The massive clusterfuck (I’m sorry, but there’s no better word for it) in Ferguson, Missouri has many people calling for transparency. I’ve heard it in every news story about Ferguson and the killing of Mike Brown, either in the form of body cameras for cops, in reference to the evidence or the grand jury process, or in other ways. It comes up when talking about the protests, the no-fly zone, and nearly everything else about Ferguson.
Everyone knows we cannot get perfect information, but people feel they deserve better information, at least. I don’t know what everyone means by transparency (I don’t think they know what they mean, either, in many cases), but we have at least one example of what it could look like.
Serial, the wildly successful podcast from This American Life (by my rough estimate, 96% of the people in my part of town are listening) is a deep dive into the murder of Hae Min Lee and the conviction of Adnan Sayed, her ex-boyfriend, both Maryland teenagers at the time of the murder. There are 9 episodes as of this writing, and most of us who are listening can hardly wait for the next episode, which comes out next Thursday. Serial is a compelling story, but as Joyce Barnathan explains at the Columbia Journalism Review, it is also an exercise in radical transparency:
What Koenig does that we don’t normally do is share our thoughts and views as we research a story. Normally we do all that work before publishing. We give our audience the most intelligent assessment we can. We go through the same hard work of interviewing and researching as Koenig—and we suffer through the same anxieties and soul searching. The difference is, we never make that work public. She breaks new ground because she makes journalism more transparent—and in my view, adds tremendous credibility to our field.
The killing of Mike Brown probably wouldn’t make a good subject for Serial partly because most people have already made up their minds. One reason the show is so compelling is that we come to it as fresh as Koenig does. The killing of Mike Brown also has many fewer moving parts and mostly consists of conflicting eyewitness testimony. But I think an approach like Koenig’s is what people mean when they talk about transparency. I don’t think they just want access to the raw materials. I think they want access to the raw evidence and to be led through it by a neutral skeptic.
Some have tried. Vox‘s Ezra Klein dug into Officer Darren Wilson’s testimony and the testimony of Brown’s friend and eyewitness, Dorian Johnson. Here’s a summary of eyewitness testimony from Mashable, with pie charts. Many other media sources (the Washington Post, for example) have gone over the evidence, too, but most are piecemeal glosses. None have taken a holistic, Serial-style deep dive into the case. Perhaps more important, none have packaged up that deep dive in a way that makes it compelling to readers or listeners.
It’s easy to be certain — of someone’s guilt or innocence, of the carriage or miscarriage of justice, of the intent of everyone involved — when you know just a few facts. The picture changes considerably when you lay out the evidence you have to work with and try to assemble a coherent narrative to sell to a jury or audience. This isn’t news to litigators or reporters, but it is eye-opening for pretty much everyone else.
Transparency is just the first part of putting together the evidence. Most people cannot make meaningful use of the raw evidence without someone to put it all together. On the other hand, the grand jury decision, public statements by police, prosecutors, and politicians, and published articles leave out too much detail. Ezra Klein’s posts at Vox are helpful, but still lack the detail to help someone make up their own mind.
Without someone to break down the evidence, put it in context, and help weigh it, there is no meaningful transparency. That is why I really hope someone will do a Serial-style analysis of the killing of Mike Brown.
I realize the protests are not just about the killing of Mike Brown. People are mad because cops arrest and kill a massively disproportionate number of black people (caveat: most common data sources are definitely problematic), and the killing of Mike Brown finally got people pissed off enough to take to the streets. The protests probably won’t go away no matter what really happened. But the protests are also about the killing of Mike Brown, and from the outside it’s really hard to know what the heck happened.
My first depositions were often frightening experiences. Like most new lawyers, I plunged ahead and tried to do my best, but I rarely felt at ease.
As my discomfort gave way to confidence, I developed techniques I began to use at every deposition. What follow are guidelines, not hard-and-fast rules. But I consider these techniques so useful I continue to use them today.1. Show Up Early
Always arrive first at depositions. Some lawyers prefer to showboat by arriving late, but they’re missing an opportunity to take charge of the deposition space.
If you noticed the deposition — as in it’s “your” deposition — you can arrange the deposition space any way you like. In cases where another lawyer has noticed the deposition but decided to arrive late, assume he or she will be happy for you to take charge.
If you are going to be questioning the witness, the witness should sit directly across from you. Put the court reporter at your side, usually at the end of the table. The opposing lawyers can sit where they like, but don’t welcome them into the more intimate space you are sharing with the witness and the court reporter.
Stage management is most important when space is limited. When the deposition takes place in a doctor’s office or hotel room, for example, make sure you aren’t shunted off to the side with papers on your lap.2. Make Small Talk
Even if your stomach is doing flip-flops about what lies ahead, force yourself to make small talk with the other early-arrivers.
Court reporters are good sources of legal gossip that might affect your case, your firm, or your career. Small talk can also lead to a relationship with a trusted reporter whom you begin to request for all your cases.
I once had such a relationship with a court reporter. Small talk before a deposition revealed he was old friends with my parents. He quickly became my go-to reporter. Not only were his transcripts perfect, but he would tip me off about other lawyers and their deposition styles. If asked, he would even tell me what I was doing wrong.
Talk to the opposing lawyers too. Get to know the actual people behind those prickly letters and emails that fill your file. One day, you will be talking about settlement with those people or their bosses.
Consider it another chance for gossip. Many times, I have received the inside scoop on high-stakes litigation from opponents with an unexpected friendly streak. The legal profession is not going to suffer from more comradery among lawyers, and neither will your case.3. Keep Your Temper in Check
The ethical requirement of zealous advocacy does not extend to rudeness or anger during a deposition.
Though court reporters should always be off limits, I have seen lawyers bully them about equipment snafus or whether an exchange was on or off the record. Whatever momentary advantage these lawyers gained, they lost in terms of damage to their reputations.
What about yelling at opposing lawyers? As I’ve learned from hard experience, shouting matches and all lesser displays of rudeness are counterproductive. Rather than yell during depositions, I now try to get more sleep the night before.
Yelling at witnesses? Never. There are many ways to control a witness. Raising your voice isn’t one of them.4. Don’t Be a Slave to Your Outline
I’ve written an entire book about deposition outlines. But outlines should be a tool, not a crutch.
We have all seen lawyers so wedded to their outlines they fail to ask important follow-up questions. Instead, they plow ahead, eyes on their notes rather than the witness, not slowing down until they’ve gasped out their last scripted question.
The better approach is to follow answers where they lead. Abandon the outline completely if that’s what your gut tells you to do. Toward the end of the deposition, call for a break, consult your outline, and keep going if you have missed something important.
Outlines can also bloat depositions beyond what a case requires. Always be as brief as possible. It’s easier said than done, but what a windfall for everyone when it happens.5. Be An Active Listener
Sometimes a witness will answer a question other than the one you asked. Unless you are listening carefully, you might not realize how skillfully the witness has just evaded you. Do not move on to the next question unless you have heard and understood the witness’s answer.
When another lawyer is questioning the witness, you have another opportunity to actively listen. Every question must be parsed in real time so you know whether to object.
You should also listen to yourself whenever you are speaking on the record. Even if you know what makes a good deposition question, practice overhearing your own words as they exit your mouth. I do this by visualizing my questions as I say them, as if I am reading them already printed in a transcript.
Not only will your questions improve, but you will eliminate the “okays” and other throat-clearings that mar so many transcripts.6. Critique Yourself
The most valuable habit I developed as a young lawyer was to systematically critique my own performance.
For at least my first hundred depositions, I took notes immediately afterwards. I recorded the case, the type of deposition, the names of the court reporter and the other lawyers. I then assessed the results — what went well, whether I met my goals, and how I screwed up. I also paid attention to the other lawyers in hopes of learning from the more experienced.
After receiving the deposition transcript, I had a second opportunity for self-criticism. For those first hundred depositions, I read my transcripts carefully, sometimes marking up a copy with suggestions. I also kept my best depositions on hand for later reference.
These notes and transcripts helped me prepare for my next deposition. Some early examples of repetitive mistakes: agreeing to stipulations I didn’t understand, fumbling with deposition exhibits, getting rattled by objections, and failing to pin down witnesses.
As a new lawyer, I learned to do depositions mostly by trial and error. If that’s your experience too, you’ve probably developed your own set of useful deposition techniques. Consider adding to these six that have proved so useful to me.
Featured image: “Isolated words in vintage letterpress wood type on digital tablet screen with a cup of coffee” from Shutterstock.
Every year, the ABA Journal assembles a list of 100 legal blogs (the Blawg 100). Lawyerist has been on that list since 2009, and I guess the ABA got sick of seeing it there because this year we made it into the Blawg 100 Hall of Fame!
It’s also time to vote for this year’s legal blogs (including Lawyerist for the last time). Even if you don’t vote, the Blawg 100 is a great starter list for updating your bookmarks, RSS feeds, or email subscriptions.
Inboxes are meant to be emptied, not used for long-term storage. That goes double for your email inbox, which is far more useful if you empty it on a regular basis.
If you allow things to pile up in your inboxes — physical or virtual — they become a constant reminder of all the stuff you think you have to do. Besides being a distraction, a pile of paper and a bursting email inbox are a pretty ineffective way to figure out what you ought to be working on.
Related Getting Things Done, for Lawyers
When it comes to email, you can empty your inbox regularly by sorting its contents into action-oriented folders and ruthlessly archiving or deleting anything you don’t need to see again. If this sounds suspiciously like Getting Things Done, you’re not far off. But you don’t need to know a thing about GTD in order to practice Inbox Zero.
Inbox Zero is the brainchild of Merlin Mann, who adapted the Getting Things Done system to email. He did not invent the concept, though. Well before I ever heard of Merlin Mann or Inbox Zero, I read a Time Matters white paper recommending much the same system.1 You can (and should) watch his “Inbox Zero” talk at Google here:
Related This Simple Email Habit Will Make You More Productive
(If you don’t have an hour to watch the Merlin Mann video, start here.)
It’s a one-hour video, but you should make time for it. Inbox Zero, like GTD, is basically “advanced common sense.” When you watch Mann’s presentation, I think it will click for you, and you might even get excited about sorting your email, of all things.
The video is all you need to learn the system, but Mann’s posts about Inbox Zero are available on his website, 43 Folders
The basic idea is to create four folders for your email:2
At least once a day, sort everything in your email inbox into those folders. Don’t open an email without sorting it into a folder. While you are at it, ruthlessly archive or delete anything you don’t need to keep staring at when you open your email.Processing Your Inbox
Inbox Zero is about figuring out what you have to do and sorting the rest into useful places. You don’t have to explicitly follow Merlin Mann’s framework, but it is a useful starting point. After years of practicing Inbox Zero, here is the most-efficient way I have found to process your inbox.Archiving and Deleting
Archiving or deleting is the most important part of processing your email inbox. The majority of most email is unimportant, and there is no reason to save it. So delete it.
Anything that you need or want to hold onto, but that you don’t have to act on, you can archive. In Outlook or any other mail software, just create an Archive folder. In Gmail, just use the Archive button.
If you want to use a folder for each client or matter, you can. These folders are still part of your archives. So are folders like bills & receipts or save3
You can do this, but I think sorting into multiple archive folders is a waste of time. If you need something from your archives, it is easier to search for it. Periodically or when you close a file, just search for all the names and email addresses linked to the file, and convert everything to a PDF you can save to the file (or print out, if you like wasting paper).
And if you do decide to sort your messages into client-specific folders, make sure you do it with your sent messages, too.Turning Emails Into Tasks
Instead of Mann’s four labels, you really just need two: _do now and _waiting (underscores make the folders or labels sort to the top of your list). Things to do later or tasks with deadlines should get moved to your task manager, whether that is Remember the Milk, a work plan, Microsoft Outlook, or whatever you prefer to use. Keep a someday list somewhere, too, for things you don’t want to forget but don’t want to do now. You can use your task manager or Evernote or a piece of paper in your desk drawer. It doesn’t really matter.
The do now folder4 is for anything you can start working on immediately (even if you are not going to). In GTD, do now just means stuff you could do right now, not stuff you have to do right away. It functions as your email to-do list.
If you wanted to, you could skip the do now folder entirely and create a task in your task manager for each email you need to act on. It is often easier to just work from your do now folder, though, so you don’t have to go looking for the emails associated with your to-do items. But if the task does not involve email directly, you can move it to your regular task list.
If you are waiting on a response or you have delegated a message to someone else, file it in the waiting folder. About once a week, go through this folder and send reminders when appropriate.
In Gmail, you can use the multiple inboxes add-on to see your inbox, starred (do now) messages, and waiting messages at the same time. Otherwise, just keep an eye on those folders.Workflow
When you sit down to check your mail, process it right then and there.
Start by looking at the list of messages without opening anything, and delete everything you don’t even need to see. It’s fine to open messages in order to unsubscribe from newsletters you no longer want to receive.
Next, if anything looks like something you can do immediately in less than a minute or so, go ahead and do it. Just get it out of the way. As you do this, and as you get through any additional messages you encounter, sort stuff to where it belongs. Sort the messages that represent something you can start working on immediately (whether or not you are actually going to do them now, and move them to your do now folder or star and archive them.5
Your emphasis now should be on sorting, not doing, but if you can move a message along with a quick reply or forward, go ahead and do it, then sort the message thread into the appropriate folder or archive it. For example, a client may be looking for an update, and all you need to respond is something along the lines of “nothing to report; I’ll let you know when I have news.” After that response, you can archive the message thread. Or you might decide to forward that email to your junior associate to draft a response. After you forward it, move the thread to your waiting folder.
If a message requires more than a minute or so of your attention and you don’t need to get to it right now, move it to your do now folder.
If a message represents something you need to do later, add a to-do item with a due date in your task manager, and archive the message.6Getting Started
Let’s say Merlin Mann and I have convinced you that Inbox Zero is worthwhile. Right now, you probably have hundreds or thousands of messages sitting in your inbox. Here is how to get from thousands of messages to zero messages.
If you are like most people, you probably have a few things in your inbox that represent things you can do now, a few things in progress, and a lot of other stuff. You could sift through all that other stuff and file it all carefully, but I don’t recomment it.
Start by getting the do now and waiting items where they belong. Then, do a quick Ctrl A (or Cmd A for Mac users), and archive everything else.
Done. If you want to go through your archive later, go ahead. But don’t waste time sifting slowly through everything. Get to Inbox Zero as quickly as possible, and make it your daily (at least) discipline from now on.Updates
Featured image: “close up of an email program screen on a computer monitor ” from Shutterstock.
Mann uses different labels — delegate, respond, defer, do — but they amount to basically the same thing. I use do now in place of do and respond, since I don’t see a good reason to separate them. I use do later in place of defer since it is a more helpful label to me. Waiting contains messages I have delegated to someone else, along messages for which I am waiting on a response. To read contains messages I need to read or consider carefully before I can act on them or archive them. ↩
Google Apps lets you set an auto-delete timeline. For example, you can automatically delete all messages older than 10 years. You can also exempt a label (save, for example) from auto-deletion. ↩
In Gmail, you could just use the starred items folder for this, since you can easily add and remove stars right from the inbox. ↩
In Gmail, archived messages will still show up in any label, including the Starred label. You can also find them under All Mail. ↩
In Outlook, you could also just flag the message for later, which amounts to creating a task with the email attached. ↩
Just as colon the organ, um, moves things along, so does colon the punctuation mark. It signals to a reader that what follows is a list, an elaboration or definition, or something else that continues the thought. It says that what follows is so closely related to the first part of the sentence that a period is too abrupt, but not so close as a comma would indicate. In a driving metaphor, think of a colon as a tap on the brake before moving the car into a curve.
If you have decided you need to get serious about client data protection, you will need to consider encrypting both your data and your communications. We have previously covered how to encrypt your data and will focus here on how to encrypt your email communication.What Is Encryption?
Simply by using the Internet, you are probably using some sort of encryption scheme during some activities, whether you know it or not.
Encryption is simply the act of turning your data into unreadable gibberish. If your data is intercepted or hacked, the thief now has nothing but a pile of garbage.
End-to-end encryption is a must for transferring sensitive data across the internet. In end-to-end encryption, your data is encrypted while it travels towards your intended location and the same encryption occurs on the reverse trip. Your bank (hopefully) uses end-to-end encryption. Your practice management software (hopefully) uses end-to-end encryption if it stores and syncs data remotely. This sort of encryption is done for you without any effort on your part, as it is just a standard feature of the infrastructure you are using to bank or update client data or similar activities.Why Do You Need to Care?
A few years ago, the ABA issued a formal ethics opinion stating that if there is a significant risk that a third party might gain access to the email, attorneys have to warn clients about that risk.
This poses a problem, because unlike your bank and practice management software, email is usually unencrypted. This is true whether you are using an desktop client or a web-based email like GMail.Encrypting Email with Outlook
While changing a setting in Outlook is relatively simple, encrypting your email isn’t a one-way street. The person receiving your email has to be able to decrypt your email and, ideally, send you encrypted email in return. That makes it significantly more complicated than simply scrambling your hard drive, because you need to give your recipient a way to send you encrypted messages and decrypt any message of yours.
As a first step, encrypting an email message (in Outlook or elsewhere) does exactly what you would expect: it transforms the message from readable text to gibberish. However, now you are sending gibberish to your client, which doesn’t seem very helpful. You need to give your recipient a way to decode your message, which is where the notion of public and private keys comes in.
You and your recipient first need to share something called a public key certificate. A public key is a string of letters and numbers that you give to anyone that wants it, either via your website, through Outlook’s contacts, or in person. If someone wants to send you encrypted email, they look up your public key. When you receive that email (which, remember, is complete gibberish), your private key — which only you possess — will decrypt that message.
In Outlook, this all happens behind the scenes once you have set up your keys. Outlook will encrypt attachments and inform you when you are emailing someone who does not have encrypted email set up and ask if you want to send a plain text email. Things work in a roughly similar fashion in other desktop clients like Mozilla’s Thunderbird.Encrypting Web-based Email Clients
If you are using a web-based email client, things can get much clunkier. Here, for example, is the software required for Lifehacker’s “easy” email encryption.
These are, by computer wizard standards, relatively minimal steps. The Freedom of The Press Foundation has a very extensive guide on how to set up PGP (Pretty Good Privacy) encryption in the most secure fashion possible. That guide also points out, however, that setting up PGP is so user-hateful that Glenn Greenwald had difficulty getting it to work so he could talk securely to Edward Snowden.
After you install all of that software and get up and running, you will need to ensure that all your recipients do the same, just as with Outlook, because that encryption will only work if both parties sign on. The upside of the more complicated method is that PGP is likely superior to the encryption Outlook offers.Using a Secure Client Portal
A less difficult alternative is to communicate with your clients via a secure client portal. You already use secure portals even if you don’t call them that. When you contact your bank via their website to make transactions and communicate with bank personnel, you are working within a secure portal. The portal is an encrypted location where all communication takes place, rather than using email to send documents and information back and forth. Several case management software applications, including Clio and MyCase, already have portals built in. Typically, all you need to do is give your client login information to navigate the portal. The portal allows the client to view calendars and tasks and send documents like drafts, emails, and bills.
From the client’s perspective, the portal is a much less daunting task than dealing with encrypting their email. Everything inside the portal is encrypted, and as long as you can convince your client to only communicate via the portal rather than conventional email, you will have moved your client communications to a secure and encrypted environment.
As far as being certain that you are meeting your ethical obligations to ensure the relative security of your communications with a client, Outlook’s encryption and a client portal may be sufficient. But regardless of which method you choose, it is likely lawyers will find that both clients and the ABA have an increased expectation of email privacy, and attorneys will need to take steps to ensure that expectation is met.
Featured image: “encrypted digital lock” from Shutterstock.
Despite his brave but bumbling efforts to defend himself while in costume, Dennis Hawver was disbarred by the Kansas Supreme Court for “inexplicable incompetence” during a 2005 capital murder trial.
The video above starts at the beginning of Hawver’s argument. The best part, though, is at 39:06 where he bangs on the podium and says “I AM INCOMPETENT!” which is a dubious strategy if your competence is the question before the court.
The duty of confidentiality owed by lawyers to their clients is one of the foundations of the attorney-client relationship. Generally, this duty is memorialized in ABA Model Rule of Professional Conduct 1.6., which states in part that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation, with certain exceptions listed in Rule 1.6(b).
Lawyers routinely advise clients of the duty of confidentiality and caution clients about protecting the attorney-client privilege. Lawyers take care to ensure that conversations with clients are not overheard and recommend that clients do not discuss their communications with others. Precautions are taken to ensure that communications between lawyer and client are not overheard. Changing technologies add a new layer to the issue of confidential communication.Lawyers and Electronic Communication
Email has become a mainstay in attorney-client communications, but use of email and other means of electronic communications, including text messages, can give rise to additional confidentiality concerns. While lawyers have used email disclaimers in the past, these disclaimers are generally insufficient to quality as ‘reasonable steps’ to preserve client confidentiality.
In August 2011, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 11-459 relating to a lawyer’s duty to protect the confidentiality of electronic communications with clients.
The opinion specifically addresses the use of electronic communications and whether clients may have a reasonable expectation of privacy when using such forms of communication. Specifically, the opinion notes that lawyers should instruct clients to avoid using workplace devices or systems for sensitive or substantive communications between lawyer and client. According to the opinion, the duty of a lawyer to so advise the client arises as soon as the lawyer knows or reasonably should know that the client is likely to send or receive substantive lawyer-client communications via electronic means “where there is significant risk” that the communications will be read by a third party.
The opinion recites four considerations that would tend to establish an ethical duty for a lawyer to warn the client against using a business device or system for electronic communication: Where the client has already communicated by electronic means or has indicated an intention to do so; where the client is employed in a position that would provide access to a workplace device or system; given the circumstances, the employer or a third party has the ability to access the email communications and; that as far as the lawyer knows, the employer’s internal policy and the jurisdiction’s laws do not clearly protect the privacy of the employee’s personal email communications via a business device or system.
According to the opinion, lawyers should ordinarily assume that an employer’s internal policy allows for access to the employees emails sent to or from a workplace device or system. The Opinion recommends that lawyers refrain from sending substantive communications to a client’s workplace email address, and that they caution clients not to send electronic messages to their attorney through such an account, or through a personal email account using a workplace computer or system. The opinion goes so far as to note that a lawyer who becomes aware that the client is receiving personal email on a workplace computer or other device owned or controlled by the employer has a duty to warn that this practice should be discontinued. If the client does continue, the Opinion recommends that the lawyer stop sending electronic communications even using the personal email address.Ethical Precautions
In addition to the cautions noted in the Opinion, it would be prudent for lawyers to ask specific questions of their clients at the time of the initial consultation which would establish not only the preferred means and methods of communication, but also to uncover potential confidentiality leaks. For example, although many employees may be aware that accessing their personal email via a work computer might potentially allow the employer to view their personal email, the same employee may not be aware that accessing their personal electronic messages via an employer-provided smartphone might raise similar issues. Text messaging, which is becoming more and more popular, particularly with younger clients and lawyers alike, may raise comparable concerns.
But employer-provided computers, systems and smartphones are not the only concern here. Even where a client accesses personal email on a personal smartphone or home computer, lawyers should be sensitive to issues of access by other third parties, such as family members, particularly in cases such as divorces or will contests. Other problems may arise with the use of hotel or library computers as well.
Part of the lawyer’s duty to a client is to educate the client about the nuances of the attorney-client relationship and the obligations of both lawyer and client to preserve that confidentiality. Lawyers should instruct clients specifically about how email and other forms of electronic communication should or should not be used during the course of the representation.
Stephanie Kimbro also commented on the Opinion over at Virtual Law Practice. Kimbro recommends that attorneys use only encrypted email when communicating with clients, or that they institute the use of a system which requires both parties to log into a secure, encrypted area in order to communicate.
It remains to be seen whether the ethical obligations of lawyers will be extended to require encryption of email in certain circumstances in the future.Updates:
“Making It Sing: How Rhetorical Writing Techniques Can Improve Your Writing” was originally published in the Summer Edition of the Vermont Bar Journal. It is republished here with permission.
I am the last one to suppose that a piece about the law could be made to read like a juicy sex novel or a detective story, but I cannot see why it has to resemble a cross between a nineteenth century sermon and a treatise on higher mathematics.
The late Professor Fred Rodell of Yale Law School once observed of legal writing, “I am the last one to suppose that a piece about the law could be made to read like a juicy sex novel or a detective story, but I cannot see why it has to resemble a cross between a nineteenth century sermon and a treatise on higher mathematics.” Those words, written in 1962, still ring true today, as any law student reading judicial opinions and any judge reading lawyers’ motions and briefs can attest.
Several likely culprits account for the poverty of style in much legal writing. First, many of the topics that must be addressed (e.g., sovereign immunity, laches, or the statutory standard for modifying a spousal maintenance order) are not inherently engaging. Second, lawyers often face considerable time pressure while writing; hence they are satisfied with pleadings and appellate briefs that are clear, grammatically correct, and reasonably concise. Rhetorical elegance may be a luxury they feel unable to afford. Third, they probably did not learn how to write elegantly in law school because the writing professor was necessarily preoccupied with purging comma splices, the passive voice, and hoary legal jargon from a small mountain of papers.
Consequently, unless a lawyer uses uncompensated time to learn how to write elegantly, that lawyer will at best write serviceable, but unmemorable, prose, thus foregoing an extra edge that could mean the difference between winning and losing a case. To give you that extra edge, this article will present rhetorical techniques you can use to dress up your prose without bloating it with adjectives or otherwise sacrificing the clarity and brevity that legal writing requires. For examples, it will draw on the work of several of the Supreme Court’s best writers, who used rhetorical techniques to produce some of the most momentous opinions in the Court’s history.Rhetoric: A Short History
The word “rhetoric” has a negative connotation these days, calling to mind “meaningless political exaggeration or mere stylistic embellishment.” But rhetoric is a venerable discipline, dating back to the ancient Greeks. Rhetoric is most succinctly defined as “the art of civic persuasion.” Its importance to public discourse is reflected in the words of its most prominent practitioner, Aristotle, who said, “[I]t is not enough to know what to say—one must also know how to say it.”
Despite its classical pedigree, rhetoric was controversial even in ancient Greece; indeed, Plato (Aristotle’s teacher) had no higher opinion of it than do modern voters who use it to characterize what they perceive as empty promises by politicians at election time. In Plato’s view, rhetoric was manipulative and unable to lead to truth; only “dialectic” (philosophy), a reasoned exchange of ideas between two scholars, could reveal the truth. Put simply, Plato thought rhetoric lacked intellectual substance. Rhetoric likely got its bad reputation from the Sophists, contemporaries of Plato who were courtroom advocates and teachers of rhetoric known for trying spurious lawsuits, thereby spawning the term “sophistry” to denote clever, but false argument.
Aristotle, however, defended rhetoric, arguing that a rhetorician attempts to persuade not only by appeals to the emotions (pathos), but also by appeals to logic (logos) and by demonstrating an ethical character (ethos). Therefore, in Aristotle’s view, rhetoric served justice rather than thwarting it, by facilitating the consideration of opposing viewpoints, which begets truth in the courtroom.
Rhetoric was out of favor in American legal education during the nineteenth century, as law schools adopted a truth-seeking “scientific” approach to teaching law that cared not for how a legal argument was presented, only for the truth of its contentions. By the turn of the twentieth century, though, rhetoric began to enjoy a renaissance, as Plato’s quest for absolute truth had become outdated, and scholars increasingly saw truth as relative and the offspring of a rhetorical process. Nowhere is such skepticism more evident than in the famous statement by Justice Oliver Wendell Holmes, Jr., that “[t]he life of the law has not been logic; it has been experience.” Implicit in that statement is the recognition that judges decide cases not by finding absolute truth, but instead, by reconciling competing and relative interests, which necessarily involves subjective judgment. More recently, Judge Richard Posner of the Seventh Circuit has written that rhetoric is important because “many legal questions cannot be resolved by logical or empirical demonstration.” Put another way, no matter how compelling an argument one can make that the Supreme Court decided Lochner v. New York wrongly, “[i]t’s impossible to prove Lochner was decided wrongly.”Using Rhetorical Techniques in Legal Writing
Sprinkle, don’t pour, rhetorical devices on your writing.Imagery
Legal writing can benefit from several rhetorical devices, including imagery, figures of speech, word choice, rhythm, and literary allusion. Vivid imagery is always more memorable, hence likely more persuasive, than colorless or muted language. For example, if you were writing the statement of facts for a memorandum or brief in a drunk-driving case, you could write: “On his way out the door, Smith staggered against a serving table, knocking a bowl to the floor.” But your description would better evoke intoxication if you wrote: “On his way out the door, Smith staggered against a serving table, knocking a bowl of guacamole dip to the floor and splattering guacamole on the white shag carpet.”Figures of Speech
Figures of speech are designed primarily to add drama and emphasis to a discussion. They do so by using familiar words in an unfamiliar way, often injecting eloquence into an otherwise mundane sentence. Consider, for example, two figures of speech traceable to classical rhetoric: “isocolon” and “antithesis.” Isocolon denotes a sequence of clauses of identical length, and antithesis is a method of contrasting ideas through the use of opposites. Both techniques are evident in the following sentence:
The patent system rewards those who can and do, not those who can but don’t. The clauses “those who can and do” and “those who can but don’t” illustrate isocolon because they are of identical length. They also illustrate antithesis because they present direct contrasts by juxtaposing a word and its opposite twice in quick succession. The rhythm of the two matching clauses and the juxtapositions of opposites make the sentence above easier to remember than if it merely stated that “the patent system rewards action.”Word Choice
Word choice is another feature of classical rhetoric that can enhance the power of legal documents. Teachers of classical rhetoric taught their students to maximize the persuasive effect of words by presenting items and actions in groups of three. This device is known as “tricolon.” Julius Caesar must have been paying attention because he was careful to summarize his military campaign in Gaul by stating: “I came, I saw, I conquered.” Other noteworthy examples are the New Testament’s reference to “faith, hope, and love”; the promise of “liberty, equality, and fraternity” in the French Constitution; and the aspirations of “peace, order, and good government” in the Canadian Constitution. The most famous American example of tricolon is probably the Declaration of Independence’s reference to “life, liberty, and the pursuit of happiness,” to which goals the drafters, in another bow to classical rhetoric, pledged “our lives, our fortunes, and our sacred honor.” The latter phrase is especially rhythmic, hence easy to remember, because it not only identifies three separate concepts, but also proceeds from a one-syllable word (lives) to a two-syllable word (fortunes), to two words with two syllables each (sacred honor).
Other examples of word choice derived from classical rhetoric are similes and metaphors. Despite being rhetorical cousins, they differ in that similes make explicit comparisons, whereas metaphors make implicit comparisons. Moreover, even when a simile makes a figurative comparison between two things that are not literally alike (e.g., a sprinter leaving the starting blocks and the proverbial “bat out of hell”), it uses an explicit word of comparison, usually “like.”
I am reminded of funny similes I have heard. A South Dakota farmer once told me that during hard times, one has to “hunker down like a jackrabbit in a hailstorm.” Years later, another man educated me to a wonderful West Virginia simile, which describes a politician who is “as slick as goose poop on a hoe handle.” Somehow, I doubt Aristotle ever heard either of those.
Similes can work as well in legal writing as they do in conversations over the back fence. For example, in Jesperson v. Harrah’s, the plaintiff employee sued her former employer, a casino, after she was terminated for refusing to wear makeup on the job, contrary to the employer’s grooming code. An amicus curiae brief for the employer defended the grooming rules, arguing that standards were necessary lest the employer have “employees who sport jewelry like Mr. T., wear makeup like Gene Simmons of Kiss, dress like Dennis Rodman, have hair like Fabio or [have] beards like a member of ZZ Top.”
A more restrained, but still vivid example of a simile appears in a concurring opinion by Justice Robert H. Jackson, whose name almost always appears on lists of the Court’s all time best writers. In Edwards v. California, the Court reversed a man’s conviction for transporting his brother-in-law, who was indigent, to California in violation of state law. Justice Jackson concurred, reasoning that because the indigent man was obligated, as a citizen, to defend the United States, he had a concomitant right to migrate wherever he wished in this country. Jackson then added,
Unless this Court is willing to say that citizenship of the United States means at least this much to the citizen, then our heritage of constitutional privileges and immunities is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.
Metaphors are more versatile and variable than similes because they can take different grammatical forms; they can be complete sentences or even complete paragraphs, yet they can also be phrases, clauses, or individual words. Writers can use metaphors to express logos, pathos, or ethos. Metaphors serve the logos function by providing readers with symbolic analogies that can magnify, hence clarify, a writer’s substantive point. They serve the pathos function, too, either by invoking an emotional reaction the writer sought or simply by being pleasing to the ear, thereby heightening the reader’s interest and attention. They even serve the ethos function by elevating the reader’s estimation of the writer’s intelligence and credibility.
Justices Jackson and Holmes were the grandmasters of metaphor among Supreme Court justices. Many of Jackson’s metaphors startle at first, but then enlighten as the reader acclimates to the appearance of evocative words in unfamiliar settings. For example, Jackson wrote, in various opinions, that the practice of expelling aliens after long residence in this country “bristles with severities” and that the due process clause is “cryptic and vagrant.” In other Jackson opinions, an inadequate court record “shows us something of the strings as well as the marionettes” and the invalidation of an ordinance regulating speech may “convert the constitutional Bill of Rights into a suicide pact.”
No more powerful metaphor has ever illuminated a judicial opinion than that of “free trade in ideas” penned by Justice Holmes in his dissent in Abrams v. United States. A Holmes biographer, Max Lerner, described Holmes’s Abrams dissent as “the greatest utterance on intellectual freedom by an American, ranking in the English tongue with Milton and Mill.” The language on which this testimonial focuses is in the final paragraph of the dissent, which begins as follows:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.Rhythm
Holmes, like Jackson, had a remarkable ear for the rhythm of language, which is why the opinions of both men sang as much as they spoke. Holmes and Jackson are famous for aphorisms: short, pithy phrases or sentences that encapsulate the thesis of an entire opinion. Holmes wrote that “taxes are what we pay for civilized society” and that “great cases like hard cases make bad law.” He also wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic.” Of course, Holmes’s sense of rhetorical rhythm also prompted him to defend forced sterilizations of the intellectually impaired by proclaiming that “three generations of imbeciles are enough.” The latter example reminds us that rhetoric can serve both dubious and desirable public policy goals.
Jackson’s aphorisms used a rhetorical technique known as “inversion,” which transforms a direct statement into a complex proposition or even a paradox, which the aphorism then solves. In one example, he observed, “It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.” In another, referring to the Supreme Court as an institution, he noted, “We are not final because we are infallible, but we are infallible only because we are final.”
A fine, flowing rhythm is also evident in the following passage from Justice William Brennan’s majority opinion in New York Times v. Sullivan, which broadened press freedom by raising the bar a public figure must clear to establish defamation. It illustrates what Judge Ruggero Aldisert has called Brennan’s capacity for expressing “the perfect blend of sobriety and emotiveness … ”
Thus, we consider this case against the background of a national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
The rhythm in Justice Brennan’s language derives from its use of tricolon, the ordering of concepts in groups of three discussed earlier. Note, for example, his emphasis on the principle that public debate should be “uninhibited, robust, and wideopen,” even though one result might be “vehement, caustic, and sometimes unpleasantly sharp attacks” on government and its officials. The double dose of tricolon makes this sentence roll easily off the tongue when read aloud, reflecting its author’s careful attention to rhythm.Literary Allusion
Space remains to discuss one last rhetorical tool evident in elegant opinions: literary allusion. References to literature in judicial opinions, like metaphors and similes, derive their power from surprise; therefore, if used frequently, they lose their novelty, like the oft-repeated punch line of an outdated joke. Robert Jackson’s uncanny ear for language helped him to use literary allusions to underscore the strength of his substantive points. For example, in rejecting the Court majority’s explanation for upholding an administrative decision that had been previously disapproved, he wrote in frustration, “I give up. Now I realize fully what Mark Twain meant when he said, ‘The more you explain it, the more I don’t understand it.’” Regarding the Court’s endorsement of the separation of church and state, yet its approval of public support for transportation to parochial schools, Jackson observed, “The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, ‘whispering, “I will ne’er consent,” consented.’”
The caution that “irresistibly” comes to my mind regarding literary allusions is that they are only effective when they are familiar. Therefore, avoid annoying the judge in your case by inserting in a motion or brief an obscure literary reference the judge is unlikely to recognize.Conclusion
Good editing will leave no trace of its presence, just prose that flows naturally, occasionally flashing a gleam of elegance along the way.
The rhetorical techniques presented here may well elude you when writing a first draft, but try to incorporate them into your editing process. Recall the earlier examples. If you are prosecuting a DWI case, edit your prose to paint a verbal picture of the defendant’s clumsy exit from the party, which caused a gooey river of guacamole to ooze its way through the pristine pile of the host’s white shag carpet. In a patent case, do not settle for your first draft’s statement that “the patent system rewards those who can and do” when you can add the rhythm provided by isocolon and antithesis, resulting in: “The patent system rewards those who can and do, not those who can but don’t.” When revising, use tricolon whenever three nouns or adjectives are appropriate and available. “Life, liberty, and the pursuit of happiness” is easier to recall than just the first two. And be alert to an opening for a metaphor, a simile, or both. Perhaps, in a criminal case, you can say that the codefendant was a perverse puppeteer who manipulated your client like a marionette in a misguided puppet show.
Remember, though, that elegance is not an end in itself; it must serve the overarching goal of persuasion, so sprinkle, don’t pour, rhetorical devices on your writing. And take to heart the words of painter James McNeill Whistler, who said, “A picture is finished when all trace of the means used to bring about the end has disappeared.” The same is true for your legal writing; good editing will leave no trace of its presence, just prose that flows naturally, occasionally flashing a gleam of elegance along the way.
J.J. McCullough, a Canadian political cartoonist has put together a collection of judges’ costumes from around the world. It’s pretty amazing to see them all in one place. Here, of course, is the classic UK getup. This is the Lord High Chancellor, who gets the prettiest lace.
Many of the judges’ robes are a variation on black, though many countries add some lace or a medallion. Somewhat surprisingly, many former British colonies kept the wigs and robes. Many former French colonies likewise kept the funny hats. I like the outfits in Pakistan and Malaysia, which have character and dignity, but are definitely not boring.
Then there is the Supreme Court of Canada:
I don’t want to spoil the thing by putting up too many images here. McCullough did the work and you should go see the whole collection at his site.
Edit: Bonus picture, from Slapmesillymusic, the Swedish Supreme Court:
Most of the cases considered by the U.S. Supreme Court come through a “petition for a writ of certiorari.” A writ of certiorari is an order from the Supreme Court directing a lower court to send the record of a proceeding up for review. Basically, when a court of appeals makes a decision that one of the parties thinks is wrong, the party files a petition for a writ of certiorari (or a “cert petition,” for short) to the Supreme Court, asking the Court to review the court of appeals’ decision. If the Supreme Court thinks the decision is worth reviewing, it will grant the petition and put the case on its docket.
So let’s say you’ve been wronged by the court of appeals. How can you get the Supreme Court to right that wrong? Here are three tips — saving the most important for last:1. Don’t Waste Your Time If you want the Supreme Court to take your case, you have to have a case worth taking.
The Supreme Court receives about 10,000 cert petitions each year, and grants only about 75-80 of them—which translates to a success rate of less than one percent. That doesn’t bode well, if you’re hoping the Court will take your case. But don’t despair just yet: this low success rate is skewed by the truckloads of meritless petitions that the Court receives from pro se litigants who don’t know what they’re doing. And the success rate is even further skewed by the many petitions filed by practicing lawyers who likewise don’t really know what they’re doing—because they don’t fully understand how things work at the Supreme Court.
The Supreme Court — unlike the court of appeals — is not in the business of error correction. In other words, the Supreme Court isn’t going to take your case just because a lower court “got it wrong.” The Supreme Court’s job is to resolve questions of significant national importance and to make sure that the law is interpreted and applied consistently throughout the nation. Thus, it isn’t enough for you to complain that the lower court got it wrong.
The most common basis for granting cert is a “circuit split.” This is where the federal appellate courts are in disagreement over how to interpret or apply a particular point of law. If the Third Circuit just handed you a big loss, but it turns out you might have won in another circuit where they’ve decided the same issue differently, then you might have a decent shot at attracting the Supreme Court’s attention. Similarly, a good basis for seeking cert exists where state courts are disagreeing over how to interpret or apply federal law.
If your case doesn’t involve an issue or scenario that will give the Supreme Court good reason to take notice, don’t waste your time and money filing a cert petition. (The Supreme Court still requires briefs to be filed in hard copy, so the printing, copying, and filing costs alone will be somewhere around $3,000 — and that’s not counting the required appendix, or the time it takes to actually write the petition itself.) In other words, if your cert petition isn’t cert-worthy, your chances of getting it granted really are less than one percent.
So the tip here is to spend some time figuring out whether your case is cert-worthy. Most cases aren’t — but if the case is important to you (or your client), it’s worth investigating. And it’s a lot cheaper to figure out up front whether you’ve got a cert-worthy case, than to simply press forward with drafting and filing a cert petition that has no chance at being granted.
If you’re not sure how to figure out whether your case is cert-worthy, talk to an appellate attorney who has some Supreme Court experience. And start looking into it before the court of appeals has issued its decision.2. Don’t Get Ahead of Yourself
For now, forget about why you should win. Instead, focus on why the Court should take your case.
After you lose at the court of appeals, the natural inclination will be to tell the Supreme Court why you should have won. But an appeal to the Supreme Court is a two-stage process, and the cert petition is just the first stage. If your cert petition focuses on why you should have won, you’re getting ahead of yourself — and you’re probably going to kill your chance at getting the Court to take your case. Don’t worry: if the Court does take your case, both parties will file briefs on the merits. That’s when you’ll explain why you should win. But in your cert petition, you need to focus on telling the Court why it should take your case in the first place.
In other words, the cert petition is where you explain why your case is cert-worthy (see Tip #1). This is much different from telling the Court why you should win, so it requires a much different approach. For starters, you need to think a lot less about your particular case and a lot more about the bigger picture involving lots of other courts and cases. In the lower courts, it’s usually hyperbolic (and frowned upon) to claim the issue at hand is one of national importance. But in your cert petition to the Supreme Court, you really do need to explain — convincingly — why the issue at hand is one of national importance. Don’t be afraid to make policy arguments, and to talk about not only what has happened in prior cases but also what might happen in future cases, if the Court doesn’t resolve the issue at hand.
In short, don’t worry (yet) about telling the Court how it should rule; instead, tell the Court why it should rule. Save the bit about winning for later.3. Focus on Framing the Issue
To paraphrase Sun Tzu: “Those skilled in war bring the enemy to the battlefield of their choosing.”
Perhaps the most important component of your appeal to the Supreme Court is the “question presented.” It appears on the first page of your cert petition, and it will (or should) guide everything that follows. Indeed, if you frame your question effectively, it will guide the Court’s decision — hopefully in your favor.
Ideally, you’ll have just one question to present to the Court. If you have more than one, they should be closely related. If you have multiple questions that aren’t closely related, your case might look too complicated and messy — and the Court will be inclined to wait for a case that provides a cleaner “vehicle” for addressing whichever issue it might have been interested in. Usually you can weed out multiple issues when you’re researching the cert-worthiness of your case, because you’ll need to determine the cert-worthiness of each issue — and few cases have more than one cert-worthy issue. (See Tip #1.) Once you’ve figured out what your issue is, it is crucial that you frame it to your advantage.
Issues are framed as questions for the Court to answer — but often they’re presented as statements. (Yes, that’s what I said: a question in the form of a statement.) For example, the question presented might look something like this:
Whether a court errs by vacating an agency’s decision and remanding for further administrative proceedings, when further administrative proceedings will have no effect on the agency’s decision and will serve no other substantive purpose.
This question has been framed (i.e., phrased) in a way that nudges the reader toward a particular answer. (“Well, of course it seems like error for a court to vacate and remand for further proceedings, if further proceedings are pointless!”) This nudging-through-phrasing is part of what we’re talking about when we talk about “framing” the issue.
But framing the issue is much more than mere phrasing. Framing the issue is about choosing your battlefield. How you frame your issue will have a lot to do with whether you win or lose your appeal.
A good example can be found in the Hobby Lobby case decided by the Supreme Court last term. The central issue in that case was whether a provision in the Affordable Care Act (ACA), which required employers to provide employees with health coverage for contraception, infringed on Hobby Lobby’s rights under the Religious Freedom Restoration Act (RFRA), which prohibits Congress from enacting a law that burdens a person’s exercise of their religion. Hobby Lobby is a for-profit corporation—but it is owned by some religious folks who objected, on religious grounds, to providing access to certain contraceptives. The attorneys for Hobby Lobby framed the question presented so that the focus was on whether Hobby Lobby qualified as a “person” under RFRA—because if Hobby Lobby qualified as a “person” under RFRA, then it was protected under RFRA, and the ACA’s provision should be ruled unenforceable.
With the issue framed this way, the outcome was practically foreordained. RFRA’s statutory definition of “person” includes corporations — so of course Hobby Lobby qualifies as a “person” under RFRA. And sure enough, based in part on this reasoning, the Supreme Court’s majority decided the case in Hobby Lobby’s favor.
But as Justice Ginsburg pointed out in her dissent, the Court was answering the wrong question. The real question, according to Ginsburg and the dissenters, was whether a corporation like Hobby Lobby could “exercise” religion — because if a corporation can’t exercise religion, then the ACA’s coverage requirement can’t be a burden to Hobby Lobby’s religious exercise. Framed this way, the dissenters all agreed that corporations can’t exercise religion — so of course the ACA provision did not violate RFRA.
See what I mean about choosing your battlefield? This is a great illustration of how important it is to frame your issue effectively — to strategically point the Court toward the precise question you want it to answer. Ideally, this framing should begin while you’re still in the district court, or by the time you’ve reached the court of appeals. But at the very latest, it must occur on that first page of your petition for a writ of certiorari.
Devote the lion’s share of your time to framing your issue — searching and researching, thinking and rethinking, writing and rewriting — to get it just right. And this should be part of the process for determining cert-worthiness (Tip #1) — because cert-worthiness itself might be determined by how you frame the issue. These two things, framing the issue and determining cert-worthiness, are a big part of what Supreme Court practice is all about.
Featured image (modified): “Petition For Divorce” from Shutterstock.
TranscriptPad, like TrialPad, is the benchmark in iPad apps for litigators. I transitioned to a paperless office over 5 years ago, but one of the nagging complaints I had was the lack of a good paperless option for summarizing and annotating depositions. TranscriptPad fills that bill. It allows you to:
All this costs just $89.99, a fraction of the cost for comparable PC-based applications. (I know, I know. You’re used to paying $4.99 for applications for your iPad. Well this isn’t a game you play to waste time; it is an application you’ll rely on to get real work done.)
If you are handling depositions, you should get TranscriptPad. (And by the way, if you are trying cases without TrialPad, it just may be malpractice.)
At the end of a recent talk by Jack Newton, CEO of Clio, a bombshell:
[F]rom the back of the room, an attendee stood up and stated (roughly, to paraphrase): “I am Jan Lindsay, President of the Law Society of BC. This is black and white: BC lawyers are prohibited from using non-BC-based cloud computing providers, including Google and Dropbox.”
If you could only use cloud providers from your state or province, that would effectively eliminate the cloud as a computing option. It has to be a misstatement. No other North American bar association has gone so far; most are moving in the opposite direction and enabling lawyers to use the cloud. If Lindsay’s statement is true, it is a major technological step backwards for BC lawyers, and an especially big disadvantage for solos and small firms.
Update: David Bilinsky has tried to clarify the rules for BC lawyers. Unfortunately, I think it’s the LSBC president who needs to weigh in and explain to BC lawyers how she came to her conclusion that “BC lawyers are prohibited from using non-BC-based cloud computing providers.”
Update 2: LSBC president Jan Lindsay just published a statement:
I don’t believe I said that non-BC cloud computing services were not permitted, but if I did I was wrong.
Well that settles it. Lindsay refers lawyers who want to know more about their cloud-computing obligations in BC to Bilinsky’s post.
Law professor and prolific blogger Jonathan Turley has “agreed to represent the United States House of Representatives in its challenge of unilateral, unconstitutional actions taken by the Obama Administration with respect to implementation of the Affordable Care Act (ACA).”
As Ken White put it:
"Wow. Just Wow" is overused, but … Wow. Just Wow. http://t.co/HDjvffezfF
— Popehat (@Popehat) November 18, 2014
From Bitter Lawyer:
The deposition transcript shows that a half hour into the deposition, defense counsel asked Ryan’s client, the plaintiff, about an interrogatory answer. After the plaintiff struggled for more than one minute to answer defense counsel’s question, the following exchange between the attorneys took place:
[Defense counsel]: I would like the record to reflect Mr. Ryan is writing notes to his client while she is answering a question. If he wishes to prove that’s not true rather than going on a rampage, he can turn back over the notepad that he just turned over, and he can show us all what he wrote on it. But I will, again, be bringing up to the court that he was writing on a notepad. And when I looked at him, he turned it over.
Featured image: “Students passing notes in class” from Shutterstock.
As a general rule, you should not CC your clients on emails.
First, because it gives every other recipient a chance to communicate directly with your client. In fact, it looks like an invitation to do so. Opposing counsel should know better, but even they might use Reply All accidentally, accidentally-on-purpose, or maybe even intending — albeit misguidedly — to be helpful.
In the case of recipients who are not bound by the rules of professional responsibility, you can hardly be surprised if they take the inclusion of your client’s email address as an invitation to keep them in the conversation or communicate with them directly. And remember that the recipient might forward your email, giving anyone not already included the chance to do so. This could be harmless if your email is related to a friendly business transaction. It could also be disastrous.
Don’t forget that clients can make mistakes, too. Even if you BCC your client to avoid the above problems, it could be your client who uses Reply All.
Second, part of your job is to counsel your client, which is difficult to do without providing at least a sentence or two of summary or context or explanation. If all you do is CC your client on every email (or forward every email with little more than “FYI”), you are missing a chance to do your job.
The better practice is usually to wait until the end of the discussion (or at least a decision point), so you can bring your client up to speed with a brief summary, some context, your analysis, the options you need to discuss, etc. Go ahead and include all the back-and-forth if you like, but don’t just hand it off. It is safe to assume given the fact of your representation that your client wants you to use your legal accumen to help them understand what is going on.
So don’t CC your client. There are certainly some exceptions to this “rule,” or times when it doesn’t really matter. But at a minimum you should think twice before adding your client to the CC or BCC field of an email you are about to send.
Featured image: “email symbol, at sign, grey background” from Shutterstock.
Jacob Berlove, 30, of Queens, is the best human Supreme Court predictor in the world. Actually, forget the qualifier. He’s the best Supreme Court predictor in the world.
But you could use this decision tree (there’s one for each justice) if you prefer:
[S]ome subscribers’ passwords had been compromised and used to access the database. The types of information involved included addresses, date of birth, and in some cases, driver’s license numbers and Social Security numbers.
Although no bank account or credit card information was involved, whoever scraped the Westlaw database now has all the information they need to open some bank accounts and sign up for some credit cards.
Fortunately, it looks like the breach could be fairly small. According to the report Westlaw made to the New Hampshire Attorney General, just nine New Hampshire residents’ information was involved, and they will receive two years of free credit monitoring. The New Hampshire report did not contain the number of people affected nationally.
It is easy to overlook what defines a good deposition question.
This topic isn’t merely for beginners. Even if you walk into a deposition with a solid plan, your plan can quickly change question by question. It’s at this micro-level — the way you ask each individual question — where many deposition errors are made.
To understand how bad questions can ruin your depositions, consider the anatomy of a good deposition question.The Good Deposition Question Is Simple
There are many benefits to simple questions. Simple questions, which are usually short, are easy to comprehend by the witness, by others who read the deposition, and by a jury if you use the exchange for impeachment at trial. Simple questions are also more difficult for the witness to evade and move the deposition along.
Simple does not mean your deposition question deals with a single fact. At a deposition, you often want to ask open-ended questions that call for the witness to answer expansively, touching on multiple facts such as “what happened next?”
Your questions should also be simple grammatically. If your questions are short, they are probably simple enough. Longer questions that contain numerous clauses will make it difficult to communicate with the witness or to use the transcript in a motion or at trial.
There are exceptions to the general rule of simplicity. In a document-intensive deposition, your questions might expand in length to incorporate quotes from documents. When deposing doctors or other experts, your questions might become more complex as you ask questions about technical topics.
Generally, however, complex cases do not call for complex questions. You could even argue that topics of greater complexity call for questions of greater simplicity. After all, if you use the deposition later in a motion or at trial, you will want the deposition to be simple enough so that both judge and jury can understand.The Good Deposition Question Stands Alone
Reviewing the transcript later, you should not have to turn pages to figure out the topic of inquiry or the meaning of the question and its answer. If so, the deposition will be less useful for impeachment and other purposes. Use these two rules to make your transcript easy to follow after the deposition.
You, not the witness, should be in control at a deposition. Ask open-ended questions when you want to encourage the witness to cover a lot of ground that you can explore later. (If the witness was well-prepared for the deposition, ask several open-ended questions in a row — “And then what happened?” — to get over the witness’s reluctance to volunteer.) Ask leading questions to pin the witness down, then ask sweeping-up questions to box the witness in. (“Is there anything else you remember about the meeting of August 8?”) If the witness doesn’t answer your question the first time, ask the same question again.The Good Deposition Question Withstands Form Objections
This is corollary to much of what has come before. A good deposition question will not be subject to a valid form objection. That means your question isn’t vague, isn’t compound, and isn’t argumentative. A good deposition question is precise, is grammatically correct, and isn’t susceptible to multiple meanings. The good deposition question does not contain excessive negatives. Example:
Wrong: “Unless I’m not understanding you correctly, you don’t agree with me that you didn’t give notice before December 23?”
Right: “It’s your testimony that you gave notice before December 23, correct?”
As simple as these tips might sound, they are often violated, especially in the heat of a deposition when lawyers are trying to juggle multiple lines of questioning. Depositions are often fraught with tension, and when they are, it becomes more difficult to ask good questions.
If asking good questions becomes a habit, on the other hand, you will reap the benefits immediately. The witness will answer the precise question you asked, rather than a question the witness is pretending you might have asked. Your depositions are likely to be shorter and more effective. Your skilled questioning technique — asking clear, concise, and useful questions on the fly — will put opposing counsel on immediate notice they are not dealing with a novice. As a result, opposing counsel will be less tempted to obstruct your deposition with invalid objections and time-wasting bluster.
Featured image: “Businessman holding a paper with question marks on his head“
Not a joke. That’s the real caption →
And it’s not the only one. Kevin Underhill found various lawsuits captioned with various things, including this gem:
United States v. Various Works of Art Owned by Randy
That’s a more typical caption, obviously, and several orders of magnitude more specific even considering all the people named Randy in the U.S. There is more good stuff on Lowering the Bar, and you should definitely go read the rest of Kevin’s post.