Saturday, September 30, 2017

What is a Trial Lawyer's Best Secret Weapon?

By Walter Whitman Moore

Can you guess what a trial lawyer's best secret weapon is? Go ahead and take a guess.

If you said, "a background in public speaking," you made a very respectable guess. Debating in high school and college is excellent preparation for trying cases, but that's not really a secret, is it? The same goes for: getting a good education; observing other lawyers' trials to look for do's and don'ts; attending seminars on trial techniques; and staying current on developments in the law.

I'll give you a hint. In any given lawsuit, a trial lawyer must typically keep track of:
  • Dozens of claims and defenses (e.g., fraud, estoppel), each of which may have three or four different elements (e.g., representation, reliance, damages); 
  • Hundreds or thousands of pages of deposition testimony, portions of which will tend to prove or disprove the elements of those claims and defenses; 
  • Hundreds or thousands of pages of documents, which will likewise bear on those same elements; 
  • Scores if not hundreds of discovery requests and responses; 
  • Numerous deadlines and projects that must be completed by those deadlines; 
  • Hundreds of pages of cases and statutes that bear on the key issues in the case; and
  • The time the lawyer spends working on the case, along with the expenses incurred.
Before you can try a case, you must know what you need to prove, and how you're going to prove it. You must know which questions to ask which witnesses, which documents to have them authenticate, and how to show in closing argument that you have proved or disproved the key elements in issue.

Now do you know what a trial lawyer's best secret weapon is? Of course you do. It's the ability to design and use a database. Database software lets you link issues, documents, facts and witnesses to one another, so you can keep track of what you need to prove, and how you're going to prove it.

Database software, used properly, not only saves enormous amounts of time, but gives you a unique command over the facts and law in the case. Your database lets you find the documents, testimony and authority you need instantly, and lets you prepare easily an outline of your trial presentation so that you will efficiently and persuasively prove your client's case. 

I have been using a database called FileMaker Pro since the 1990s. Whether you use a PC or a Mac, it will run on your computer. (FileMaker Pro will sell you an individual license for $329.) I have used it to design a number of databases that I use to keep track of witnesses, documents, testimony, discovery requests and responses, facts, law, time, expenses and projects. 

If you're thinking about becoming a lawyer, I strongly recommend that you take classes on how to use database software -- along with just about every other kind of software, including word processing, spreadsheets and presentations. And if you're already a lawyer, you will not regret spending your valuable time learning how to make databases, because you will wind up saving far more time than you spend, and you will do a much better job of protecting your clients' rights efficiently.

I've tried using other companies' software that was "made for lawyers" (e.g., CaseMap and Amicus), but they seemed to consume more time than they saved. There are plenty of other similar packages that you can try. However, I am really glad that I took the time to learn how to make my own. If you learn to make your own databases, you give yourself the ability to make software that works best for you. Give it a try.

But don't tell anyone. After all, it's a secret weapon.

Walter Whitman Moore is a trial lawyer in Beverly Hills. His website is LicensedToSue.com

Sunday, July 23, 2017

Fight Back Against Frivolous Lawsuits

By Walter Whitman Moore

How can you fight back against a frivolous lawsuit?

In California, your lawyer can ask the plaintiff to admit, in writing, that each of the false facts alleged in the complaint is, in fact, false.

Sounds idiotic, huh? After all, you know that the plaintiff and his lawyer will, of course, refuse to grant the requests. Their case is built on those false allegations.

But here's the good part: if you hang in there and fight for your rights rather than paying them "shake-down" money to go away, then when you win at trial, you may -- repeat, "may" -- recover all or nearly all your attorney fees from the plaintiff. That's because California law lets the Court award you the attorney fees that you incurred to prove the false facts that the plaintiff insisted were true.

There's more: if the plaintiff has sued you under the Labor Code, you may also recover your fees if the Court finds that the lawsuit was frivolous.

The "bottom line" is that you don't have to surrender to a "shake-down" lawsuit. You can fight back.

Walter Whitman Moore is a trial lawyer in Beverly Hills. His website is LicensedToSue.com.

Wednesday, June 7, 2017

Radio Alert! Tune in KABC 790 Thursday 8:00 a.m. to 10:00 a.m.

RADIO ALERT:
Tune in KABC 790 Thursday 8:00 a.m. to 10:00 a.m. to hear my color commentary Comey's Congressional testimony.

Thursday, April 6, 2017

Litigation Strategy: Leave No Stone Unturned?

By Walter Whitman Moore

Some lawyers file every motion they can think of, and ask for every bit of discovery permitted by law, in every single case, regardless whether it makes any economic sense for the client. If you're a lawyer, don't be that lawyer. And if you're a client, don't hire that lawyer.

Often, the most cost-effective approach is just go to directly to trial. No motions. No elaborate discovery. No thousands upon thousands of pages of documents being indexed. Just show up for trial, present your case, and ask the jury or judge to do what the law and evidence require them to do.

Suppose, for example, that you represent a defendant who has a strong case that rests on the introduction of a few key documents and perhaps an hour or two of testimony. Don't run up your client's bill by filing demurrers, motions to strike and summary judgment motions, and by asking for thousands of documents and days of testimony that you do not need. It will take you less time -- much less time -- to try such a case and win it than to draft an elaborate motion to try to convince a busy judge to throw the case out of court without a trial.

Are there cases where it makes sense to move for summary judgment? Absolutely. If the trial would take four weeks, and your client is entitled to judgment as a matter of law based on some simple and indisputable fact, go for it. But do the math before adopting your strategy. Sometimes it's best to leave nearly all the stones unturned.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is LicensedToSue.com.

Wednesday, March 22, 2017

Litigation "Life Lesson" from Trump's Travel Ban

By Walter Whitman Moore

Trump would have won in the litigation over his travel ban if different judges had been assigned to his case. The Chief Justice of the United States Court of Appeals for the Ninth Circuit and four of his colleagues issued a dissenting opinion in which they argued that the Court of Appeals erred by refusing to let President Trump enforce his travel ban. 

On the Ides of March, the five justices filed a 26-page dissenting opinion, explaining why they believe the Court should have reconsidered "this case en banc for the purpose of vacating the panel's opinion." They summarized their position as follows:
The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).
You can read their entire opinion by clicking here.

The litigation "life lesson" for you is that there is always an irreducible element of risk in litigation. No matter how strong or weak you think your case is, the outcome may depend not on the facts, the law, or the lawyers, but on the judges and justices assigned to your case. That is one reason that parties sometimes opt to submit their disputes to arbitration, where both sides pick the decision-maker.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is LicensedToSue.com.


Wednesday, March 15, 2017

Lowering the Bar

By Walter Whitman Moore

Some people think it's just too darn hard to get a license to sue in California. Exhibit A is an article in the San Francisco Chronicle entitled, "California bar exam’s passing score should be lowered, critics say." These critics point out that just 43% of the people who took the bar exam in November passed. 

Now, if you were among the 57% who shelled out for three years of law school without passing the bar, you might think you were a victim of educational malpractice. After all, as we learned from The Paper Chase, law school is supposed to take students with skulls full of mush and teach them to think like lawyers:



Judging from the test results, more than half of California's law school students graduate with their mush intact, unable to think like lawyers. However, the law school deans who gladly accepted tens of thousands of dollars in tuition from each of the failed 57% wannabe lawyers for three years say the problem isn't their professors' failure to teach. Instead, the deans say, the test is just too difficult. Their solution is lower standards. According to the article, the deans of 20 California law schools wrote to the California Supreme Court, asking for the minimum passing grade to be lowered “unless or until we have strong justification for the benefits of California’s approach.”

Since when do we lower standards in this country? Do we really need dumber lawyers? And why stop with law? I bet plenty of people fail to pass their medical boards. Why not just say that 90% of each test group will pass? Ditto for pilots, engineers, architects, and rocket scientists. What could possibly go wrong? Everything. Everything could go wrong. Law is complicated. When your life, liberty, property, income and/or reputation are on the line, you want a lawyer smart enough to understand the fine distinctions on which your fate might depend.

The article points out that other states have lower standards for lawyers. So what? How does that justify lowering ours? California has higher standards than other states for air quality, too. We like our air clean and our lawyers smart -- so sue us.

There was a great line in Martha, Inc., a made-for-TV movie about Martha Stewart, starring Cybill Shepherd. Stewart is standing in the aisle of a K-Mart, examining the products on the shelves with disdain. She says something to the effect that K-Mart is going to have to increase the thread count, and a K-Mart executive responds by saying something about how expensive that would be. Stewart then tells the K-Mart executive, "You don't understand. I'm not here to lower myself to your standards. I'm here to raise you to mine."

The appropriate solution here isn't easier tests, but better education. Rather than urging the Supreme Court to adopt an easier test, the deans of California's law schools should focus their attention on producing graduates who can think like lawyers.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is LicensedToSue.com.