Actually Arguing

It’s common to have phone calls or meetings with adversaries where each side states their view of the case and responds to opponent’s claims. The purpose of these calls is often to dispose of a case early without substantial litigation, or to settle a case after each side has done some research. It may also be to debate the wording of stipulations or settlement agreements. But often lawyers understand that they will never persuade their opponent that they are wrong. At best, a lawyer can convince her adversary that her position has merits and that further litigation on the subject may not be worth the time and money.

Law Books

Many law books cite very old cases that were current or frequently cited when the book was first published. The publishers attempt to keep the books current by issuing “pocket parts,” that are additional pages that can be folded into the end of the book that contain updates since the book was published. But pocket parts can also fall out of date since they only come out every few months.

TV Shows About Lawyers

Growing up, I watched a lot of Law & Order. And while that show concerns criminal law and not commercial litigation, it gave young me a little insight into what being a lawyer in New York was like. In my current experience, it gets a lot of things right and a lot of things wrong.

Load Files to Document Productions

Load files may tell document review software what images together form a single document (for example, Bates numbers 1-25 are a single document, then numbers 26-28 are the next document, etc.). It may also tell the software which documents are “family members” of other documents, by saying, for example, that Bates numbers 26-28 are an attachment to an email found at Bates numbers 1-25.

Initial Disclosures

Counsel often make initial disclosures at the start of the case when they are the least familiar with the facts. After spending months studying the documents and interviewing witnesses, they commonly learn additional information about knowledgable witnesses and the location of information. Accordingly, they often update the disclosures by producing a supplement.

Stipulated Facts

Because both sides need to agree on the stipulation, they are often drafted in a neutral, non-argumentative way. So instead of stating “The defendant wrongfully trespassed on the innocent plaintiff’s property,” as a complaint may say, the stipulation may instead say, “The defendant walked into the living room at 35 Main Street.”

Motions to Disqualify Counsel

In some cases, the lawyer herself may be involved in the facts of the case and so have the need to testify as a fact witness. In those cases, she may be prohibited from serving as trial counsel through the “advocate witness rule.” This rule arises from the fear that a juror may believe a lawyer is more credible than a lay witness. This rule, however, ordinarily does not preclude the lawyer from representing her client in matters before the judge because courts are less concerned that judges will put undue credit on the testimony of a lawyer.

Expert Reports

A professional expert may seem less credible to a judge or jury; after all, their career depends upon providing favorable testimony to whoever pays them. But a professional expert may also be more knowledgeable about how to testify at depositions or at trial, or better able to prepare an expert report. And a professional expert may also be able to provide a list of previous cases in which other judges agreed that her testimony was persuasive, which may convince the next judge that she is reliable.

Statutes of Limitation

Some people wait a long time before approaching a lawyer with a potential case. When something terrible happens, a long, expensive, exhausting process may not be a person’t priority. But when people do come to a lawyer, no matter how valid their claim may be, it may not be successful if they waited too long. This is because statutes of limitation cause claims to expire.

Summary Judgment

Many court rules require a party who moves for summary judgment to submit a statement of undisputed facts. An example is Local Rule 56.1 in the Northern District of Illinois. This statement is usually separate from the memorandum of law and contains numbered paragraphs that state each fact that the movant states is not in dispute and therefore does not require a trial. After each statement, the movant should cite evidence to support the claim. And when drafting this statement, the movant should make sure that there is not evidence that disputes the claim.

Responding to Interrogatories

Getting answers usually involves working with the client and often reviewing source documents to ensure that the answers are correct. This is because a party is often bound by the answers provided in the interrogatories, so it is important that the responses are accurate. Moreover, the client often needs to sign a verification statement, swearing under oath that the statements in the interrogatory responses are true.

Oral Arguments

Unlike an argument in a bar or at the dinner table, oral arguments in commercial litigation usually have an organized structure. In a trial court, the judge normally invites the lawyer making a motion to explain why her motion should be granted. And at an appellate court, the judges invite the appellant’s lawyer to explain why the trial court’s decision should be reversed. Then the lawyer begins speaking and opposing counsel is supposed to remain silent. The judge or judges, however, may interrupt with questions and even maintain a back and forth conversation with the attorney about the arguments.