| March 2008 | e-Newsletter |
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Tips From the Trenches: The Sound of One Witness Thinking
by Mark Solomon
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Preparing a witness for trial or deposition testimony is allocated surprisingly little time at legal seminars. Its importance is never made clearer than when your client suffers a melt-down on the stand, effectively terminating any hope for a favorable verdict. A fundamental difficulty that needs to be explored is the disconnect between normal speech and testimonial speech, and how speech gets processed by the mechanics of a courtroom or deposition. As attorneys, we learn to navigate this disconnect instinctively; as counselors we must initiate our clients to the ways of the law.
Years back, I carefully prepared a client for the deposition, and instructed him to confine his answers to the questions posed. Nevertheless, within minutes, each of opposing counsel’s questions elicited a barrage of extraneous detail, unhelpful explication, and Joycean stream-of-consciousness babble. Occasionally, something responsive emerged from what otherwise sounded like speaking-in-tongues. By the fourth or fifth request for a read back the court reporter looked prepared to strangle me (because as we all know, it’s always the lawyer’s fault when the witness makes a reporter’s job harder).
It was going to be a very long day if I didn’t intervene. Here’s a valuable deposition tip: I always have a cup of coffee, can of soda, or bottle of water in front of me, to justify a "bathroom break" during which I hold a brief corrective conference with the errant client. I made my move within five minutes of knocking back my first cup of coffee. The reporter beat me out of the conference room, possibly because she was going to her car to retrieve a weapon, or more likely because my client did not understand that he needed a bathroom break too! Here’s how our conversation en route to the facilities went:
Client: How am I doing?
Lawyer: Well, you seem to be having some trouble keeping your answers to the point.
Client: (Indignantly) What do you mean?
Lawyer: We spoke about this earlier; just answer the questions—stop volunteering information.
Client: (Rising hostility) I am NOT volunteering information; you told me to think about the questions before answering them; I’m just thinking out loud.
Lawyer: Thinking isn’t supposed to make any sound; what you call thinking out loud, we call testimony.
Witness preparation is not complete until you’ve observed their conversational style, noted any verbal habits or tendencies that might lead to problems, and brought them to the witnesses’ attention. You have to strike a balance: on the one hand, you want your witness to appear comfortable and to speak naturally; on the other hand, testimony is decidedly not like normal conversation, or an interview. Every utterance is potentially part of a permanent record, every gesture is observed and judged, and answers must frequently be directed to people who did not ask the question. The witness who understands this can confidently handle herself under questioning by adverse counsel.
Tips from the Trenches, a new occasional column by Billable Hour Company partner Mark Solomon, provides a wry look at real-life law practice.
Is Practicing Law Fun?
by Julie Fleming Brown
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I’ve been having some interesting conversations lately with lawyers who demand a career that’s intellectually demanding, satisfying, financially successful, and fun. Fun? Can something as serious as practicing law be fun? These lawyers won’t settle for less. I’ve discovered 5 common attitudes and habits among these lawyers—how many do you share?
The lawyers I’ve met who insist on having fun (and who are, incidentally, deeply satisfied with their career and practice choices) are a divergent lot. Some practice in large firms, some are solos, and some practice in a midsized firm, in-house, or in a government agency. Their practices range the gamut from corporate to criminal to litigation, and their backgrounds are just as variable. But I’ve noticed 5 key similarities. Lawyers who have fun:
- Are invested in their practices. Whether it’s a deep commitment to a particular kind of client (those who’ve suffered a brain injury, for instance) or to some agenda he or she advances through practice (representing domestic violence victims or lobbying for stronger legal protection for animals), lawyers who have fun in practice have something at stake in their work. There’s an underlying purpose and value to practice for them, and they’re energized by it.
- Are able to laugh at the absurdities of practice. Every lawyer knows how utterly ridiculous practice can be at times. Experts take completely unsupportable positions and refuse to budge despite the evidence. Clients insist on the unattainable in ways big and small. And things just happen. So much of practice is deadly serious, but the lawyers who have fun know when and how to laugh, and they enjoy the humor.
- Find ways to integrate hectic practice and hectic personal life. Lawyers who have fun in practice know that all work, all the time is a recipe for burnout, so they strive to maintain boundaries around their personal time. By intentionally taking time away from practice (whether it’s on a weekly basis or whether it comes in the form of 2-week vacations when they’re absolutely unreachable), these lawyers preserve their energy with time away so they can be fully engaged when they’re practicing.
- Enjoy colleagues and clients. Lawyers who have fun like and trust the people with whom and for whom they work. Camaraderie lightens the mood (I remember and have heard all sorts of stories about working all night and staying energized by the other lawyers working then too) and offers opportunities to bat around ideas, strategy, and arguments, all of which can lead to great legal results and also great fun.
- Relish the bold and unconventional. Lawyers who have fun in practice enjoy taking a step out of the expected. Maybe it’s pulling words from The Devil’s Dictionary or making notes on an upcoming argument with a purple glitter gel pen or using dictaphones to record Dueling Banjos on a slow Friday. Or maybe it’s getting a little work done in the park on a nice spring day. The specifics don’t matter, but these lawyers have a healthy sense of play, individuality, and perhaps even rebellion.
Want more? There’s a new website out called LawIsFun.com. Although the site appears to be fairly barebones for now, more is promised soon. Its mission statement is encouraging:
Why Law Is Fun
We all had good, good reasons to attend Law School. Disappointment, frustration, and anger may have set in and distracted some very good practitioners from being satisfied with their profession.
But those reasons still reside in their hearts and minds. Not only is this a profession that can provide an amazing amount of personal satisfaction, but there are copious opportunities to have fun while doing it. This does not mean that you will be wearing clown paint to court, just that you can achieve a level of happiness and satisfaction beyond the frustration and anger.
The time has come for us all to remember what it was that drove us to sit through the LSAT, three or four years of law school classes and then one (or more) bar exams just to get into the profession.
Money? Pride? Satisfaction? Helping people? Being able to say "It’ll be okay—I’m a lawyer"? Whatever your reason, it’s as valid today as it was when you first started on this path. It’s time to rediscover and re-embrace that reason. And, Lawisfun.com is here to help!
I hope it’ll prove to be a good resource.
Julie Fleming Brown provides professional and personal coaching for lawyers on topics such as client and professional development, job searches, career transitions, and work/life balance. She is also certified to provide the DISC® assessment. Please visit http://www.LifeAtTheBar.com/ for more information and to arrange a complimentary coaching exploration session. To get your free Life at the Bar Survival Kit, go to http://www.lifeatthebar.com/MenuSignUp.htm
Remember, March is Women's History Month!
©Stu Rees. All rights reserved.
Like this cartoon? Send it to friends, clients or colleagues on greeting cards. To order, visit The Billable Hour Card Store.
Did you Know that Stu also licenses his artwork for use in newsletters, presentations, print publications and on websites? He even offers special rates for student and teacher use.
You can also purchase original artwork and custom prints (framed or unframed) from Stu.
Timesheet readers get 15% off all licensing orders, original artwork and custom prints (use coupon code BILLHOUR). Click here for information on licensing or purchasing "Supreme Court Restroom," click here, or visit www.Stus.com for more information on licensing one of the hundreds of other images Stu offers. For more information on original artwork and custom prints, click here.
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Greetings From TBH: More than Just Christmas Cards: Billable Hour Card Store Carries Cards for All Occasions
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While our unique selection of holiday cards for lawyers and legal professionals draws many visitors to The Billable Hour Card Store during the last quarter of the year, one thing that really sets us apart is our selection of funny law-related greeting cards for a variety of occasions.
Where else can you find a card that's just perfect to congratulate that former "wild child" on landing his first legal job?
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Anyone moving up on the law firm ladder will really get a kick out of "Send an Associate."
You can find all of our cards for special occasions under "Occassions" on the left side of the card store's main page; because we know you're busy, we've broken the occasions down even further, making it easy for you to find special cards for:
- New Job/Retirement
- Making Partner/Promotion
- Admission to the Bar
- Winning/Settling Case
- Closing a Big Deal
- Congratulations
- Anniversary
- Birthday
- Wedding
- Get Well
- Good Luck
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If you have a story about how you use TBH greeting cards, we'd love to hear from you: send your story to us at info@TheBillableHour.com. Tell us what card you use; who you send it to; what message appears inside the card; whether you take advantage of our optional free personalization features (do you upload your signature/logo? Do you upload a photo to be printed on the inside left panel?); whether you have your cards sent directly to the recipients or shipped to you; whether you have uploaded your contacts directly into your cardstore account to make sending cards even easier; and the reaction you've received from recipients.
©Dan Rosandich. All rights reserved.
Like this cartoon? Send it to friends, clients or colleagues on greeting cards. To order, visit The Billable Hour Card Store.
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Video of the Month: My Attorney Bernie
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Finally, someone who really appreciates her lawyer! Composer Dan Frishberg is one of the brilliant musical minds behind Schoolhouse Rock and other hip and funny tunes. Singer/pianist Blossom Deary's recordings belong in ever music lover's collection.
(Yes, we know it's kind of weird to hear the words coming out of the dog's mouth, but the song is just fantastic.)
To watch more of the funniest law-related videos from all over the web, join us at The Video Venue!
Special Book Excerpt: Many a Quaint and Curious Volume
by Adam Freedman
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When all is said and done, the result of litigation—apart from some very satisfied lawyers—is a written decision. Judicial decisions are published in books called law reports—volume after volume after volume. When you see a lawyer on TV against a backdrop of official-looking books, they’re probably law reports. Because everything in Anglo-American law depends on precedent, law reports are the single greatest authority as to our rights and responsibilities. They represent the distilled wisdom of centuries of judicial thought.
On the whole, they make lousy reading. They are as wordy, technical, and dry as one would expect from hundreds of pages of densely-packed legalese. And erudite—judges are learned men and women, and they won’t let you forget it. In one 1997 opinion, for example, a Federal judge reminds us that laches—the argument that a plaintiff delayed too long in filing a lawsuit—"is an equitable defense based on the maxim vigilantibus non dormientibus aequitas subvenit" and then immediately provides the English equivalent: "equity aids the vigilant, not those who sleep on their rights." The real translation being, "Look at me, I speak Latin!"
And yet, now and again, one comes across a decision worth reading. Judge Bruce Selya, for example, likes to poke fun at lawyers’ obsession with citing authority for every proposition by peppering his opinions with lines like "But appearances can be deceiving." See Aesop, The Wolf in Sheep’s Clothing (Circa 550 B.C.)" British judges sometimes display a certain literary flair and none of them more so than the late Lord Denning (1899-1999). In case after case, Denning distinguished himself from the run-of-the-mill judges with his whimsical style:
In summertime, village cricket is a delight to everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in the County of Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown . . .
Denning’s opening lines often left no doubt as to where his sympathies lay:
To some this may appear to be a small matter, but to Mr. Harry Hook, it is very important. He is a street trader in the Barnsley Market. He has been trading there for some six years without any complaint being made against him; but, nevertheless, he has now been banned from trading in the market for life. All because of a trifling incident. . .
In one case, a parking lot operator punctiliously argued that a customer should have read the conditions printed on the back of the parking lot ticket (the one that the machine spits out). Denning breezily rejected the argument, observing with rare common sense "No customer in a thousand ever read the conditions [on the back of a parking lot ticket]. If he had stopped to do so, he would have missed the train or the boat."
If you hunt through the law reports you’ll even find poetry. In 1983, for example, a Michigan court faced an utterly frivolous lawsuit brought on behalf of a tree that had been hit by a car. The judges dismissed the suit with nothing more than 12 lines of original verse modeled on Joyce Kilmer’s famous poem "Trees." It began:
We thought that we would never see
A suit to compensate a tree.
In 2002, Pennsylvania judge J. Michael Eakin used poetry to support the petition of a woman who wanted to invalidate her prenuptial agreement. The reason? Her husband—a much older man and a millionaire to boot—had given her a "diamond" ring that turned out to be a fake. Judge Eakin waxed poetic:
A groom must expect matrimonial pandemonium
when his spouse finds he's given her a cubic zirconium. . . .
She was 19, he was nearly 30 years older;
was it unreasonable for her to believe what he told her?
Given their history and Pygmalion relation,I find her reliance was with justification.
Given his accomplishment and given her youth,
Was it unjustifiable for her to think he told the truth?
Or for every prenuptial is it now a must,
that you treat your betrothed with presumptive mistrust?
Not only was Eakin overruled by the other two judges on the panel, but his killjoy brethren even went out of their way to express "grave concern" that the use of rhyme "reflects poorly on the Supreme Court of Pennsylvania."
Lighten up. Eakin’s bit of doggerel is nothing compared to that of a Kansas judge who once sentenced a prostitute to prison with an opinion that began with this couplet:
On January 30th, nineteen seventy-four,
This lass agreed to work as a whore.
For that, the judge earned an official reprimand from the Kansas Supreme Court.
If you find yourself developing a taste for law reports—and, like soap operas, they can be addictive despite the long stretches of tedium—the future has never looked brighter. Litigation is one of America’s great growth industries, promising an ever-increasing flow of court decisions. The inexorable growth of lawsuits in the US is mainly due to an area of the law called tort, which we will examine in the next chapter.
Excerpted from the book The Party of the First Part: The Curious World of Legalese by Adam Freedman. ©2007 by Adam Freedman. Reprinted by arrangement with Henry Holt and Company, L.L.C.
Lawtoons
by Suzan Charlton, Esq.
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click here to enlarge (large file; please be patient)
©Suzan Charlton. All rights reserved.
Like this cartoon? Send it to friends, clients or colleagues on greeting cards. To order, visit The Billable Hour Card Store.
Suzan Charlton is a professional cartoonist who is rumored to practice insurance coverage law as a hobby for a major Washington D.C. law firm. Her cartoons cover a wide range of law-related topics, from law school grades to law firm romance.
Song of the Month: The Billable Hour Blues
by Dan Klau
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(sample)
Available on The Billable Hour Blues
When I was 21, my Dad said to me,
"Son, its time for you to decide what you’re gonna be."
I said, "I’ve thought about it, Dad,
Don’t want no MBA."
He said, "Then how about med school,
Wouldn’t’ that be o.k."
I said, "no M.D. for me Dad,
Of that I’m sure.
I think I’ll go to law school,
Just a three year tour."
I took the LSAT in my senior year.
I got a 41 and I began to cheer.
I went to Harvard Law School,
Got a gentleman’s C.
A big Manhattan law firm recruited me.
So after graduation I went there for a job,
And ever since I did all I’ve done is sob.
Why?
I’ve got the billable hour blues,
That’s what I got,
I work 18 hours a day,
My eyes are bloodshot.
My life is a time sheet,
Filled with six minute slots.
I know I make good money,
But my stomach’s tied in knots,
The worst thing about it,
I’m sure you’ll agree,
Is that I’m just a fungible commodity.
I spent my first few years in the firm’s library,
Researching memos on legislative history.
On spent my next years in a small, damp room, reviewing documents,
all morning and afternoon.
In my fifth year, I finally went to court.
I carried the partner’s briefcase like some damn consort!
In my eighth year I had my very first trial,
I picked a jury, and I began to smile.
After 8 years of pushing paper every day,
I was finally having fun, hip, hip, hooray.
But the case settled, like they usually do,
Whenever people decide to sue.
I’ve got the billable hour blues,
That’s what I got,
I work 18 hours a day,
My eyes are bloodshot.
My life is a time sheet,
Filled with six minute slots.
I know I make good money,
But my stomach’s tied in knots,
The worst thing about it,
I’m sure you’ll agree,
Is that I’m just a fungible commodity.
In my 9th year, I got that dreaded call,
From the managing partner
So I walked down the hall.
Then he told me, it was not meant to be.
"Son you're just not partner materiality."
At first I cried,
But then I danced a jig,
‘Cause I was finally free of this lousy gig!
So I went out, and found myself a new job.
I’m still a lawyer, but now I work for the mob.
Defending scumbags, that’s what I do.
At least I’m happy, something I never knew.
No more damn time sheets, I threw them all away.
Now I just whistle, throughout the working day.
Just one of the hilarious songs on
Poeticus Lex: Trust Me
by Fred C. Russcol, Esq.
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The account is in my name, I see,
But the monies don’t belong to me;
I hold them for my clients’ sake—
Of these funds I cannot partake,
For the fine Attorney Discipline folks
About this don’t go cracking jokes;
If my income should go bust,
I cannot violate this trust,
Even if my fisc’s bereft,
Taking from these funds is theft—
If trust accounts are overdrawn,
They’ll disbar my pinstriped butt at dawn.
Fred C. Russcol, Esq. is Of Counsel to Castro & Remer, P.C. in Ossining, New York. This poem was originally printed in the Westchester Bar Journal and is reprinted with the permission of the Westchester County Bar Association.
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