going to go into a recitation of Linus from the Peanuts (even though I do agree with the story). But, I think if you look at all the "holiday" specials, you see one theme that yours and my jurors like - good wins, people are overall good, that we all want the best for our lives not just this time of the year, but all year.

So now, our goal is to present the facts of our case to jurors so they will decide the "good" that is to come by their verdict. Not an easy task no matter what time of the year it is. The real question the juror is facing from all the perspectives of the witnesses is "what is the real story?"

Enjoy your Holidays! Have a Merry Christmas and Happy New Year!

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Well, they are not Santa, but the Vermont Supreme Court will decide this question and hopefully give us a great answer we can bring to our courts throughout the country. The Associated press ran this article this morning. After several weeks of being busy before the holiday and now looking for something to write about, this article caught my eye.

I know I may not get the votes from all you pet enthusiasts, but it is just a dog. I know, they are companions, they are family members (cough, cough), but now we are going to sue for emotional distress and loss of companionship?

Less you think I hate all animals, I don't. I am a dog owner. Actually two of them. One of them we rescued from a no kill shelter. But, if my dog wandered off onto another persons property and was killed - I don't know if I could seek additional payment based on how I felt about my dog. The article does bring up a good argument of where do we draw the line? Horses? Cats?

I understand being justly compensated. But, I have a hard time with the premise of this case. Call me cold hearted or at this time of the year a Scrooge or Grinch, but really - it's a dog!

Well we will have to wait and see what the Vermont Supreme Court thinks!

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Law on Display: The Digital Transformation of Persuasion and Judgment - This book title just came across my feeds. It sounds interesting as I see more and more technology entering the courtrooms in our area. I will let  you know once I get a copy and read through it.

Check out the Law.com to get their take on it.

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I knew when I used the word litigation in the title of this blog people may have had a hard time comprehending what does it exactly mean? Simply a lawsuit or having a case heard in court. Simply to have your day in court to have the wrong against you corrected or to be able to present your side of the issues. I found two cases in the news today relating to the rights of a university project that is seeking the vacating of a conviction over 30 years ago and a local lawsuit now filed that seeks damages for the handling of a police investigation. I give no opinion, I think, on either case, I only highlight them for the availability of the parties to use a system to continue to protect their rights (30 years later) and to compensate a wrong they feel was committed.

The Chicago Tribune is reporting that Northwestern University Medill Innocence Project is fighting a subpoena for class records relating to the students who compiled the report of the wrongful conviction of Anthony McKinney. See, Northwestern University in standoff with Cook County Prosecutor.The subpoena not only seeks notes of interviews, but also the students grade information and class syllabus. The case has not gone to argument yet, so it will be interesting to watch the court's ruling. This case has implications beyond the clearing of an individuals criminal record and conviction, but also, what is discoverable when an independent "journalism" entity takes on an investigation?

The Rockford Register Star is reporting that another lawsuit is on file against the City of Rockford for a police involved shooting - Church Leaders sue City over Shooting. This lawsuit was filed by the church for the officers handling of the witnesses and children at the scene. It will be interesting to see how this lawsuit plays out in court for the emotional argument aspect of witnesses to a police involved incident.

I don't think there are any easy answers to these cases. We don't like to see innocent people get convicted and we don't like to hear of witnesses being mistreated. But what is the answer? We have a judicial system to address some of these issues. But, are some of these issues bigger than our system or is there another venue where they can be addressed?

Litigation costs, but it also protects. Litigation, working within the guidelines of the system, gives everyone a voice, but "using" the system inappropriately wrongs the person and the system. I don't know the answer, I can only attempt to work with the system that is in my opinion the best in the world at what it does - gives those who feel they have been wronged a chance to be heard and compensated for the wrong.

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It never ceases to amaze me each day some new story comes out about the judicial system, with another slap at it.

In this case, it was the "taking" of baseball from a 12-year-old. She just happened to catch the 200th home run of one of the Phillies batters. See the article at Fanhouse. 

I wasn't so upset with the article or how the parties handled themselves. It was a little disconcerting the baseball throws away so many baseball's during a game, but when an important ball is needed they will go out of their way to obtain it for them and not think twice about the fan. Well, enough said about that.

My beef with the article was the last line.

The lesson: when in doubt, sue somebody.

I guess I am a little miffed that just suing someone. It is the old mindset that attorney's are just out to get whatever they can and will sue anyone for anything with no legal basis. Our system may not be perfect, I understand the some attorneys may not be as ethical as they should be, but I would hope that with checks and balances our system has we don't just sue when in doubt. That in fact we sue when our client has a valid legal claim and reason to do so.

In this case, I think this young lady did have a reason to be justly compensated. I also think the way she is portrayed as being treated by a "bigger" organization, should raise some red flags. Life is not always fair, but the law can remedy some of the unfairness. Everyone needs to be treated fairly and deserves a system that tries its best to do just that.

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I had an attorney who had been practicing law for 30 years tell me once, " You should go into court on a motion expecting to lose. That way if you do lose, you are not surprised or upset and if you win, you do not gloat too much."

The frustrations of litigation though can be taxing. Trial practice is the most nerve racking. You prepare many hours just before trial on a case that you have been working on sometimes for years. Then within 3 days or two weeks it is over with. If the verdict is in your favor, you may be very pleased, but if not -- well a decision to appeal and if you can appeal may be coming.

Sometimes, it is the decisions though made during trial that can be the most frustrating. You have little, if any, time to react to the judge's orders. Depending on the court rules could have a sizable impact on your case and how you are going to proceed. But, you must proceed within the parameters set out by the court.

A recent Illinois 4th District Appellate case, Thomas v. Koe, highlights these factors. I feel for the plaintiff's attorney who had some rather poor decisions made by the trial court. However, the attorney's actions also were brought into question, the trial court ultimately holding him in criminal contempt of court.

This case highlights the tension that is raised in trial work between a balance of proper evidence, the judges decisions and then how do you put on your full case to the jury after those decisions. We all know appeals are available after the trial, but it would be nice to have the issues before the jury so an appeal would not be necessary.

So goes the life of a trial attorney.

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The world of Litigation is full of unknowns. You prepare for the hearing or trial and still there are many "new" things that come up the day of or in court that you do not expect. But, these really are the expectations of being involved in litigation. In issues involving the law or facts, these "unexpected" things can be dealt with usually without much trouble.

The truly unexpected is the client - they want some type of guarantee or even a good guess of what the judge or jury will decide. Sometimes these expectations are valid based on the facts of your case. Other times, there is just no way of knowing for sure what the outcome is even likely to be.

The clients though may have their position laid out for you. They know how you should present their case. They know what evidence you should put in front of the court and they know exactly what you should say. What they don't realize is that a majority of what they want in front of the court is not allowed by rules of evidence, what they want said is considered hearsay and they have no witnesses to prove the statement or their evidence is irrelevant or not allowed at all.

The tough part for any litigator is client control. Not that all clients are ridiculous in what they ask for, but the attorney needs to make sure from the beginning of their relationship with the client to make sure the client understands what some of the rules are in their case, what evidence is necessary to prove their case and what a realistic outcome may or may not be.

I have found though even after a good initial meeting and conversation, reminders of expectations are still necessary .

The quote of the day from Trusted Advisor is right on for the Attorney - Client relationship.

Without trust, you're left to compete only on features and price, features and price — along with everyone else.

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The "Dog Days of Summer" are upon us (well at least I'm feeling it). I am reminded of this as I try to catch up on the work I missed while I was on vacation. It never fails, just when I think I have caught up with all my work, I end up further behind. This is the time of year when you have taken a vacation (hopefully), the school year is about to begin and you still feel the need (or want) to relax, just for a little while longer.

In litigation work, it is not always "your" work you are behind on. Your clients come to you with a problem (e.g.. pending lawsuit, their business is owed money for work completed, etc.) and that is when you find out that all is not quite as it seems. The client has not kept certain paperwork they should have. The required paperwork was never started, let alone properly completed. I relate this to the "dog days of summer." Our clients have relaxed hoping to catch up after their "vacation."

So, what is a litigator to do? I would suggest some of the following:

1. Making sure first we are up-to-date on our projects (at least as much as we can be).

2. Assist your clients with as much as you can with checklists of items to take care of from a legal point of view. Since I represent some small businesses, this is especially important and can be easily done. These checklists may include: what paperwork to hold on to, what reports, etc. need to be filed with the proper government agencies. Their a variety of checklists available depending on your field of expertise.

3. Create little reminders or gentle "nudges" to send a note to a client to remind them of what is important to get in order for them personally or their business, especially as the end of the year rolls around.

4. Making sure your clients know a paper trail, especially with any agreements they may enter into is very important when it comes to prosecuting or defending a claim. It never fails, your client wants to sue or is served with a lawsuit and they don't have the necessary paperwork to prove or defend their case. This of course is the paperwork that in the "normal" course of business would have been done.

Well, the dog days are upon me. It took me a while (a lot longer than it should have) to just sit down and write this entry. I want another vacation! But the prospect of helping someone out of their predicament brings me back to the office for another day. Now, how to get organized. (Helpful book on this Getting Things Done by David Allen).

So, until next time - relax, enjoy the moment - Now BACK TO WORK!!

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We strive to say the right thing. We, especially as litigators, love to correct people with their use of wrong phrases, or when they “slip” up on the witness stand to be able to point out the error of their ways to the jury.

We sat at our partner’s breakfast meeting this morning and discussed the lack of using “written” words. Not on the computer, but on paper and writing letters and journals. You know the kind that we see in history books on past presidents. The journals of our past relatives can add so much of their character, of who they were and what life was like at the time. We can see their corrections and deletions that we now miss with the use of the computer.

Writing in a sense has become a lost art, or appears to be losing its place in our society. But good writing is still necessary in the litigation field and in the other areas of law as well. I write this, okay type this column, after reading an article regarding Judge Sotomayer who is now the nominee to the U.S. Supreme Court.

Tony Mauro of the National Law Journal article "Sotomayer, Word by Word" highlights some of the debate that will not encompass Judge Sotomayor’s nomination – her writings. Former case decisions that are now in written form will be dissected, debated and questioned. According to quotes in the article, Judge Sotomayer struggled as a writer, even in the legal field, her writing style is at times tough to read and at times boring. I think a comment of why she adds so much detail to her opinions is interesting:

Sotomayor's six years as a federal trial judge are crucial in understanding her approach to opinion writing, said Alan Schoenfeld, who clerked for her in 2006 and 2007. She sees giving specific guidance to district court judges and litigators as a major part of her job, he said, and that requires going into detail.

I am glad she writes her opinions to educate the courts and the attorneys. It is the reason we all research former cases to find one that assists our cause and will persuade the trial court to agree with our position on an issue or to more fully understand the issue presented.

I understand the dilemma this article raises. The concern of how detailed Judge Sotomayer is in her decisions, will they make sense in the Supreme Court or will they be too hard to understand? We don’t know. Will she be confirmed or denied based on her written opinions. We all try to write our best. There are some who have a skill or knack to write much better than others. I think I fall into the category with Judge Sotomayer that my writing takes many drafts to complete.

Since most of my writing is done by typing on a computer gone are the drafts and revision sheets of paper. The lost art of letter writing is now on blogs or social networks online. For some of us, writing letters and keeping journals is still a daily necessity, but for how long? Will we pass on a legacy of what the law has meant to us or for us that others can review in the future? It is interesting how we push technology and the internet social networks, yet when it comes down to choosing a U.S. Supreme Court judge we look at her written words.

So, now go out there and write - you never know who may be reading your words.

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A article posted today in the Peoria Journal Star confirms what I have posted earlier about the roles of paralegals in a law practice. The article "Colleges See Influx for Paralegal Job Track" highlights not only increase in enrollment at the local college, but also the benefits of a paralegal in a law practice.

Tom Higgins, a professor of criminal justice and paralegal studies at ICC, said a greater demand for paralegals preceded the recession, and that trend has continued largely with no effect in that job market despite the recession.

Several of my students at the Rockford Career College reiterate this mindset. The economy is what drove them to get a degree that they could use very soon in order to find full-time employment.

"A paralegal makes you money, whereas a legal secretary is overhead," Higgins said, explaining employers are looking for more efficiency.

Paralegals assist lawyers by researching legal precedent, investigating facts or preparing legal documents. They also conduct research to support a legal proceeding, to formulate a defense or to initiate legal action.

The benefits were highlighted to me last night as I had two of our local circuit judges speak to our class. Both judges allow paralegals to assist attroneys during a trial. As long as they are informed ahead of time this will be occurring, they have no problem with this practice. In fact, they pointed out that the paralegal is almost a necessity depending on the complexity of the case and amount of exhibits that are presented during trial.

Also, the paralegal can do some of the behind the scenes work to prepare the case for trial. While our Supreme Court Rules do not allow for a paralegal to appear in court for status on the case or any motions, their assistance in other aspects of the case can be very beneficial.

It is good to hear that some people are seeking a legal education that will benefit our profession even when the economy and a recession are being batted about on all the headlines. It should also give litigation attorneys pause as to how the benefits of this influx of graduates can assist our practice in the future.

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How will I come across to the jury? This is usually the last question a lawyer is thinking as he or she is preparing for trial. The trial attorney is to busy working on his examinations of witnesses, preparing his evidence exhibits, preparing his witnesses for testifying, etc. How the jury will react to him is the last thing he worries about. He wants the jury to believe his evidence and make a decision in his favor.

Anne Reed brings up a good point in her blog posting of June 2nd "Flavor Who?" when she observed how two lawyers handled an unexpected answer from a potential juror. How they reacted to the answer could give the jury a sense of who the attorneys as people, not just their roles in the court case.

Trial work is sometimes, okay, a lot the time, thinking and responding "on your feet." So how you respond to what occurs moment to moment in a trial will already be determined by your personal habits and personality. I also think it also shows your preparation. If you are comfortable with your case because you have prepared, you will come across as prepared, relaxed and able to work the case, while still showing proper emotion when necessary. I have watched unprepared attorneys, and myself when unprepared, come across unnatural and not be able to interact with the jury in a quality manner.

Anne does bring up a quick thinking attorney tool and that is to quick check the Internet for the answer. As more courtroom's become Internet capable, this may be very helpful.

In front of a jury, just be yourself. But, be prepared and ready for your case and for your client. Also, when you talk with jurors at the end of your case, don't just ask how they arrived at their decision, also ask how your presentation helped or hurt your case.

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If you enjoy reading a good book and you don’t mind a good legal thriller (even if you’re a lawyer) then John Grisham’s book, The Appeal, is an excellent choice. As a litigation attorney, I enjoy how Grisham does an excellent job in pitting the insurance / business side against the trial lawyer’s bar in this book. While he admits to using some creative license for his story, the characterizations and plot carry the day.

Grisham has a knack for building several characters at the same time and adds a lot of depth to the story line of his books. (There I go again sounding like my English teacher).

The real crux of the book is the election of Mississippi Supreme Court Justices. This as it turns out is Grisham’s main motive in writing the book. (See author’s notes at the end). He weaves a conspiracy theory that the election can be bought and the decisions of the Justices can be handled to give one side (big business) the advantage over the other (trial attorneys). This as it turns out is why he (Grisham) would like the issue of electing our judges revisited.

If you have never read Grisham before – start now. His use of fiction to bring out the “friction” in our legal system is tremendous.

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One of our assistants at our office just recently was called for jury duty. Knowing she worked for a law firm, she thought she would never be selected for a jury. Well, she was - for a criminal trial. After two days, the case was dismissed on Atechnicality@ that the state failed to prove their case. But, that is not the reason for this post.

She was very disappointed in the whole process and very bored. She felt that the process was slow. The listening to the facts of the case was just drug out way too long. As I listened to this, I thought, what could we do as litigation lawyers to make the experience of serving on a jury more positive, and possibly less boring.

In this day and age of quick news, immediate gratification and the ever pervasive >entertainment=, it is no wonder our jurors feel like the courtroom drama is just not happening fast enough. The court shows have the investigation, trial and conviction all over within one hour. Plus, the storyline and sequence of dialogue is much more to point and dramatic.

In order to overcome some of this we as litigators must educate our jury during the selection process of what they will see during the trial. The court, being the judge, needs to highlight to the jury their civic duty, but also what is going on in the court room even when they (the jury) are not present. This will still not overcome the mundaneness of the jury trial process. The >entertainment= point of the process must also come into play. Use of technology is now playing an important role for a jury. Gone are the days of just putting on a case without some type of visual evidence or props. Items or photos blown up and put on foam board, computer visual programs, such as Microsoft's PowerPoint or Apple's Keynote, are now becoming a vital part to the jury trial process. More courtrooms are being equipped for the use of such items. Now it is up to us, as litigators, to use the technology as best we can depending on the case.

We still cannot go all the way to just entertaining the jury. Our visuals must still abide within the legal guidelines for the case. The jury must also realize just how important this process is, even if it appears to be a long drawn out, boring process. I too sometimes find the trial boring and wish it would move along a lot quicker. But, it is still one of the best systems in the world for what it accomplishes.

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We are finally up and running with our blawg. I wanted to get his announcement out today, so as not to “fool” anyone with an announcement tomorrow, April Fool’s Day.

Litigation defined as “a lawsuit or legal action, including all proceedings therein.” Black’s Law Dictionary.

By this definition, I hope to bring to light the issues and cases involved in our expansive legal system. This will include cases from various areas of law, but all having to do with “going to court.”

I hope to accomplish several things with this blawg:
Educate attorneys and clients in several areas of law that may affect them or their businesses;
Provide up to date information about cases that have or are proceeding through the court system, with emphasis on litigation or trial issues;
Provide commentary regarding critical issues regarding litigation; and
Have fun discovering the various areas of law and the relationship with one another in the court/litigation process.

Who knows today where this might lead.

I look forward to your comments and suggestions. As an adjunct professor at local colleges in my area, I am always looking for more opportunities to learn and helping others to learn. I hope to do the same through my blawg as you comment and discuss the issues I bring to this forum.

I hope for a long and productive practice as the Rockford Litigation Lawyer.

Enjoy!

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The Oscars are over. The Summer feels like it is never going to get here. (At least for the Upper Midwest) We long for the summer entertainment the new wave of this years movies will bring. Who will be the next big star? What will be the next big movie? We all long for entertainment.

The experts tell me that when I teach to undergraduate college students, I should expect that there attention span will be about 20 minutes at most, even if they are older students (say in their 30's or 40's - who are that old). In light of that, I am instructed to plan my teaching around activities that “engage” the students and vary the my teaching methods so that I do not lose their attention. In other words, I need to entertain as well as teach.

Now, coming from the law school experience of three hour lectures with no Powerpoint presentations or movie clips to “entertain”, this task of education “entertainment” at times can be and is daunting. I know some of you are thinking, so what, we are not here to entertain, we are here to educate. I just recently watched the now classic movie The Dead Poets Society. I found some inspiration moving from traditional teaching to the free thinking the teacher Mr. Keating, the character Robin Williams portrays, shows his students. Engaging the students to think for themselves. Isn’t this what law school taught me, even with its traditions?

How does all of this apply to litigation? The very people we place on our juries are looking for “entertainment.” Whether it be the ‘older’ generation who expect to see Perry Mason or the younger generation who expect ‘Law and Order.’ A jury expects something more than just a lecture. Powerpoint presentations are in the increase as more courtrooms are updated to handle the technology. But how far can we, as attorneys, push the envelope? I recently came across this article that spoke of case in Philedelphia, PA where a Motion in Limine was filed to keep the defendant’s attorney from performing a magic trick in front of the jury. The defense attorney is an accomplished magician and has used magic in front of other juries. The motion was never heard due to the case settling, but it does bring up some interesting topics for discussion. I guess the question for the magic trick would be, does it aid the jury to understand the issue the lawyer is trying to convey? Or, is it just a distraction for entertainments sake to get the jury to ‘like’ your side?

This generation that will be filling our juries in the years to come, will expect more than just a lecture with maybe the occasional use of an overhead or enlarged photos attached to foam board. The question to ask as a case is prepared: What will enhance our presentation to prove our case, enlighten the jury and not just entertain?

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