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Monthly Archives: November 2013

Court of Appeals Names Nancy Vaidik as Next Chief Judge

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Vaidik_NancyRe-posted by NITA from The Indiana Lawyer.

The Indiana Court of Appeals of Indiana has selected Judge Nancy H. Vaidik to succeed Judge Margret G. Robb as the court’s next chief judge. Vaidik’s three-year term of office will start January 1, 2014.

Vaidik was appointed to the Court of Appeals in February 2000 and was retained by election in 2002 and 2012. She will be just the second woman to serve the court as chief judge, following Robb.

Vaidik is a native of Portage and lives in Valparaiso. She has broad experience in both trial and appellate courts and in legal classrooms. As an attorney, she tried more than 75 jury trials and currently serves as national program director for the National Institute for Trial Advocacy. She was judge of Porter Superior Court from 1992 to 2000 and before that worked as a deputy and chief deputy prosecutor in Porter County. She also founded the Porter County Victims Assistance Unit, the Porter County Sexual Assault Recovery Project, and the Valparaiso University Law School Mediation Clinic. Vaidik graduated from Valparaiso University and Valparaiso University Law School.

“I’m honored by the court’s selection and proud of its work,” Vaidik said. “I’m also proud of my home region of Northwest Indiana and look forward to serving the entire state and our court as chief judge.”

By law, the fifteen-member Court of Appeals elects a chief judge every three years. The chief judge represents the court at public and private events and ceremonies and serves as the court’s liaison to the legislative and executive branches.

Legal Writing Part 1: Focus Your Feedback

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written by guest blogger, David Thomson LP Professor, Sturm College of Law at University of Denver

I often hear from senior attorneys that the writing of their junior staff attorneys is less than what they would hope for. They find they have to spend a great deal of time reviewing their work, and feel that this is not a good use of their time. From junior attorneys, I often hear that they receive their written work back from their senior attorneys “bleeding red ink.” This form of feedback makes them unsure of what to do other than become a secretary and make the changes noted, and resubmit the work. This “feedback divide” is not productive for either attorney.

Many senior lawyers think that the best and most efficient feedback they can give on another’s writing is a total rewrite, with everything that needs improvement marked on every document. But in most cases, that is not true. Emerging legal writers need guidance, not a full rewrite. It is best to just select a few most important things that need improvement and focus your comments on those. There are several good things that will happen when you do that.

First, the emerging writer will not be overwhelmed with your comments. The “bleeding ink” form of feedback is overwhelming, difficult to fully comprehend, and demotivating to the emerging writer. Second, if you focus on just a few key problems, the writer can focus on those for improvement. When writers do that, they generally improve. The best way to focus is to comment once on the problem in the memo or brief, and explain that you expect the junior attorney to find all other instances of that problem in the document and fix those as well. That will make the writer work on her writing, rather than merely play secretary. Third, the focused approach will force the writer to read through the entire document numerous times, where she will undoubtedly find and fix other problems she discovers on her own. This will strengthen writers’ development, and ultimately their writing skills as well.

Another benefit of focusing your comments is that it will build confidence in your junior attorney, rather than break it down.  If writers feel they are learning and improving, that increases their confidence. If they feel they were able to identify additional problems on their own and improve those as well, that will also increase their confidence.

For many, it might seem too difficult to identify “just a few” key problems in a document. Often, the reason given for extensive commenting is that there are multiple problems, and it’s “just easier” to comment on everything that’s wrong.  But with practice, it is actually easier to identify the key problems and meet with the junior attorney to discuss them.  Here is a suggested method to identify the problems you want to focus on:  First, read the draft document, putting sticky notes on the pages where you see the most significant problems. Second, flip through and rank them, by importance, with numbers on the notes. Third, think about which are the most important for this junior attorney to work on in the next draft. Finally, focus your written comments on those issues and remove the sticky notes as you go.

One downside, of course, is that the document might take several drafts to complete, which brings up the issue of time and deadlines. Setting early deadlines for drafts will help, so there is built-in time for this developmental, iterative, writing process.

Perhaps the best reason to focus your feedback in this way is that, generally, the final product will be better. Rarely are we able to find and improve all the problems in a piece of legal writing on the first run-through. And fixing some problems can create new problems in other parts of the document. The iterative approach is almost always the better one for the ultimate quality of the final document, the development of your junior attorney, and your own sanity.

Best Advocacy Fix: Depositions and Stipulations

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Hoffman_Peterwritten by guest blogger Peter Toll Hoffman
Professor of Law & Director of Skills Programs
Elon University Law School
Program Director, Houston Deposition Program
Co-Author, The Effective Deposition: Strategies and Techniques that Work

Under the Federal Rules of Civil Procedure, parties have wide latitude to stipulate to changes to the procedures governing the taking and using of depositions.1 There is, however, one important caveat: any stipulation extending the time for any form of discovery must have court approval if it would interfere with the deadlines set for completing discovery, for hearing motions, or for trial.

The parties can be as creative as they choose in devising agreements governing the taking and using of depositions. As suggested by Rule 29, some of the more common stipulations concern:

  • The scheduling of depositions;2
  • The location of depositions;3
  • The sequence for depositions and discovery;4
  • The notice given for taking depositions;5
  • The order of questioning;6
  • Producing witnesses or documents without requiring a subpoena;7
  • Increasing or decreasing the number of depositions permitted;8
  • Reopening a deposition or permitting the witness to be deposed a second time;9
  • Permitting depositions to be taken before the Rule 26(f) conference;10
  • The method for recording depositions;11
  • Taking depositions outside of the country;12
  • Waiving the making of certain objections such as to the qualification of the officer,13 defects in notices of deposition,14 or extending a deposition beyond the one day of seven-hours limits;15
  • Shortening or lengthening the number of days notice required for depositions;16
  • The manner of taking depositions;17
  • Who may be present during depositions;18
  • The scope of depositions, including extending the scope to the subject matter of the action;19
  • The marking of exhibits;20
  • The waiving of local rules;
  • Defects in the oath or affirmation;21
  • Reserving objections that would otherwise have to be made during the deposition, including—
    • To the form of questions or answers;22
    • To the manner in which depositions are conducted;23 and
    • Other objections that could be cured if made during the deposition;24
  • Agreements about how to assert privilege and work-product claims;25
  • The effect of instructions not to answer;26
  • How exhibits will be handled during depositions;27
  • The deposition officer’s transcribing or preparing, signing, certifying, sealing, endorsing, sending, or otherwise dealing with depositions;28
  • How exhibits will be preserved;29
  • The entry of protective orders covering the confidentiality of all or part of the depositions or concerning depositions, e.g., the sealing of deposition transcripts;30
  • The time and manner of reading, correcting, or signing depositions;31
  • Waiving notice of filing depositions;32
  • Using depositions at trials or other hearings.33

 

Any stipulation may cover a single deposition or all the depositions in the case.

A note of caution. In many areas of the country, the custom is for the parties to enter into what is called “the usual stipulations.” There is no judicial definition defining what this phrase means and very few decisions explaining the stipulation. And it is rare for the parties to discuss what they mean by the phrase before they agree to it. Instead, the common practice is for the parties to agree to the usual stipulations with no thought being given to what is actually being agreed upon. As noted by one court, “Everyone purports to know without asking the content of the ‘usual stipulations’ until a dispute arises; the ephemeral nature of the parties’ understanding is quite apparent.”34

There are exceptions. In some areas of the country, the court reporter may pass around a list of stipulations, often called the “usual stipulations,” and ask the parties if they agree to them. But this is a rarity, rather than the rule.

Despite the absence of a precise definition, the usual stipulations are typically understood to mean something like “reserving all objections” or “reserving all objections except as to form and foundation” or “reserving all objections except as to form.”

Several problems exist when agreeing to the “usual stipulations.” First, neophyte lawyers are usually loath to reveal their ignorance of what is meant by the phrase and, in an effort to appear to be experienced deposition takers, will agree to the usual stipulations without understanding what it is they are agreeing to. This is a mistake. If in doubt, the routine response to an offer of the usual stipulations should be to ask “What do you mean by the usual stipulations?” Surprisingly, many experienced lawyers do not know how to answer this question. But an even safer response is simply to say, “Let’s follow the Rules.”

A second reason for refusing to agree to the usual stipulations is that it is rarely in the taking attorney’s interest to do so. That is why the stipulation is almost always offered by the defender. The rules concerning objections generally protect the taker. If there is a problem with a question or answer, the defender must object during the deposition so that the taker can correct the problem while the witness is still present.

Imagine the following scenario. A key witness’s deposition is taken subject to the usual stipulations. The taker obtains several damaging admissions. Feeling fully armed for cross-examination, the taker shows up for trial only to find that the witness is in the hospital or otherwise unavailable. Vaguely remembering from law school that a deposition may be used in lieu of live testimony if the witness is unavailable,35 the taking lawyer offers the absent witness’s deposition testimony. The defending lawyer says, “You Honor, at the deposition we agreed to reserve all objections except as to form and foundation. I now have several objections to make before the deposition is read to the jury.” Now, having had several months to think about objections that otherwise would have been made at the deposition, the defending lawyer has come up with several brilliant objections that bar the admissions the taking lawyer wants to have read to the jury. The result is that the admissions obtained at the deposition are now useless. And all of this could have been avoided if the taking attorney had not agreed to the usual stipulations.

Objections to form and foundation comprise 90 percent of all curable objections that must be made at the deposition or are waived. There are, however, other curable objections that do not go to form and foundation that will be reserved by the usual stipulations. In short, it is rarely in the taking attorney’s interest to agree to any curtailment of the requirement that all curable objections must be made at the deposition or are waived.

Another matter that is frequently the subject of a stipulation is the reading, correcting, and signing of the deposition.36 The Federal Rules have been amended to require that a party or the witness request reading and correcting before the deposition is concluded or the right to do so is waived. Many state systems, however, still follow an older version of the Federal Rules that automatically gave a right to read, correct, and sign the deposition unless the right was waived by the parties and the witness. Under these state systems, the parties usually wait to the end of the deposition to see how the questioning has gone before deciding whether to waive the reading, correcting, and signing of the deposition. But again, ask if such a stipulation is in either party’s interest.

It is usually not in the defending attorney’s interest to waive the reading, correcting, or signing of the deposition because mistakes may have occurred that have gone unnoticed by the defending attorney or the witness. Court reporters also make mistakes that will go undetected until the deposition transcript is read. For these reasons, the defending attorney usually should not waive the reading, correcting, and signing of the deposition (and under the Federal Rules should timely request reading and correcting).

It is usually also not in the interest of the taking attorney to waive reading, correcting, and signing because these steps may make more effective any later impeachment of the witness with the witness’s deposition:37

  • You had your deposition taken?
  • You were under oath?
  • You had a chance to read your deposition after it was taken?
  • And to make corrections to any mistakes in your answers?
  • You did not make any corrections?
  • And you signed the deposition?

 

In sum, while stipulations can be productive and promote economy and efficiency in taking and defending depositions, they can do otherwise, too. The prudent course is never stipulate to anything that you do not understand or that is not in your client’s interest. When in doubt, the safest response to an offer to agree to the usual stipulations is to decline and say, “Let’s follow the Rules.”

Footnotes
F.R.Civ.P. 29 states:
“Unless the court orders otherwise, the parties may stipulate that
  1. deposition may be taken before any person, at any time or place, on any notice, and in the manner specified in which event it may be used in the same way as a any other deposition; and
  2. other procedures governing or limiting discovery be modified but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.”
F.R.Civ.P. 30(b)(5)(C) adds: “At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.”
F.R.Civ.P. 30(a)(1).
F.R.Civ.P. 30(b)(1).
F.R.Civ.P. 26(d)(2).
F.R.Civ.P. 30(b)(1).
F.R.Civ.P. 30(c)(1).
F.R.Civ.P. 26(a)(1), 30(b)(2) & 45.
F.R.Civ.P. 30(a)(2)(i).
F.R.Civ.P. 30(a)(2)(ii).
10 F.R.Civ.P. 26(d)(1).
11 F.R.Civ.P. 30(b)(3) & (4) & 30(c)(1).
12 F.R.Civ.P. 28(b).
13 F.R.Civ.P. 30(a) & 32(d)(2).
14 F.R.Civ.P. 32(d)(1).
15 F.R.Civ.P. 30(c)(2) & 30(d)(1).
16 F.R.Civ.P. 32(a)(5).
17 F.R.Civ.P. 30.
18 F.R.Civ.P. 26(c)(1)(E) & 30(c)(1).
19 F.R.Civ.P. 26(b).
20 F.R.Civ.P. 30(f)(2).
21 F.R.Civ.P. 30(c)(2).
22 F.R.Civ.P. 32(d)(3)(B).
23 Id.
24 F.R.Civ.P. 32(d)(3)(B).
25 F.R.Civ.P. 16((b)(3)((B)(iv).
26 F.R.Civ.P. 30(c)(2).
27 F.R.Civ.P. 30(f)(2).
28 F.R.Civ.P. 32(d)(4).
29 F.R.Civ.P. 30(f)(2).
30 F.R.Civ.P. 26(c).
31 F.R.Civ.P. 30(e).
32 F.R.Civ.P. 30(f)(4).
33 F.R.Civ.P. 32(a).
34 U.S. v. Liquid Sugars, Inc., 158 F.R.D. 466, 473 (E.D. Cal. 1994).
35 See F.R.Civ.P. 32(a)(4).
36 F.R.Civ.P. 30(e).
37 See F.R.Civ.P. 32(a)(2).

NITA’s In Edinburgh: Recap From Our Scotland Teacher Training Program

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written by guest blogger Christina Habas, NITA Faculty member and regular programs teacher.

On a misty Thursday in September, 21 lawyers based in Edinburgh, Scotland, got together to improve their skills with expert witnesses. Joining them were four experienced NITA faculty, and several newly minted NITA teachers, who had just completed a teacher training program. What made this program special was that these lawyers were “solicitors with rights of audience,” a rather charming way of saying that they were the rare lawyers in Scotland who performed the work of a solicitor but who also could appear in various courts as trial counsel.

It seems that many times, witness information is presented to the court in the form of a written statement. The court, one hopes, reviews the statement but does not actually have the pleasure of watching, listening and considering the witness through live testimony. Not so with expert witnesses, and the Law Society of Scotland realized that there was a real need for their members to gain the skills needed to present expert witness testimony that only NITA learning-by-doing could help.

The Scottish lawyers attending teacher training were headed by Tom Marshall (pictured here, at far left), the current president of the Law Society and a partner with Thompsons, perhaps the largest plaintiff’s personal injury firm in Scotland. NITA faculty included the Honorable Bob McGahey, Sandra Johnson, James McCrystal, and Christina Habas, also pictured.

Edinburgh 1

The program used the NITA case file of Flinders v. Mismo Fire, and two real-life forensic fire investigators were flown into the program from Glasgow. All of the advocacy students were able to cross examine real experts. This portion of the program was widely enjoyed.

The improvement in all of the students was obvious — specific attention to narrowly worded questions, with a focus on organization to a specific point was the end result of the training. Now, the Law Society plans monthly training on various topics of interest to these solicitor advocates using the NITA method. Another successful program, and now twenty-one improved advocates — Hurrah!

Edinburgh Picture2

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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