Your Expert’s First Role In Any Case

Litigating any case is stressful business. But I had a real nail-biter some time back. It was a product liability case and my client was a small mom-and-pop outfit that supplied a component which had been materially altered, mis-installed, and ultimately caused a rather horrendous accident.

Legally, it should not have been a difficult case to defend. The problem I found myself having was grasping exactly how the alteration and mis-installation had ultimately impacted my client’s component. Any product liability lawyer will tell you this was crucial to the defense. The technical issues were pretty complex, at least for me (a philosophy major, not an electrical engineer), and no matter how hard I tried to understand, no matter how much I thought I’d finally “got it,” I would struggle anytime I tried to explain how the alteration and mis-installation had fouled up my client’s product.

In any other case, I would have relied on our technical liability experts to teach me all of the technical details I need to know. The problem here was that my client was defending the case on a shoestring budget. If we weren’t careful, this case would bankrupt his company. He insisted that he would serve as the primary expert, since he was an engineer who’d invented the component in the first place and nobody knew the technology better. The obvious issue with this was he has no cloak of independence. His testimony would be viewed by the jury as completely self-serving; his opinions suspect as such. The less obvious issue that I had with this plan was the fact that, while my client was undoubtedly a first-rate engineer, his teaching skills were less than stellar. If he couldn’t teach me, how could I expect him to educate the jury? Meanwhile, my opponent was retaining expensive, experienced testifying experts from Exponent, etc.

I typically wouldn’t hire anyone as an expert who couldn’t help me understand, since (1) my comprehension of the technical details is absolutely crucial to my ability to confront the plaintiff and her experts, both in discovery and at trial; and (2) our expert’s ability to educate someone of less-than-genius-level intelligence (i.e., me) is going to be needed in order to help the jury understand why my client can’t be liable. The importance of an expert’s ability to educate the trial lawyer, as well as the lawyer’s responsibility to conduct his/her own outside learning, is discussed by Professor McElhaney, in Litigation. He says:

“The first job for the [expert] witness is to explain everything to you [the trial lawyer]. You have to keep asking questions and demanding answers until you are satisfied. Do not just rely on the witness, either. Read as much additional literature as you have time for; it is not just background information. Learned treatises that support the witness are admissible under Rule 803(18) of the Federal Rules of Evidence.” (p.62)

Our case ultimately settled, and I breathed a deep sigh of relief, but not before spending several near-sleepless nights worrying how I was going to overcome the challenges of sufficiently understanding the technology to deal with both the plaintiff’s and defense liability experts. It was a learning experience in several ways. I learned to quickly recognize when I’m having difficulty grasping the complex technical concepts necessary to effectively defend (or build) a case. I learned that, regardless of budget constraints, it will not suffice to rely on testifying experts who, though knowledgeable in the subject matter, cannot effectively teach it to a complete novice. I learned that selection of experts is not a discussion to put off having with a client until the time for expert retention, but should be addressed at the outset, to ensure the client has an opportunity to think about how an appropriate, qualified expert can be identified and compensated, even with severe budget constraints.

Five Sound Negotiation Pointers

I recently participated in a conference about negotiation. I left with a list of negotiation “pointers,” short strategies to help keep your eyes on the prize when negotiating. I’ll share five good ones here.

1. Set your goals ahead of time and come prepared with alternatives. You (should) know you will be making concessions in the negotiation process; try to think of what concessions are acceptable and where you’ll need to draw the line. In this planning, also anticipate your opponent’s points and develop responses.

2. Make sure the other side feels heard and understood. Then make sure they hear and understand you. If either party to a negotiation is not being heard, it’s not really a negotiation.

3. Don’t be dragged into an emotional response. Condescension, rudeness or bullying should be firmly met. Don’t back down–remind them that you came prepared to make a deal and that you thought they did too, then transition back to the points you want to discuss. Once your opponent realizes their tactics are not intimidating you, they will likely stop.

4. “Horse trade” when making concessions. Try to make concessions conditional on an equal or greater concession by them. Also, before making a concession, try to find out what additional concessions they will ask for before signing an agreement.

5. Don’t be afraid to invoke a “cooling off period.” If you reach an impasse, or are not sure what move to make next, consider asking your opponent to give you 24 hours to consider their last move. A corollary is not to be so eager to make a deal that you make concessions you will later regret.

And, remember, we’re all counting on you.

Sound Strategies For Litigating In A Crumbling Court System

This originally appeared in the Los Angeles Daily Journal.

At the risk of ridiculous understatement, all is not well in the California state court system. Last week it was reported that, over the last five years, about $1.2 billion has been taken away from our state judiciary, leading to the closure of 164 courtrooms and roughly 2,000 layoffs. In Los Angeles courts, the situation is just going to get worse. Another round of cuts are slated for June, meaning 25 percent fewer courtrooms, and the 16,000 pending personal injury cases will be divided among just three judges.

For those of us who cannot just “pack it in,” but must continue to ply our trade in this challenging environment, the question becomes how to effectively cope with these developments. The most natural response would be to choose a different forum. But federal district court is only an option when it is an option. And, while binding arbitration gives clients the chance to have their disputes heard where, when and by whom they chose, I argue this is rarely a reasonable alternative for at least two reasons. First, arbitration costs an arm and a leg, and these costs are frequently borne at the outset by just one party — usually the defendant. Second, putting one’s fate in the hands of a single decision-maker, with no possibility for review, is a bold step not to be taken lightly.

So, assuming federal court and arbitration are not viable alternatives, what can litigators do? Here are some suggestions:

Take control. The days of state court judges with the time or inclination to micromanage a case are behind us. This creates both a burden and an opportunity. If it furthers your client’s interests to take the helm and control the course of the litigation (and it usually does) and you package your plan in a way that is easy for the judge to adopt, it is possible to gain a tactical advantage.

Consider the Case Management Conference, which is often the first chance to meet the judge. Increasingly, it may be your only time with the judge before trial. Make the most of it. I’m not suggesting judges will begin to show interest in those vanilla Case Management Statement forms. But that doesn’t mean you can’t come to the conference prepared to get something done. Have an agenda and be specific. Want staggered expert disclosure deadlines? Raise it at the conference. Already having problems getting the other side to agree to deposition dates? Ask the judge to schedule them, making the dates part of the minute order. Many judges will appreciate having at least one attorney in the case who is awake at the wheel and ready to advance the ball. You will both curry favor with your judge and advance your client’s interests.

Look for early exit opportunities. This isn’t new or revolutionary. But fewer available courtrooms means it will take longer for your client’s case to reach trial. There was a period when judges aimed to push cases through within a year. This just isn’t going to be viable going forward. If an early exit by summary judgment or settlement is a possibility, pursue it earlier and save your clients the inevitable costs of languishing. Perhaps formulate a reasonable estimate of how early a summary judgment motion could be heard and reserve the hearing date right away. If you don’t, you may learn (as I did) that the court can’t hear your motion until about a week before your trial date (if then), which pretty much defeats the purpose of seeking summary judgment.

Be proactive in simplifying the case. Historically, it was not uncommon for a plaintiff to pursue every theory and keep every party initially sued in the case until the bitter end. This is not an indictment, but an observation. While ancillary theories are ultimately abandoned and unnecessary parties inevitably dismissed, the truth is they probably didn’t belong in the case to begin with and should have been omitted or “cut loose” much sooner. Simplifying the case sooner is not only the right thing to do; it will help reduce the judicial logjam.

Learn to meet and confer. We know the rules of civil procedure require us to demonstrate a good faith effort to meet and confer with opponents before filing discovery motions. Regardless whether we took that obligation seriously in the past, there is no question we must be sincere in our efforts to informally resolve discovery disputes now, since we’re unlikely to get rapid, if any, relief through judicial intervention. Meeting and conferring means earnestly trying to solve a problem, not just posturing.

Manage client expectations. Clients may have wildly different expectations about how a case will progress toward trial. To the extent these expectations may be unreasonable, based on another venue or a different era, take steps to ensure they are in line with the current environment. It is our court system, and not your practice, that is in crisis. Make sure your clients understand this.

Keep abreast. One major complaint cited in a recent Law360 article was the situation of showing up for a firm trial date only to learn it has been continued for weeks or months. We all know how disruptive trial preparation can be, not only for businesses, but also for individual clients. Contacting the clerk as a trial date approaches can often (though not always) yield information that helps reduce the surprise and attendant costs when the trial has been continued.

Is a court action really necessary? Pre-suit settlement has always been an option, but not always one taken seriously by lawyers or their clients. The current judicial budget crisis should change that. Not only will it take longer to get a case to trial, but the costs of getting there — from rising routine filing fees to optional, party-funded court reporters — are rapidly increasing. Where parties might have historically elected to proceed straight to litigation solely to enhance bargaining power or demonstrate resolve, it makes much more sense in the current environment for every party to thoroughly explore settlement before filing a complaint or refusing to further negotiate.

It is not inconceivable that more state general fund money will be allocated to the judiciary to alleviate the courtroom closures and staff layoffs. Until then, however, it falls on practitioners to do what we can to protect our clients during this challenging time. Hopefully these suggestions will help.

Lesson From Big Dog Defendants: Insist On An Evaluation

I counsel and defend both small and large companies, mostly on employment issues and cases. I see many differences in how a larger, more established company handles its role as a defendant in civil litigation, and I think there are important lessons a smaller entity can learn from these “big dogs,” even if they never plan (hope!) to get sued again. Chief among these lessons is the value of a well-considered evaluation report.

Smaller companies might view any kind of written evaluation as a frivolous, unnecessary expense. I sympathize with this view, but I think it is misplaced. First, as you’ll see, I’m not advocating the kind of “term paper” report demanded by large corporate defendants. For a corporate client or insurance carrier that is regularly involved in litigation and knows what it wants to know, I’m happy to provide the most detailed report in the world. Why would I object–I get paid to do it?

But when I counsel a company that rarely finds itself in civil litigation, I don’t think it’s necessary to incur the cost of a 20 or 30 page tome. Rather, something that is between 2 and 4  pages total balances cost-efficiency with the importance of a written evaluation.

Before I get to what to look for in an evaluation, I want to cover timing. Large corporate clients for whom I’ve prepared evaluation reports typically require a comprehensive initial report anywhere from 90-180 days after the suit was assigned. Thereafter, most corporate clients like to see an update every 90-120 days, with some kind of even more comprehensive pre-trial evaluation about 60-90 days before the scheduled trial date. There’s no reason a smaller company should deviate from this timing. It is important to understand that an update is just that, it’s not a re-writing. I simply bold any information that is new since the last report. If there are things from prior reports that no longer belong, they can either be scored or deleted altogether.

Here are the elements I would, as a client, always expect from an evaluation of a case in litigation:

1. Brief statement of operative facts. Brief means brief. The point is to make sure both the client and the lawyer have a common understanding of the operative facts. These might be both what is alleged and what the defendant is expected to prove. The last thing any client should want is for its lawyer to start trial without ever having run through a narrative of the operative facts on paper.

Also, even a very small company will likely have people involved at the management level with only a marginal understanding of the facts. This brief (did I say brief ?) statement can be shared with senior management, directors, investors or partners, to bring everyone up to speed. In addition to the liability facts, I would also include a list of the theories of liability and a brief statement of the damages sought, even if only in summary prayer, rather than concrete dollars and cents.

2. Very brief evaluation of the venue, judge, opposing counsel and plaintiff. (I mean brief dammit!)

3. Evaluation of each viable defense, including strengths and weaknesses. This is really the heart of the evaluation. This should be written in language that, to the extent possible, is devoid of legalese or confusing concepts. Clients who are not lawyers should be able to read this section and get a clear understanding of what will be proven at trial and how. On receiving this, clients should ask counsel to clarify any point that is not clear.

Now, while this section of the evaluation is written for the client, part of the value is in the composition process itself. In formulating this part, the lawyer will be forced to think through the client’s defenses, evaluate their viability and even develop a short inventory of what evidence will support the defense or make it challenging.

4. Exposure. How much, realistically, could the client lose if the case is tried and lost. In my field, employment law, this needs to include an estimate of the opposing side’s attorney’s fees since most federal and state employment law schemes permit a prevailing employee to recover her reasonable attorney’s fees.

5. Ultimate recommendation. Is this a case that should settle? Is it a trial candidate: i.e., one in which there is a 75% or greater likelihood the client will win (I prefer to think of it this way: a jury will return a defense verdict 7 out of 10 times)? Clients’ risk tolerances differ; some are more willing to gamble, others want to be virtually certain of prevailing at trial (there’s no such thing as virtual certainty of a verdict, by the way).

If the recommendation is to pursue settlement, what is a reasonable settlement amount, and what is the proposed path to get there?

6. Tasks and budget. Clients should be entitled, at every stage of any lawsuit, to a list of what is anticipated to be done in the next 60-120 days, and a reasonable estimate of what the cost will be. Hopefully clients understand that this is only a thoughtful estimate of what is required and the cost. None of us is omniscient.

Crucially, an evaluation should be considered a living document. Cases evolve. If every single fact, estimate and nuance of an evaluation remains the same from the beginning of the case until the start of trial, something is missing. Again, I advocate an approach that simply adds new developments to an old evaluation in bold.

Many lawyers will provide some kind of evaluation as part of their ordinary practice. If you’ve hired one that does not, ask her not only to provide an evaluation, but to provide it early enough so that a bad case can be settled before so much time and money has been invested that settlement is not a viable option for one side or the other.

5 Secrets to Gaining Client Trust: #5 Respond and Be Present

Ok, these are actually two separate “secrets.”  Think of the extra as a bonus.  As you’ll see, however, these are related and flow from the universal truth that pretty much every client likes to think and feel that he/she/it is the only client in your professional life and the only one you care about. 

The first is: Be Responsive.  Whether you communicate with your clients by telephone, email or even text messages, immediacy or ASAP is the name of the game.  Obviously, if you can take a phone call (without violating the second “secret” of this post below) that is best.  If you can’t or your client initiates contact by email, I like to follow the rule of responding within 2 hours.  If it is not possible to respond substantively within 2 hours (very often the case), I like the approach of responding with an email that (1) acknowledges receipt of the client’s communication; and (2) promises to get the answer and/or provide a substantive response within 24 hours.  The important corollary to this policy is not to forget to follow-up with the substantive response within a day.  If you can make this a pattern, and follow it, it helps to lead clients blissfully believe they are you only–or at least most important–client. 

Second: Be Present.  For some reason, I find it easy to shut off the world around me when I am with my 4-year-old daughter.  I like to think I’m completely present with her.  This helps me feel like, even though I work a lot and can’t spend as much time with her as I’d like, at least the time we spend together is high quality time.

I try to apply this same principle to time spent with clients, albeit for different reasons.  It’s not that my clients are adorable now and will some day grow up and become, if not less adorable, at least less available.  Instead, I try to put myself in my client’s shoes.  Anyone who pays a few hundred dollars an hour for my time deserves my complete attention.  That’s what I would expect, and that’s what my client should expect.  This means in most instances I do not, when with a client, answer my phone, check the stock market, read and respond to email concerning other matters, or use my iPhone to check the paltry stats on my blog.  In fact, I’m not adverse to leaving my phone in the car or turning off the ringer when I know my undivided attention will be appreciated.  The only exception is when I’m with a client and there’s down time and the client starts checking his or her own email. 

I’ll admit it’s challenging to apply both of these habits.  In other words, it can be hard to quickly respond to calls, emails or text messages when I’ve elected to shut off or ignore my phone to be present with a client.  But it’s important, and if practiced with care, is bound to engender client trust.

On Timing of Contention Interrogatories

It used to be that I gave no real thought to when, in the course of a lawsuit, I would serve contention interrogatories.  Sometimes, I would serve them concurrently with my client’s answer to a complaint, just to get the discovery ball rolling.  But a couple of years ago a litigator whom I greatly respect gave me a tip I’ve found to be valuable, and which I’ll pass on here.  In a nutshell, the idea is to hold off propounding contention interrogatories, or requests for admission with corresponding interrogatories, until after completing the opposing party’s deposition.  This seems so obvious to me now that it’s hard to believe I didn’t intuitively follow the practice from the beginning. 

Contention interrogatories provide an excellent roadmap to the proponents case.  If I represent a plaintiff, my contention interrogatories will ask my opponent if and how they contend I will not be able to prove any essential element of my client’s case.  They may also ask what evidence my opponent has to meet his/her/its burden of proving essential elements of an affirmative defense.  If I represent a defendant, the interrogatories ask what facts and evidence my opponent has to prove his/her/its case (or to counter my client’s affirmative defenses). From viewing these interrogatories, my opponent should be able to get a pretty good idea where the contest(s) will be in the lawsuit.   

Assuming my opponent can walk and chew gum, he or she is not going to simply tender the interrogatories to his/her client, transcribe and serve the responses.  Either the attorney is going to work with his/her client to jointly draft responses, or he/she is simply going to write the responses and have the client sign a verification.  Either way, the interrogatories and responses are probably the best tool available for preparing his/her client when the time comes for deposition.

This is not to say that I do not serve any discovery before the deposition.  In fact, I think it’s important to serve a pretty comprehensive set of requests for production right at the outset.  Ideally, I’d like to have most or all of the relevant documents in-hand and reviewed prior to the deposition.  This is not always possible, but it’s a worthy goal.  I also see no problem serving discovery which asks the opposing party to identify all witnesses he/she/it believes will have knowledge of relevant facts (note that I do not limit the query to persons with knowledge of facts the opposing party “may use to support its claims or defenses” a la FRCP 26(a)(1)(A)(i)–I want to cast a broader net).  Unlike contention interrogatories, this discovery provides no roadmap whatsoever as to my client’s strategy in the case. 

Anyway, I hope this finds readers thinking “hey, that’s a pretty good idea.”

Bargain Basement-Priced Focus Groups To Help See Strengths and Weaknesses of Your Case

I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases.  They can also be useful in trying to estimate a potential adverse verdict range.  I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients.  It was only because my firm represented such clients that I was able to get this first-hand experience.

Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets.  Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.

The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend.  I’m most familiar with the mock trial exercise, so we’ll use that format.  This requires, at a minimum, a suitable space and mock jurors.  “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes.  If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate.  Suitable also means private.  While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place.  Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions. 

Mock jurors–where to find them?  If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury.  This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap.  I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like.  Be prepared, not only to compensate the mock jurors for their time, but also to provide parking.  Thought should be given to providing food, assuming the exercise is going to last more than 3 hours.  It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch. 

If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise.  However, you still must find jurors from somewhere, which means employees, family and friends.  This might mean biases will come into play.  While unavoidable, this biases must be “factored into” the results of the research.   

If the budget makes it possible, I highly recommend involving a jury consultant.  While some research can be done without one, it will be far less focused and productive.  The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing.  Crucially, a good jury consultant will help synthesize the information gleaned from the exercise.  After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions. 

To provide a concrete example of how this might work, my last mock trial  lasted one full day.  The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m.  They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire.  My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement.  Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.”  Each side then presented about one-half hour of ”evidence.”  This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence.  Some evidence was presented simply as “facts to be assumed.”  Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session.  Somewhere in there we excused the mock jurors for a brief lunch break.

Most interesting and informative was the post-trial debriefing session.  Certain important facts had been purposely withheld from presentation during the mock trial.  These were then revealed incrementally.  This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations.  We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.

There are countless variations on this approach.  You can eschew the evidence presentation and simply read facts the jurors should assume.  You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received.  There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations.  The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise.  In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.

Should Depositions Really Be A Contact Sport?

I recently defended a fairly contentious deposition.  To my surprise, my witness complained to me during a private meeting halfway through the deposition, “I wish you’d really give it to him.  If I was a lawyer, I’d never let him (opposing counsel) get away with that.”

I was frankly surprised.  While I wasn’t obstreperous, I hadn’t been a shrinking violet, either.  The examining counsel had asked mostly crappy questions and my witness had been really well prepared (in my not-so-humble opinion) over the better part of two full days.  I thought the deposition was going swimmingly.

I sensed that the problem, from my witness’ perspective, was that she was wounded by the way the examiner was treating her and bitter that certain facts she viewed as private (family status, country of origin, etc.) were being dragged out of her in what appeared to be a harsh, public way.  She’d never been deposed before, and wasn’t used to how lawyers routinely twist and torture the meaning of a witness’ testimony.  I realized it wasn’t that she felt that I wasn’t doing a technically capable job, but more that she expected any lawyer on her side to exact a pound of flesh from the examiner.  After all, what else was I there for?  She wanted John Wayne with a briefcase.

I told her, “I actually think you’d find it harder to concentrate, understand the questions and answer if I had really mixed it up with him.”  This is based on experience.  In the past, when I’ve encountered a real asshole examining my witness, or when I’ve been flabbergasted by a particularly egregious line of questions, or just had too much caffeine, I’ve turned into a real jerk.  (Turns out I can portray a pretty good jerk–who knew?)  I’ve always reflected afterward that, while I might have dished out some really cutting barbs, had I been a good advocate?

I certainly hadn’t improved the record.  (In fact, I’ve worried after particularly hot tirades about the possibility my Mamet-esque monologue might find its way into an exhibit read by the judge.)  Worse, though, I’d always felt afterwards that the additional tension caused by our dust-up exacted a psychological toll on the witness.  Sure, there are people used to concentrating and communicating in abusive environments.  But I’m sure the abusive environment rarely made them concentrate or communicate better than they would if those around them treated each other with respect.

At the end of the day, as I explained to my witness, what matters most is the transcript–the written record.  (Unless the deposition is videotaped.)  Whether I verbally punish the examining lawyer, or even make it more difficult for him to do his/her job, it’s unlikely to improve my client’s chances of prevailing, particularly if I engage counsel in a vitriolic exchange which makes it hard for anyone to think.  The best revenge, I told my witness, is to win the case!

A New Twist On An Old Way To Waive Jury Trial in California

Because my finger is ever tapped to the thumping pulse of civil procedure in our fine state, it only took me slightly over a month to realize there’s a new and improved way to lose your right to a trial by jury.  Still, I’m guessing that this will be news to some, hence the post.

Senate Bill 1021 was apparently signed and has already been made effective in at least some California counties (at least San Francisco and Los Angeles).  This amends Code of Civil Procedure Section 631 to provide that, where the deadline to post jury fees had been 25 days before trial, a party now risks waiving the right to jury trial unless he/she/it posts $150 in nonrefundable fees no later than the initial case management conference (CMC).  If there is no CMC held in a case, the deadline becomes 365 days after the complaint is filed.  For parties entering a suit after these deadlines have passed, the old 25 day before trial rule applies.  Thankfully, Section 631 retains the provision providing a court discretion to grant a jury trial to a party that arguably waived that right though failure to pay.

I can’t pretend to be surprised that the state is looking for new sources of revenue.  Forcing parties to post fees sooner and making the fees nonrefundable is one way.  It’s getting more and more expensive to sue or be sued (assuming you want a jury).  I’m reminded, though, why transactional lawyers are glad to hand off lawsuits to litigators–our practice is so filled with dread-inducing deadlines.

On Getting Through The Drama of A Lawsuit

You are a CEO reporting to an angry board.  You are a sole proprietor with the future of your business at stake.  Or you are an employee accused of discrimination or harassment, with your job and relationship at home on the line.  Lawsuits are long, drawn out, often dramatic ordeals; they exact a toll on the participants.  What follows are some ideas about how to cope with this drama and stress:

1.  Find a lawyer you trust.  This sounds obvious, but it can take some searching to find the right attorney.  He or she must be competent in your eyes, or your stress level will increase.  Equally important, your lawyer must be able to manage the stress of the suit or, again, your stress level will be worsened.

2.  Trust the lawyer you find.  Once you find the right lawyer, trust him or her.  It is rare that your lawyer will not want and expect you to be truthful with him or her, even if the facts are bad or embarrassing.  Your lawyer is in the best position to help you or your company; arm him or her with the true facts.

3.  Participate in your case.  I have found that individual clients who take an active role in their case experience a feeling of control.  It’s not illusory.  Your lawyer can only work with the tools and materials made available to him or her.  You can do quite a lot, by locating and organizing documents, educating your lawyer about the nuances of your business or the circumstances of the case.

4.  Manage your anger, fear or frustration.  The stress of being the target of a lawsuit is not dissimilar from other traumatic or stressful events.  Experts coach those going through a divorce or enduring a tragedy to use exercise or relaxation techniques, like meditation, to manage the stress.  Think of a lawsuit in the same way.  One caveat:  bear in mind that communications with someone other than a spouse or lawyer about the details of the case can be “discovered” and potentially used against you if you say something damaging.  Consult with your lawyer before speaking in any detail about your case with someone who is not your spouse.

5.  Try not to direct your anger or frustration at your loved ones.  This will only make it worse and potentially cause damage that can be permanent.

6.  Try not to direct your anger at your lawyer.  Don’t kill the messenger.  In most instances, your lawyer is doing the best he or she can to protect your interests.

7.  Brace for the long haul, but know it will come to an end.  The cliché, “this, too, shall pass,” is true.  Every lawsuit will come to an end, and there will be an opportunity for closure and new beginnings.