Dear Justice Tongue:
I am a fledgling “trial lawyer” with only a half dozen jury trials. I think I’m getting the hang of things, but one aspect of litigation and trial practice is vexing me. The subject is experts. In my cases we can rarely afford them and I worry that I’m being out-gunned when the better funded side brings on some high-priced professional. With my budget I’ve had to always look for the smoking gun, not the hired gun. Any advice?
Dear Mr. Smoke:
Did you really refer to the vast and increasing throng of academicians, clinicians, and leading lights we call “experts” as “hired guns”? Are you implying that they lack independence and compromise their intellectual integrity and honesty in pursuit of the advocacy of their patrons’ claims? Is it your contention that their testimony is for sale and they understate the principles that, in other cases, they highlight; and highlight principles that in other cases they relegate, all to enhance the trial themes and theories of their handlers? Are you really suggesting that this vaunted role in the trial process is contaminated with the influence of money and that expert testimony is literally “for sale”? Well, let me just say I am aghast. Let me also say that you have a brilliant future in the trial practice because at a tender age, you are very perceptive.
In the ancient days, litigants would bring “compurgators” to the trial process to vouch for them. It was thought that the party bringing the requisite number of “compurgators” would have the day. Progress was made when the practice turned to the actual merits of the claim, you know, what actually happened. The rules were refined and improved such that they generally followed the principles of logic and focused on the reliability of the evidence. In some instances it was recognized that certain individuals, by dint of experience or academic prowess, could aid the judge and/or jury in understanding things beyond the laymen’s ken. On came the paid expert.
Once you pay someone, they are not independent. They are paid. They may try to look independent, they may try to act independent, they may even try to give away little points here and there to seem independent. They are not so. I and my sage colleagues prohibit any reference to these paid witnesses as “independent” for these very reasons. And the more effective these “hired professionals” are perceived to be as witness/advocates, the more coveted is their performance and the greater the financial tribute they demand. Greater financial tribute equals less and less independence. In a sense the use of experts often now devolves into a new kind of “compurgation”, namely that of paid witnesses who, under the guise of presenting “expert” analysis, provide advocacy for their clients.
You are rightly vexed, but all is not lost. It is true that in certain instances you must retain an expert to meet legal requirements. For example, in a medical malpractice case you must have an “expert” to establish the standard of care, the breach of standard of care, and causation. Those instances are relatively rare. Do not be intimidated by the paid witness. In my experience, juries understand that they are anything but independent. To make sure that no one misses the point, spend time both in the deposition and in the trial laying out calmly and systematically, the number of times they have testified for litigants on one side or the other, the amount of money they earn each year being professional witnesses, and the amount they have charged in the instant case to “prepare” their testimony, including the typically enhanced rate for their testimony.
When you cross-examine such professional witnesses, do not play in their ballpark. There are general principles that they must embrace that will be part of your central liability themes. Stay with those basic principles and present those aspects of your case through their mouths. The master trial lawyers appearing in my court have invariably turned the other side’s expert into advocates for critical portions of their case. When they do so they are careful, they are selective, and they are prepared. It is not a game for amateurs nor is it something that you can do if you don’t fully understand the subject matter of the expert’s presentation.
Here is another hint. You may have a talented witness in or affiliated with your client that can be presented as a non-retained expert. Very often, treating physicians or experienced artisans in small businesses have specialized knowledge that qualifies them as non-retained expert witnesses and even though they may not be polished, the jurors are often very receptive to their common touch. Yes, I understand they are not independent. You will be the one to deal with that revelation.
Finally, you should know that some of the most famous, effective advocates err on the side of not hiring paid witnesses after all, many “experts” have to be told what their expertise is, what they know and what they should say. They typically write like challenged third –graders, very often cannot keep straight which side they’re advocating for, and always contradict themselves in some critical phase. At such times they present what the learned men and women of the trial bar refer to as “targets of opportunity”. Be prepared.
Well, my best to you Mr., I’m sorry what was it? Oh yes, Smoke.
By Lincoln Mead, Utah State Bar IT Director
There are a number of great apps out there that can streamline your practice and help you catch a couple of extra billing hours a week. (If you do not have a tablet and are thinking of taking the plunge consider this: If you can find an extra 15 minutes of billable time a week using a tablet it will pay for itself inside of a year.) The iPad has the most robust selection of legal specific apps but Android is coming on strong and now, with Microsoft entering the market, you will see a number of legal software vendors releasing their apps for that platform as well. Below is a small selection of Apps that I consider essential tools for attorneys.
What can make a tablet useful is the ability to tie all the data from all your devices together.
DropBox / SpiderOak: Web based data storage apps have been around for a long while but DropBox set a new standard in ease of use and power. Installing this app on all your phones, PCs, laptops and tablets will not only ensure that you have access to all your synched files but can create a great ‘quickie’ disaster recovery service. Spider Oak touts itself and a completely encrypted version of DropBox for those that want to go the extra mile to lock down data. If you are already using Google another related app to explore would be GDrive.
Evernote: The ultimate ‘capture’ app Evernote allows you to grab content from most applications and off of any device and store it for future recovery from the other devices in your arsenal. The tagging feature not only helps you sort the information but helps the app to highlight other associations inside of your archive. A quickie guide I send to attorneys getting started is located at http://www.attorneyatwork.com/getting-started-with-evernote.
Day to day apps for general work.
GoodReader: A file manager that can open a wide variety of file types and has the ability to markup and annotate PDF documents. It can also be plugged into a number of data services such as DropBox , GDrive, and email providing access to all files in your storage system. Currently this app is only available for the iOS devices the developers are considering branching out to the Android and Microsoft world. An Android alternative to consider is ezPDF.
DocumentsToGo: While Microsoft has announced that they will be releasing MS Office apps for both the Android and iOS devices in 2013 DocumentsToGo has been a preferred app for a number of years to access Office documents from mobile devices.
Penultimate: If you are a yellow-pad lawyer looking for an app that comes close to the experience of that venerable tradition consider Penultimate. Currently written for the iOS platform Penultimate was recently acquired by Evernote and an Android product is in the works. If you do not want to wait consider, Quill for Android or Notability for iOS.
AudioNote: A refinement on the traditional note taking app is the ability to record audio as you are writing and have both of them in synch. Written for all platforms, AudioNote allows you to tap on a written note and be taken to the corresponding part of the audio recording. AudioNote is a great tool for client meetings and depositions.
No matter how good the device, there are some niche tools out there to make them better.
Divide: A common question is how to use a personal phone inside of an organization or firm. Divide creates a virtual desktop system that allows an attorney to separate their personal device information from the information services that may be pushed out from the office. An upside to this is that the ‘office environment’ is fully encrypted and does not mingle data or impact the operation of the rest of the device.
Bump: Written for Android, iOS, and PC platforms, Bump allows you to quickly send files between devices just by placing them close together. The PC version also makes it ideal for quickly transferring data from your device to a laptop without hassling with cables. It is also a great tool for sending contacts and your digital business card to others that you meet.
Legal Specific Apps
TrialPad: The gold standard for trial presentation management with a $90 price tag to prove it TrialPad allows an attorney to quickly call up exhibits and mark them up to help get the point across. There are some presentation alternatives out there that support such as Explain Everything and OneNote that can be used to provide a similar presentation experience.
iJuror: A rapid juror data entry tool for voir dire or trial you can select the juror seat to add juror notes. You can also use the drag & drop interface to manage or dismiss jurors and alternates. The system allows for the management of a jury pool of up to 60 candidates. The developer has just release a web based version called iJurorConnect that provides a free 30 trial to see if this technology is a fit for your practice.
By Michelle V. Harvey
The Utah State Bar is launching a new program for those who are unable to afford full price legal services but are also unable to qualify for pro bono services. The Modest Means Lawyer Referral Program will provide members of the public who fall below 300 percent of the poverty line with a referral to an attorney who is willing to provide representation at a reduced rate. The program will benefit both people who need legal representation and attorneys who can use the program to build a client base and expand their practice areas. The courts will also benefit by having fewer pro se litigants.
The Modest Means Program will have three groups of participants: clients, attorneys, and an advisory panel. Each type of participant has a set of rules for participation. This article will describe each of the three groups and what is required from those taking part in the program.
Standard attorney fees are beyond the reach of the average family and the Modest Means Program is designed to help those who fall into the gap between being able to afford standard attorney fees and qualifying for pro bono assistance. Clients who take part in the program must be below 300 percent of the poverty line. To some this may seem like a high threshold for receiving reduced cost services however, the numbers demonstrate the need for the program. In 2013, for a single person 300 percent of the poverty line would equate to a gross income of $33,510 a year, for a family of five it would be $69,150. Those who fall below this level of yearly income usually appear before the courts pro se because they cannot afford an attorney for legal matters but do not qualify for pro bono legal assistance, which requires a client to be below 125 percent of the poverty line. The Modest Means Program will make it possible for those who fall below this line to have legal representation.
The potential client must fill out a Modest Means Referral Request in order to receive a referral for an attorney. The request form asks general questions to determine if the client falls below 300 percent of the poverty line. These questions include household size, sources of income, and assets, as well as questions regarding exempt money that may be used to pay child support or spousal maintenance. The potential client is also asked about the opposing party and their counsel to prevent conflicts in the referral. The potential client must submit the request along with the $25 referral fee to the Utah State Bar Modest Means Program. Once the request has been received and approved, the Bar will contact the potential client with a referral. It is then the client’s responsibility to contact the attorney to whom they were referred.
In today’s legal market attorneys are finding it harder and harder to find work. The Modest Means Program will help attorneys who are willing to take a reduced fee find clients and broaden their client base. In order for an attorney to be a participant in the program, he or she must be in good standing with the Bar, maintain professional liability insurance, and adhere to the Modest Means Program fee structure.
The Modest Means Program’s fee structure is based on the annual income of those receiving the referrals. If the prospective client has an annual income that falls below 200 percent of the poverty line the attorney agrees to charge up to $50.00 an hour or 35 percent of their normal flat fee for a particular service. If the prospective client is below 300 percent but above 200 percent of the poverty line the attorney agrees to charge up to $75.00 an hour or 50 percent of their normal flat fee. This scale has been developed so that the attorney can determine what they believe the client can afford on an individual basis and charge accordingly.
The attorney must also fill out a registration form in order to participate in the program. The registration form asks for attorney’s contact information, bar number, malpractice insurance carrier and employer. The form also asks the attorney to state which areas of the law and areas of the state in which they are willing to take referrals. The form is turned into the Utah State Bar Modest Means Program. After the Bar staff confirms that the attorney is in good standing, their information is put into a system used to provide referrals.
THE ADVISORY PANEL
The Advisory Panel is a group of attorneys who are willing to help answer questions for those attorneys taking cases through the Modest Means Program. The attorneys on this panel must have at least seven years experience in the area of the law in which they are agreeing to give advice. Attorneys who have taken cases may contact the Modest Means Program stating that they have a question in a certain area of the law. Bar staff will then give them the contact information of one of the Advisory Panel members. The members of this panel should expect to field questions of varying magnitude and should know that it is on average a small time commitment, usually only involving a short phone call.
The members of the Advisory Panel will also have to register to be part of the Modest Means Program. Advisory attorneys must be in good standing with the Bar and must have practiced a minimum of seven years of practice in the area of the law in which they will give advice. The attorney will have to submit a registration form listing which areas of the law in which they are qualified to give advice. The registration form must be submitted to the Utah State Bar Modest Means Program and then the attorney will be put on the list of those attorneys who are willing to be contacted by attorneys taking modest means cases.
The Modest Means Program is currently looking to recruit attorneys looking to broaden their client base or those looking to mentor newer attorneys. If you would like to begin receiving referrals through the program please go to http://www.utahbar.org/modestmeans/modestmeansregistration.html and fill out the registration form. If you would like to be a member of the Advisory Panel, contact Michelle V. Harvey the Access to Justice Coordinator at the Utah State Bar by email at firstname.lastname@example.org or by phone at 801.297.7049.
The Salt Lake County Bar Association’s annual holiday gala at the Salt Lake Country Club is a fantastic party, plain and simple. The event’s popularity has soared in recent years, selling out almost as soon as the invitations are delivered. This year, SLCBA hosted more than 200 guests, including many judges from both the Federal and State benches. The signature cocktails and beautiful setting create a wonderful opportunity to share the holiday spirit with seldom seen colleagues before dinner, and the seated dinner provides everyone with a chance for more intimate conversation. After dinner, the atmosphere heats up as nearly everyone flocks to the packed dance floor, where even the most buttoned-up amongst us cannot resist the sounds of The Metro Music Club featuring the amazing vocals of Joslyn. In a season full of holiday parties and other social obligations, this one has become one of the finest highlights of the season.
Photos from this event are posted to our Facebook page here.
The Salt Lake County Bar Association hosted its annual New Lawyers and Judges Reception on October 25, 2012 at the Alta Club in downtown Salt Lake. The event has become one of SLCBA’s most popular events, and with good reason, as there is not a better opportunity all year to get to know one another outside of the confines of law firms and courtrooms. This year, more than 200 new lawyers, experienced lawyers, and judges gathered to eat, drink, and socialize in one of the legal world’s few informal and relaxed settings. Chief Justice Durrant took the opportunity this year to remind the new lawyers of the valuable asset they possessed in their blank slate reputation, and of the need to protect that value from the discoloration that all too often results from the rough business of law. It would be hard to find a more valuable way for any attorney, new or experienced, to spend a few hours on a Wednesday evening.
Photos from this event are posted to our Facebook page here.
Dear Justice Tongue:
I was brought up short the other day when opposing counsel objected to all of my discovery because I had not first served initial disclosures. They also objected because my standard set of rogs and requests supposedly exceeded some new artificially low limit under the “new rules”. “What new rules ?” I asked aloud, at which time I was informed by the receptionist that the discovery rules had been turned on their head. I immediately suspected a meddlesome committee of “liberal elites” bent on having the government interfere with the courts. Why can’t they leave us alone to duke it out as we always have? Why fix something that isn’t broken? What is the great Justice Tongue’s take on these new and unimproved pesky products of committee chaos?
Oh my! How exactly are you employing the term “new?” Or let me be more pointed in my examination. What percentage of your billable hours are logged during waking hours? You say your receptionist brought you up to speed. I suspect the janitor could have done so as well.
Oh, what a burden has been placed upon you as a member of the bar to actually have to read and implement something new with the hope and ambition of expediting the judicial resolution of disputes. Oh sure, you and your kindred have been endowed a legal monopoly in the right to represent the interest of others in court and the power to exact ever-escalating fees in endless senseless battles over information that rational minds would freely exchange. What an intrusion on your solitude just because clients are completely dependent on your efforts (or lack thereof) to represent and efficiently promote their interests.
Hmm, I just wonder if in your apparently few sentient moments you could grasp the larger concept that the practice of law is not just about you. There is that pesky problem of the clients’ best interest and the fact that you may be doing as much harm to them as the corporate malefactors that drove them into your grasp in the first place. Ask your receptionist if he or she could afford to protect his or her rights in a system that spends most of its time and energy dancing around the universe of possibilities, all the while emptying the client’s pockets long before the few and the well healed can taste the sweet relief of some measure of resolution. With increasing impatience I watch unprepared and distracted “advocates” going through the motions (pun intended) with little evidence that they have any intent or ability to bring matters to trial. It is as if they exist in an insular reality in which the process is the product, and the overweening reality is their status in the law firm’s hourly billing marathon.
Do not get me wrong, the revisions to the discovery rules are far from perfect. But you need to hear the wake up call. If the hallowed system of distributive justice is not serving the interests of real people with real problems (you know the people that vote), they won’t value it. This just in: people will not protect that which they do not value. In other words, they will allow your precious franchise to go bye-bye and the monied malefactors will have their way with this branch of government as well.
I am guessing that by now you are completely lost. Okay. Take this meager offering to your receptionist (or janitor) and let them continue to “bring you up to speed”.
The newest member of the Utah Supreme Court—Justice Thomas R. Lee—has been very active during the nearly two years since he was appointed by Gov. Gary Herbert. He has been an active questioner during oral arguments, has authored twenty-nine opinions (according to Westlaw), has continued to teach at Brigham Young University’s law school, and still manages to find time to coach in his sons’ basketball leagues. This high level of activity, however, has not transformed Justice Lee into a judicial activist. To the contrary, he remains committed to his longstanding belief that the “role of the judge is to say what the law is and not what it should be.”
Justice Lee arrived at the Supreme Court with a wealth of appellate experience. After graduating with high honors from the University of Chicago Law School in 1991, he clerked for Judge J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit, as well as for Justice Clarence Thomas of the United States Supreme Court. During the course of a career split between private practice and Brigham Young University, Justice Lee argued cases before numerous Federal Courts of Appeals and the United States Supreme Court.
Although much of his private practice and teaching centered on intellectual property, the case Justice Lee argued before the United States Supreme Court, Utah v. Evans, 536 U.S. 452 (2002), involved a constitutional challenge—based on the rarely litigated Census Clause—to the methodology used by the Census Bureau in conducting the 2000 Census (which, as you may recall, resulted in Utah’s loss of one congressional Representative to North Carolina). Justice Lee described his oral argument before the Supreme Court as both the most thrilling and the most intimidating experience of his professional career. During argument, all of the Justices—with the exception of his former boss Justice Thomas—peppered Justice Lee with questions about the statistical methods used by the Census Bureau, and under what circumstances those methods of data extrapolation were permissible. One line of questioning even revolved around what the Census Bureau could properly infer when pizza delivered to a particular house subsequently disappeared.
Reviewing the Evans argument online highlighted two things for me about Justice Lee. See Evans Oral Argument Transcript, available at http://www.oyez.org/cases/2000-2009/2001/2001_01_714. First, regardless of the area of law at issue, it is critical to appreciate the starting point of a particular right (for instance, whether it derives from the Census Clause, a statutory enactment, or the common law). Second, active oral arguments—even those involving unanticipated hypotheticals about pizza delivery—are ultimately much more helpful to the judges (and invigorating to the advocates) than those limited to a bland regurgitation of the briefing.
As to his experience on the Utah Supreme Court, Justice Lee praised the fabulous work environment and credited the other Justices for helping him acclimatize to the view from behind the bench. He described the current court as a group who take their jobs seriously, but thankfully themselves “not so much.” The resulting camaraderie has made it possible for the Justices to engage in meaningful debate about matters of great importance to Utah and to respond to the competing interpretations of the law presented in every case with agility. In a nutshell, it is this “give and take” with both the other Justices and the attorneys appearing before the court (as well as the high level of activity that necessarily results from taking this approach) that Justice Lee has come to enjoy so much over the past few years since his appointment.
To newly appointed Third Judicial District Court Judge Todd M. Shaughnessy, the breadth of the legal profession is both its greatest reward and possibly, its saving grace. Judge Shaughnessy has always aspired to the true generalist in his own career, embracing the full scope of intellectual challenges that the profession offers. Now, as a trial court judge, Shaughnessy has the opportunity to fulfill those personal aspirations while simultaneously contributing to the enhancement of the legal profession’s general ability to meet those diverse societal needs.
During his seventeen years of private practice, at both Van Cott, Bagley, Cornwall & McCarthy and Snell & Wilmer, Shaughnessy made every effort to build as broad a practice as civil litigation could offer, immersing himself in the details of any business, industry, or individual that would hire him, even at the cost of billable hours. It wasn’t until he began his judicial career, in July 2011, however, that Judge Shaughnessy learned just how diverse the practice of law really was. The panoply of challenges he faced, from criminal to domestic to probate to civil, were as rewarding as they were foreign and difficult. Judge Shaughnessy has addressed his inexperience in those areas by leaning heavily on his colleagues on the bench, crediting his achievements thus far to their unlimited patience and willingness to help.
Judge Shaughnessy’s private career and early experiences as a judge have made him quite aware of the limitations of litigation and the obstacles that have prevented the legal profession from reaching the full scope of society’s needs for dispute resolution. He is hopeful that the new “proportional discovery rules” will open the doors of the judiciary to a wider variety of trials, litigants, and jurors, by reducing the cost barriers to litigation and by protecting attorneys who try cases upon limited and imperfect information. The increased level of participation, he believes, will vest a larger segment of society in the success of the system, and thereby elevate the profession, while creating new opportunities for lawyers willing to take cases to trial within the confines of the new discovery limitations, more like the trial attorneys of yesterday.
Judge Shaughnessy is similarly a man of many passions in his personal life, and he believes that the diverse personal interests of Utah attorneys play an important role in maintaining the close-knit, cordial bar that we are so lucky to have in Utah. He advises his colleagues in the bar to cultivate those interests, enjoy their short time with their children, and experience the world class landscape in which we live, as he does on his frequent motorcycle trips around Utah and weekends at his family cabin in Torrey. If the daily pressures of law practice start to take their toll, Judge Shaughnessy would advise the civil litigant to check their perspective at the criminal law and motion calendar, where lives are permanently changed on a daily basis. It is those proceedings, and the decisions they require, that now keep the veteran civil litigator, and aspiring generalist, awake at night.