Talk is cheap…until lawyers get involved.

“Lawyers: are persons who write a 10,000 word document and call it a brief.” – Franz Kafka

Mouthpiece: n. old-fashion slang for one’s lawyer. Burton’s Legal Thesaurus, 4E. (2007). Retrieved August 8, 2018, from https://legal-dictionary.thefreedictionary.com/mouthpiece

There are thousands of sated comedians in the world who make a living off the caricature of loquacious litigators. Indeed, it is probably a fair statement that attorneys like to talk. Attend any bar event anywhere in the country and, more likely than not, you will find a group attorneys exchanging war stories. Lawyers, especially trial attorneys, relish opportunities to reminisce about trials won, how incomprehensible it is that they lost a “slam dunk” motion, or the occasional client they never want to see again.

Most of the time, idle attorney chatter over rubber chicken bar association dinners is entirely benign. However, public statements made by an attorney during a trial or the pendency of case that may go to trial is consequential all of the time. This is because, as Chief Justice Rehnquist observed, “a lawyer’s extrajudicial statements pose a threat to the fairness of a trial due to an attorney’s special access to information.” Gentile v. State Bar of Nevada, 501 U.S. 1031, 1071 (1991). In theory, an attorney’s comments on the scope of evidence or a case’s merits could predispose a jury pool and, thus, unintentionally (or deliberately) prejudice a judicial outcome.

Continue Reading Trial Publicity: Public Statements Made by an Attorney during Court Proceedings have Limits

Have you ever taken a deposition where nearly every single one of your questions is met with a barrage of seemingly meritless objections?  How about one where your opponent decides to take a more laissez faire approach and repeatedly instructs their witness not to answer?

 

If you answered yes, rest assured you are not alone.  Personally, there is nothing that interrupts the “flow” of my deposition more than when I am on the receiving end of these scenarios.  The former scenario is at least somewhat manageable to the extent that it may result in having to reword or repeat a few questions.  The latter scenario, however, is much more disruptive as it effectively stops the deposition in its tracts.

 

So what should you do when opposing counsel instructs their witness not to answer?

 

First, you should ask yourself whether your question is in proper form.  You generally do not want to ask the deponent “contention” questions, i.e., those seeking all facts, witnesses, and document that support a legal contention.  Such questions are proper in interrogatories, but not in depositions.

 

In Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, the deponent was instructed not to answer various “contention” questions. In response, the deposing party brought a motion to compel, which the court denied.  The court held that such questions were unfair in the context of a deposition because “they call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot.” (Id. at 1262.) It further noted that such questions should be posed in the form of interrogatories so that the party, with the aid of its counsel, can “apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions.” (Id.)

 

In light of the above, if an opponent instructs their client not to answer, look at your question first and see if it passes muster under Rifkind.  If your question is something along the lines of “Why do you believe you are entitled to damages” or “tell me everything that happened that day,” then you might want to rephrase the question.

 

Assuming your question is proper, you should next evaluate whether opposing counsel asserted a valid objection.  Under California law, you can only instruct your witness not to answer when the information sought is privileged (e.g., “attorney-client” (Evid. Code § 950-962),”work-product” (CCP §§2018.010-2018.080)).

 

In Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, the defense attorney instructed his witness not to answer on the grounds that the information sought was not relevant.  The plaintiff brought a motion to compel.  The court granted the motion, and ordered defense counsel as follows: “you are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged.  The proper procedure is to adjourn the deposition and move for protective order.  You don’t assume the role of judge and instruct a witness not to answer a question at a deposition.  That is a big no-no.”  (Id. at 1011.)

 

In other words, an attorney cannot instruct their witness not to answer in the absence of privilege.  When facing a privilege objection, you obviously should not just take the attorney at their word and ask exactly why the information is privileged.  If it is pretty evident that the information is protected, then you should move on.  If you have your doubts, you could potentially have sufficient grounds for bringing a motion to compel.

 

Lastly, assuming the law is on your side, you will need to meet and confer with opposing counsel, preferably on the record, to see if you can resolve the matter informally.  During this process, point out how your question is valid under Rifkind and how their instruction not to answer in the absence of privilege violates Stewart.  If this fails, then ask the court reporter to mark the transcript and inform opposing counsel that you intend to bring a motion to compel with sanctions.  Sometimes, the threat of sanctions alone will force your opponent to concede.  If opposing counsel “sticks to their guns” then you should have sufficient legal grounds, and a clear a record in support of a motion to compel.  Either way, you are likely to get the answer to your question.

 

In summation, when dealing with an attorney who instructs their witness not to answer where no privilege exists, you should follow these three easy steps:

 

  1. Determine whether your question is proper in under Rifkind. If you asked the witness to provide you with a comprehensive list, or to “state all facts that support their contention,” then you should probably rephrase your question in a more concise manner.
  2. Assuming your question is appropriate, you should meet and confer on the record and tell opposing counsel that they cannot instruct their witness not to answer where no privilege exists pursuant to Stewart.
  3. If your attempts at informal resolution fail, then ask the court reporter to mark the transcript, and inform opposing counsel that you intend to bring a motion to compel with sanctions.

 

 

As previously reported, following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post is the second in a series designed to inform practitioners of several important changes to the Massachusetts rules.

 

The Duty to Remain Current on Latest Technologies

Gavel_Computer_2

Before an attorney can accept a matter, he or she has to comply with the competency standards found in Mass. R. Prof. C. 1.1.  According to said Rule, competent representation requires “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

 

In response to the rapidly changing technologies impacting the practice of law, the SJC adopted Comment 8 to Rule 1.1, which states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . (emphasis supplied).

With the rise of e-discovery, this Comment is particularly appropriate.  The State Bar of California Standing Ethics Committee on Professional Responsibility and Conduct in its Formal Opinion No. 2015-193, noted that “[I]n today’s technological world almost every litigation matter potentially involves [e-discovery],” and failing to have a “basic understanding of, and facility with, issues relating to e-discovery” can eliminate an attorney’s competency for a case.

 

We expect Massachusetts to follow the guidance provided by California’s Committee, and interpret the new Comment to allow an attorney who is not competent in this regard to nonetheless perform legal services competently by: 1) associating with or consulting technical consultants or competent counsel; or 2) acquiring sufficient learning and skill before performance is required.  Lawyers must decline the matter when they cannot meet these two provisos, and when they do not, Comment 8 gives the Board of Bar Overseers an additional tool to sanction lawyers who mishandle e-discovery by producing confidential or privileged information, or by failing to locate and produce electronically-stored discoverable data.

 

Comment 8 should not, however, be viewed solely in the e-discovery prism.  The headlines scream about the latest hacking attacks and disclosures of personal information.  Failing to maintain proper firewalls and other security features, notwithstanding a lack of bad faith conduct, may also viewed as a disciplinary rule violation.  Given that the use of computers and e-mail are unavoidable, lawyers should follow the same guidance applied to e-discovery.  That is, engage technical consultants or acquire sufficient learning and skill.  It may cost a few dollars, but it’s worth it, particularly in light of the potential the risks associated with Comment 8 to Mass. R. Prof. C. Rule 1.1.

 

For more information on the revised rules visit:

 

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf

Following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post will be the first in a series designed to inform practitioners of several important changes to the Massachusetts rules.

 

Communicating with Jurors

courtroom-12jury-002b-564x338Last summer then Governor Patrick signed into Massachusetts law House Bill 4123 which made two significant changes to Massachusetts Superior Court procedure involving trials.  The first allowed Plaintiffs’ counsel to request a specific dollar amount as damages; the second allowed for questioning of prospective jurors (voir dire).  This summer, the SJC made a significant change to the Massachusetts Rules relating to communications with jurors after they render their verdicts by amending Mass. R. Prof. C. 3.5 to largely conform to ABA Model Rule 3.5.

The former Mass. R. Prof. C. 3.5, articulated in Commonwealth v. Fidler, 377 Mass. 192 (1979) and reaffirmed in Commonwealth v. Solis, 407 Mass. 398 (1990), prohibited lawyer-initiated, post-verdict juror contact unless authorized by court order for good cause shown.  Although the Standing Committee noted that “good cause” was a relatively low threshold, it remained concerned that a complete prohibition of non-judicially approved lawyer-initiated communications with jurors after a verdict may violate the First Amendment and prevent lawyers from receiving useful feedback.

As such, the SJC followed the Standing Committee’s recommendation and revised Mass. R. Prof. C. Rule 3.5 to largely follow the corresponding Model Rule.  Under the new Rule 3.5, attorneys may communicate with jurors post-verdict unless: (i) the communication is prohibited by law or court order; (ii) the juror has made known to the lawyer, directly or indirectly, a desire not to communicate with the lawyer; or (iii) the communication involves misrepresentation, coercion, duress or harassment.

Clearly, the Standing Committee’s desire for clarity of the rules and concerns over potential First Amendment issues were strong, and unlike several other revision recommendations, unanimously recommended this significant alteration to the rules.  In effectively abrogating Solis and Fidler, the SJC agreed, and appeared to have little concern regarding the impact the new rules may have on jurors’ willingness to serve or the potential for improper challenges to their verdict.

 

For more information on the revised rules visit:

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf

 

 

From television to transportation services, it seems that everywhere we look, people are seeking increased diversity. We want to see every race, gender, ethnicity, sexual orientation, religion, and socioeconomic background represented in every industry. It has been proven that diversity can be a driver of economic growth, but what about the legal profession? Do clients benefit from diversity within their law firms?

While it may appear biased coming from a female minority, I believe all signs point to yes. Law firms with diverse workforces have unique advantages difficult to attain through any other means. The following lists just some of those advantages:

Stronger Firm

  • Let’s start off with the obvious: law firms benefit from diversity in the same way any other business does. A diverse work environment is more likely to result in greater acceptance of its employees, which results in a happier work environment, which leads to lower turnover. These are all positives for clients when it comes to the bottom line because decreasing ‘the churn’ promotes efficiency; fewer attorneys and staff will work on a client’s matters over a longer period of time. Moreover, happy employees are proven to be more productive.

Diversity Produces Better Quality Work

  • I was raised in a Mexican-American household. We spoke Spanglish at home and ate Mexican food four out of five nights. As a child, I believed this to be the ‘normal’ American life. However, through my friendships with people that did not share my culture, I came to realize there were many other languages being spoken and delicious meals being enjoyed by families around the country. My perception of what an American family looks like expanded. In a way, the career of an attorney is not much different. Attorneys from different backgrounds each provide a unique perspective and approach to the law. When an attorney has the opportunity to work with a diverse group, they are able to expand their perspective on the key issues of a case and are thus in a better position to determine the best approach. The attorneys benefit, as do the clients.

Larger NetworkDiversity in Legal Services

  • Clients look to their attorneys for more than just legal advice, often times seeking referrals in other fields or jurisdictions. It is easy to see why law firms with attorneys practicing in various states and practice areas from various backgrounds can be beneficial to clients given the large network of connections the firm creates. Even within the same city, law firms with employees from assorted backgrounds are more likely to have a larger network, often through involvement in organizations or associations.

Greater Capability

  • Let’s not overlook language. A firm with a multilingual workforce has the capability to assist clients in unique circumstances. It is not uncommon for attorneys to meet with witnesses who speak other languages. Legal documents often need to be translated or drafted in another language. Moreover, in the event a client has international business, working with attorneys with citizenship in other countries can also be useful. Having these resources available at a moment’s notice puts the client in a better position to be prepared for whatever challenges may come up.

Diverse Firms are More Relatable

  • Legal representation usually does not start and end in the office. Zealous advocacy often requires communicating directly with company employees and/or the general public. Consider instances in which attorneys need to locate witnesses to speak favorably on a client’s behalf for a deposition or trial. How about when the attorney is speaking on a client’s behalf at trial before a jury? A diverse law firm is a better reflection of the general population, which in turn helps make the firm more relatable to the public as an agent of the client. Working with relatable attorneys and staff could be the difference between winning and losing a case.

Diversity is certainly not the only way to gain a competitive advantage, but it’s hard to discount that it can have profound and positive effects on both clients and lawyers. Whether a client is an individual, a small business, or a Fortune 500 company, diversity should be a key factor when considering what kind of law firm to partner with. With the global sharing economy increasingly driven by technology, diversity is more likely to provide the necessary tools a client should want and need at its fingertips.