Instant Mentor: Ten Things I Wish I Knew As A Young Litigator

1. Instant Mentor: Ten Things I Wish I Knew As A Young Litigator ABA Young Lawyer’s Division Litigation Committee Mid-Year Conference, Winter 2006 The recommendations contained herein reflect the views of the individual authors only.

2. What I Wish I Knew About….Motion Practice by Magistrate Judge Sidney I. Schenkier

3. Motion Practice 10. Make it easy. Judges get lots of paper, and anything you can do to make it easier for the judge to absorb your presentation will be greatly appreciated. Making it easy requires that you prepare thoroughly. The more you know about the facts, the law, and the practical ramifications of the motion, the better able you will be able to communicate your argument to the judge simply and directly. And, go to the court’s website (which didn’t exist when I was a young litigator) to review the judge’s particular requirements for motion practice – and follow them!

4. Motion Practice 9. Shorter is Better. So, edit, edit, edit. Judges understand that some issues are complex, and require lengthier briefing. But judges also know the difference between productive and unproductive length.

5. Motion Practice 8. Don’t Attach to the Brief Documents You Haven’t Read. Judges get lots of paper, and tend to read everything. You will find it embarrassing to be asked how a particular reference in a document at Tab 5 of your motion affects the argument, if you don’t know what’s in Tab 5.

6. Motion Practice 7. Know Your Weaknesses Even Better Than Your Strengths. Just about every motion has certain weaknesses, and even if you prefer to avoid them, you should not assume that your opponent or the judge will indulge that preference. The more you have thought about your weaknesses and how to address them (and that includes how to address adverse authority), the more likely you will be able to overcome them.

7. Motion Practice 6. Meet and Confer Conferences Are Important. The rule requiring those conferences, Local Rule 37.2, is there for a reason. Discovery generally can and should be done without judicial intervention. Rule 37.2 conferences give the parties a chance to work out their own solutions instead of having a judge (who will never know as much about the case as you do) impose one. The best way to meet and confer is face to face (or, if that can’t be done, by phone); dueling letters rarely accomplish the goals of Rule 37.2 And, the time for the meet and confer is before there is motion practice – not in front of the judge as the motion is being argued.

8. Motion Practice 5. Name-Calling and Sarcasm Are Not Persuasive. All the cutting remarks that you put into your Rule 37.2 letters that find their way to the motion are a real turn-off. Judges didn’t particularly like fights in the sandbox as kids, and judges don’t much like seeing the adult equivalent in briefs and arguments in court.

9. Motion Practice 4. Judges Want Direct Answers To Their Questions. You are no longer in moot court land. Judges ask questions to get information that will help decide how to properly rule on the motion. Judges pick up pretty quickly when someone dodges the question. When you dodge, consider whether a direct answer to the question (even if not the best) is worse for you than having the judge assume the worst from your dodging.

10. Motion Practice 3. Courtroom Etiquette Counts. For example, interrupting your opponent’s argument doesn’t make you come across as tough or authoritative, but only as rude. The time to talk with your opponent is when you’re outside of court; when in court arguing a motion, talk to the judge and not to your opponent. Making faces to express your disagreement with your opponent while he or she is arguing is not effective, but childish – a poker face counts as much in the courtroom as at the card table. And, thank the court even if you don’t like the ruling; remember, you will likely be back again.

11. Motion Practice 2. It’s OK To Compromise. This does not mean that you should routinely give away the store. But, especially with respect to discovery motions, it is often the case that each side has some degree of merit in its position. Suggesting possible compromise solutions will not make you look weak, but will make you look reasonable. And in discovery motions, reasonableness generally gives you the best chance of winning.

12. Motion Practice 1. It’s OK To Be Nervous. Not all of us were born to the stage (whether in theater or the courtroom). It’s natural to be nervous, especially early on. As long as nervousness is not so extreme as to become paralyzing, it can even help make sure you are alert, on your toes, and ready to go. And, the good news is that over time, as you get into court more often, the nervousness fades.

13. Ten Things I Wish I Knew About…Written Discovery by Gabriel A. Fuentes, U.S. Attorney’s Office, Chicago

14. Written Discovery 10. What you say in an answer can and will be used against the client in ways you may not contemplate at the time of drafting. 9. Usually, you will only waste time if you propound interrogatories and requests to admit designed to get your opponent to admit the ultimate questions of fact in the case. But go for it if you think your adversary has little or no room to deny the obvious.

15. Written Discovery 8. Less often is more. Use interrogatories to discover potential witnesses for deposition, the location and nature of useful documents, plaintiff’s damages calculation, and the availability of insurance. 7. Requests to admit are most effective when aimed at factual issues that ought not to be disputed. But don’t overdo them.

16. Written Discovery 6. Come up with an overall plan for coordinating written discovery with depositions and follow-up written discovery and document requests. 5. Are you using written discovery to learn about the strengths and weaknesses of your opponents case, or to limit your opponent’s ability to change stories at trial? Either is OK, but if your answer is neither, you may be wasting your client’s money.

17. Written Discovery 4. Juries don’t really know what interrogatories and requests to admit are. 3. Judges don’t hate disputes over written discovery as much as you might think. The party with the most reasonable and consistent approach to discovery requests and responses will go to trial with the most judicial capital.

18. Written Discovery 2. A reasonable and consistent approach to discovery may be found on your judge’s website and in lesser-known sources such as the local rules of the U.S. District Court for the Southern District of New York. 1. Flailing away during written discovery can and will be costly to your client, and perhaps to you.

19. Ten Things I Wish I Knew As A Young Lawyer About…. Pretrial Preparation By Robert L. Byman, Jenner & Block

20. I Am An Old Lawyer Now And I Still Don’t Know 10 Things About Pre-Trial Preparation

21. There is only one rule in a knife fight: There are no rules There is only one rule for pre-trial preparation: Be prepared

22. If You’re Looking For Wisdom, Here’s All I Have: Remember That In the Word “Pre-Trial” The Important Part Is Not “Pre”

23. Nevertheless, 10 Thoughts On Effective Trial Preparation:

24. We Take Too Much Discovery • We Take Too Little Discovery • We Don’t Think Enough About Opening • We Think Too Much About Opening • We Don’t Properly Prepare Witnesses • We Over-prepare Witnesses • We Don’t Rely Enough On Experts • We Rely Too Much On Experts • We Don’t Prepare Enough • We Prepare Too Much

25. Instant Mentor: Ten Things I Wish I Knew As A Young Litigator ABA Young Lawyer’s Division Litigation Committee Mid-Year Conference, Winter 2006 The recommendations contained herein reflect the views of the individual authors only.