2. A Solid Knowledge of the Law of Evidence.
You have to know the facts. But mere knowledge of facts doesn't do your client much good. You have to know how to get those facts before a factfinder. In other words, you need to understand the law of evidence.
The relative paucity of trials makes it difficult to keep current on the law of evidence. And simply keeping current on case law doesn't do you much good - there are relatively few civil cases that discuss evidence issues. (Criminal law is another matter.)
Nevertheless, great trial lawyers anticipate evidence issues and know how they are going to get facts and documents into the record. Great trial lawyers critically examine the potential proof of their opponents and look for ways to encourage the trial judge to force opponents to meet the evidentiary requirements necessary to get potentially damaging proof before the factfinder.
That being said, great trial lawyers stipulate matters that are not reasonably in dispute and do not force their adversaries to jump through unnecessary hoops to prove what can be readily proven with the expenditure of time and money. Of course, great trial lawyers may not accommodate another lawyer in this regard if the lawyer has not extended a similar courtesy or has not made the request in a timely manner.
A great trial lawyer thinks about motions in limine and makes judgment calls about which issues to raise before trial and which to raise at trial.
Great trial lawyers use objections with care at trial. They understand how to make a record to persuade the judge to rule in their favor and also how to create a record for an appeal.
Great trial lawyers understand the appellate standard of review of evidentiary issues and act accordingly when advising their clients on the appellate process and when preparing issues and briefs for appellate review.
Did you know that there is a statute that expressly permits physicians to base their opinions on subjective complaints?
Here it is:
"In the trial of any civil suit, there shall be received in evidence if offered on behalf of any party thereto, opinions as to medical findings as a result of treatment or examination of the party, whether such opinions are based on subjective or objective findings; provided such opinions are those of persons otherwise qualified as medical experts. It is declared to be the intent of this section that medical opinions based on subjective findings are no longer to be excluded from evidence whether the opinion is from the treating expert or an expert called in for purposes of examination and evaluation."
The subject of court approval of attorney's fees in a case involving minors addressed in this post and this one have given rise to a discussion on the TAJ listserve about the wisdom of the decision. The debate has been interesting. One point made by several commentators is that some judges do not understand the economics of law practice. I first made that point on this blog here and said I would address it.
Here we go.
I was having dinner with several judges one night last spring and the subject of depositions came up. I mentioned that the cost of depositions was outrageous and that the cost of getting a transcript of a full-day deposition was almost $2000. To a person, they were shocked. I took the opportunity to talk about the cost of malpractice insurance, rent, etc. and once again they were shocked. That conversation gave rise to the comment in my previous post is that we need to better educate judges what it costs to run a law office.
One explanation for judge's not being aware of the cost of running an office is that they are out of touch. That is probably true, but it is understandable. If you don't regularly buy something you have no particular reason to keep up with the changing price of it.
At the age of 13 I began what became almost six years of work in grocery stores. I clearly recall that on average a paper grocery sack of groceries would run $10.00. Obviously each sack could run more or less, but it was a safe bet that if Mrs. Sternitsky bought six bags of groceries she would leave the store with $60.00 less in her wallet than when she started.
Thirty-five years later my estimate is that groceries run about $20.00 per plastic sack that is half the size of the good ol' paper sacks of my youth.
But I wouldn't know that if I didn't regularly go to the grocery store.
And that is the problem with judges. Its not that they don't care about what lawyers pay in overhead - it is that they just don't know what they pay. And they have no reason to know because they don't have to go to the grocery store.
New judges know. I can guarantee you that Chancellor Thurman in Cookeville knows - he just left private practice a little over a year ago and he remembers it well. But it would be rare indeed for a judge who has been on the bench for twenty years to have any idea on what it costs to run a law office.
Location makes a big difference, too. Ten or so years ago a lawyer from a small town and I were talking law office economics. He was paying his long-time secretary one-third of what I was paying mine, and we were both paying market rates. Rent in Nashville is often double or triple what it is in a more rural area.
So, let's start a discussion on the subject. What is your per lawyer overhead cost? For these purposes I am including every expense item in your office except anything you pay yourself, anything you pay to or on behalf of another lawyer, anything you pay to or on behalf of a paralegal, and contingent fee case expenses. Paralegal salaries and benefits are typically not included in such calculations because they are treated as time-keepers; i.e. in firms that do hourly work they could bill for the work they do. (There are varying definitions of paralegal out there. For these purposes if you have an employee who regularly does typing, filing, etc. for a lawyer consider the employee part of overhead.)
The goal is to come up with the cost of running your law office on a per lawyer basis. If you have not had a constant number of lawyers throughout the year come up with a fair estimate, using a fraction if necessary.
I'll go first. Our overhead runs about $115,000 per lawyer per year. My overhead is a little higher than it should be because (a) we signed a lease at the height of the market with traditional escalator clauses and the rate is now 20% above market and (b) our space is inefficient. This factor alone raises overhead $10,000 per lawyer (or more).
I was talking with a friend who is a partner in a major Nashville firm and he told me that their overhead runs $180,000 per lawyer per year. Assuming that a lawyer in that firm "bills" 1800 hours per year, the overhead cost per lawyer in that firm is $100 per hour. If the lawyer's income is $180,000 per year, the cost to the firm is a total of $200 per hour for each hour the lawyer can bill and collect.
The traditional law firm rate-making model assumes a profit margin of 33%. It is easy to see why we have 6 and 7-year lawyers charging upwards of $300 per hour in these large firms.
If you have overhead at $100,000 per lawyer per year, you hire a young lawyer and pay him or her $70,000 per year, you need that lawyer to generate $255,000 in income to meet a reasonable profit goal of 33% (a profit of $85,000). By the way, your "cost" of that young lawyer is $100 per hour at 1700 "billable" hours per year.
So, let's share what we pay in overhead and then find a way to let judges know what it costs to run an office. If you don't want to share your data with your name email the figure to me and I will just post your city and your overhead number. I will keep your information confidential.
The Tennessee Supreme Court has appointed me to the Advisory Commission on the Rules of Practice and Procedure effective January 1, 2008. I am honored by the appointment; I have always attempted to be a student of the rules of evidence and procedure and look forward to being a part of the process of improving them.
Do you have a proposed rule change that you think will advance the just, speedy and inexpensive resolution of disputes? Write me an email and give me your thoughts. Please don't just pass on an idea - take a stab at drafting the language that you think should be adopted. Indicate why you think the rule change is appropriate.
Day on Torts: A Handbook for Tennessee Tort Lawyers 2008 has been updated. The updates are free and may be found at http://www.dayontortsbook.com/lawyer-attorney-1251567.html.
To order the book go to http://www.dayontortsbook.com/lawyer-attorney-1251565.html.
On December 14 I wrote about an opinion that addressed the issue of charging fees to minors. The opinion was written by Judge Walter Kurtz, a Nashville Circuit Court judge sitting by designation on the Tennessee Court of Appeals.
I have been hearing some negative comments about this opinion. I respectfully disagree with them and submit that the opinion is not only an accurate statement of Tennessee law but is a correct result on the facts.
What upsets some lawyers is this language: "The most striking void in the record is the lack of any precise information as to the amount of time spent on the case by counsel for the plaintiff." Judge Kurtz explained further in this footnote: "Courts and commentators have observed that time records – time spent on the case – are “central” to the calculation of attorney’s fees." [Citations omitted.]
I suggest that lawyers should instead focus on what was not before the Court of Appeals. The lawyer seeking the fee not only did know how much time he spent on the matter but did not submit an affidavit or any evidence of how much time was spent. Nor did he introduce into evidence any information relevant to the RPC 1.5(a) factors that govern fees issues. Frankly, the lawyer here simply assumed that the trial judge would enforce the fee contract (one-third of the recovery) and did not think about the record.
I am not saying that this lawyer is not entitled to a one-third fee. Judge Kurtz did not say this lawyer was not entitled to a one-third fee. What Judge Kurtz said is that there was not sufficient evidence in the record to justify a one-third fee.
The message to lawyers is clear: make a record. To be sure, a local trial judge knows who you are and probably takes into account the RPC 1.5(a) factors in reaching a decision on fee requests. But an appellate court is forced to look only at the record. And the absence of information in the record will cause a significant problem on appeal.
How do you make a record? The safest way to do so is to have contemporaneous time-keeping in any case where a fee must be approved. The needs to be introduced into evidence via an affidavit, and that affidavit needs to address the other fee factors. Counsel may want to introduce the affidavit of another lawyer familiar with fees charged in similar cases and the claimant's "experience, reputation, and ability." To be sure, it is difficult to "toot your own horn," but the evidence needs to be in the record.
One last related point. We lawyers need to do a better job helping judges understand the cost of running a law office. I will address that subject in a later post.
I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question: what does it take to be a great litigator?
I knew in advance that I would be asked that question and gave the matter a good deal of thought driving from Atlanta to Nashville Friday morning. My response seemed to go over pretty well so I thought that I would share the thoughts on this blog.
I changed the question to "what does it take to be a great trial lawyer?" I chose "trial lawyer" over "litigator" because I think that the readers of this blog tend to view "litigators" as paper-pushing big firm lawyers who don't try cases. It is true that there are a significant number of lawyers in litigation departments in big firms who will never see the first or second chair of a jury trial, but it is also true that there are some great trial lawyers in those firms. My goal is identify the attributes of great trial lawyers, regardless of the type of cases they try, who they customarily represent, or whether their office is over the bank on the town square or in an all-glass office tower.
Now, a couple preliminary statements. First, these thoughts are in no particular order. That is, I am not listing the attributes of a great trial lawyer in order of their importance.
Second, I am not talking about what it takes to comply with the standard of care as a trial lawyer. I am identifying those lawyers who practice above the standard, who are truly at the top of the heap.
Third, a great trial lawyer need not have all of these attributes. Every lawyer has at least one weakness. A great trial lawyer knows his weakness(es) and figures out a way to work around each of them.
Finally, one or more of you (perhaps all of you) may ask what qualifications I have that makes me think I can create a list of attributes worth reading. That 's a fair question. My response is that I was trained by a great trial lawyer (John T. Conners, Jr.) and I have been fortunate enough to have been swimming in the deep end of the litigation pool for twenty-six years. By that I mean is because I worked six or more days a week with Mr. Conners for the first eleven years of my career I had the benefit of working on some significant cases early in my career and most of our adversary counsel were very good or even great lawyers. I left my old firm fifteen years ago and my practice since then has been such that I customarily face lawyers that most people agree are very good or great lawyers. It is my interaction with these lawyers, plus my conversations and interactions with the thousands of lawyers I know in Tennessee and around the nation, that form the basis of these thoughts.
1. A great trial lawyer knows the substantive law applicable to the cases the lawyer evaluates, accepts, settles and tries.
Great trial lawyers make intelligent case selection decisions based in part on applicable substantive law. This does not mean that a good trial lawyer takes only cases that can be won - if that were true there would be no good insurance defense lawyers ( they do not get to pick their cases).
No, a good lawyer knows the law so that if the lawyer has an opportunity to accept or reject a case (or a legal position in an accepted case) a reasoned judgment is made about the merits of the case (or the position) on the known facts. A good lawyer does not have to have the law memorized (although that is a plus) but needs to know the limits of his or her knowledge and look up what he or she doesn't know. This task can be assigned to a different lawyer, but a good lawyer knows what needs to be researched and has sufficient experience and judgment to look for weaknesses in research done by others.
The law is important because it is, well, important. Facts are important. The ability to persuade is important. Lots of things are important. But the fact of the matter is that there are lots of wrongs in the world for which there is no remedy. And there are lots of wrongs for which there is in ineffective remedy. A lawyer who seizes upon wrongs without regard for the law will go broke or, at a minimum, will have some very unhappy clients.
My belief that a great lawyer knows the law does not mean that one should not push the legal envelope. Great lawyers push the envelope as appropriate or necessary. But a great lawyer selects a case or adopts a position knowing that the envelope needs to be enlarged, and therefore is not surprised by a legitimate motion to dismiss, a motion for summary judgment, or a motion in limine. These attacks are anticipated and therefore pleadings are constructed and evidence is gathered to meet these attacks in a timely, effective manner. A great trial lawyer may lose such a fight, but not because of a failure to anticipate the attack, frame pleadings appropriately, gather evidence, or make appropriate arguments.
A great lawyer keeps up with changes in the substative law in the lawyer's practice areas. Once again, no lawyer can keep track of every case in the lawyer's field, but a great lawyer does sufficient reading or attends appropriate seminars have a solid base of knowledge and is aware of current trends in the law. A great trial lawyer can handle cases in almost any field of substantive law, but understands the need to become educated early enough in the litigation process so that case selection and critical decisions are made from a firm knowledge base.
There is no better way to spend a rainy day than update a book (or so says the dullest man in America).
Day on Torts : A Handbook for Tennessee Tort Lawyers has been updated. Seven new cases have been added to "electronic pocket part" of the book. To update the book, scroll to the relevant section here and open it to find links to important cases that have been decided since the book has been published.
Do you want to know the law of collecting attorney's fees when you represent a minor in personal injury case? Do you want to see how you can end up in the Court of Appeals when you seek an attorney's fee in such a case?
Read the opinion in Wright v. Wright, No. M2007-00378-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2007).
The Supreme Court of Florida recently issued an interesting opinion. In Williams v. Davis, No. SC05-1817 ( Fl. S.Ct. Nov. 21, 2007) the Court initially notes that "all property owners owe a duty ... not to permit the growth of foliage on their property to extend outside the bounds of the property and into the public right-of-way so as to interfere with a motorist’s ability to safely travel on the adjacent roadway." But this case was not about foliage that extended beyond the property line but rather foliage on the property that obstructed the view of a motorist.
Here is more: "courts must remain alert to the changes in our society that may give rise to the recognition of a duty even where none existed before. Absolute rules, while predictable in the outcomes they produce, may not be suitable to protect societal interests. This is especially true as we attempt to cope with the carnage on our highways. While a strict rule of immunity from liability for harms caused by conditions on land adjacent to roadways may have once been a practical necessity for an agrarian society and economy, it is markedly less so in Florida’s modern society and landscape. See Keeton et. al., supra, § 57, at 391. In the modern landscape it has become an inescapable fact that people rely heavily, if not exclusively, on the automobile for transportation both in rural and urban communities. We simply cannot ignore the fact that every year highway accidents kill thousands and injure millions of our citizens, while inflicting economic costs in the billions of dollars. Under these circumstances, the dominance of the automobile and the dangers incident thereto have become a modern fact of life that make it more likely that a dangerous condition on private property at a highway intersection may cause harm to those on adjacent roadways."
Nevertheless, the Court went on to say that "we can see little basis for imposing liability on the owner of a wooded residential lot for passively permitting the property to remain in its natural condition so long as the growth does not extend beyond the property’s boundaries. Unlike the situation in Whitt, wherein we concluded that it should be foreseeable to the operator of a commercial service station that obstructions to the vision of an exiting motorist could constitute a danger to adjacent pedestrians, we find it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property."
Want to read more? Gohere.
The nice folks at Justia (which did our firm website and my book website) also have a free service for searching for federal court filings. The site allows you to search or browse for recent orders or opinions issued by just about any federal court in the country. You can search by the name of the party, the type of lawsuit, the federal district court, date, or entering keywords into the full-text search. If documents are available, you can view them, post them to a website, or download them as PDF files.
Today I am in Memphis for the last of our fourth annual Justice Programs seminars. Former Justice Penny White, former Judge Joe Riley and I created a company to offer "annual review" type CLE and ethics for civil trial practioners and it has done great. We have a great crowd in Memphis and in fact have had a great crowd across the state this year.
There is nothing like teaching substantive law at a CLE program to keep your knowledge level where it needs to be in your law practice. It takes scores of hours to prepare for my talks on tort law and civil procedure, but I find that the preperation helps me serve my clients.
To those of you who joined us at a Justice Programs seminar this year: Thank you. To those of you who missed us I encourage you to give us a try. I think you will find that our program gives you much more than CLE credit - it gives you information you can use to better serve your clients.
This article in yesterday's The Washington Post reported that 96% of physicians thought that they should report an impaired or incompetent colleague - but 45% said that they did not always do so.
In addition, "46 percent said they had failed to report at least one serious medical error that they knew about, despite the fact that 93 percent of doctors said physicians should report all significant medical errors that they observe."
I am not saying anything negative about doctors by telling you about this article. I am simply saying that doctors are human and that sometimes their conduct falls below what they expect of themselves.
In others words, they are just like us.
The Georgia Supreme Court has refused to strike down that state's statute of repose in medical malpractice cases when challenged on equal protection grounds. Georgia has a five-year statue of repose in medical malpractice cases (Tennessee has a three-year statute of repose).
The case is Nichols v. Gross, S07A1027 ( Georgia S. C. Nov. 21, 2007). Read the opinion here.