Data, Documents, and Decisions

Data, Documents, and Decisions A Road Map for Document Preservation

Arbitration for the Trial Lawyer

The Ethics of Joint Representation

Vol. 40 No. 1 Fall 2013

T h e J o u r n a l o f t h e S e c t i o n o f L i t i g a t i o nAmerican Bar Association

Published in Litigation, Volume 40, Number 1, Fall 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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A Road Map for Document PreservationM i c h a e l c . M i l l e r a n d J e f f r e y M . T h e o d o r e

Here are some strategies to avoid the nightmare of meaningful sanctions due to

unpreserved documents.

Winning Your Case Using Visual Grammarf r a n k S o M M e r S a n d d a n r o a M

Drawing freehand sketches during oral presentation grabs an audience’s attention in the

courtroom or the boardroom.

Making Your Papers Come Alivef r a n k S o M M e r S a n d r o b b u n z e l

Linking complex briefs and their exhibits in electronic documents can help judges follow

your argument.

Sua Sponte h o n . b e r l e M . S c h i l l e r

A judge comments on whether electronic documents really help your case.

Remove Your Case to Federal Court: Lesser-Known Optionsa n d r e w e . S h i p l e y

When you need to get a case out of state court, the federal officer removal statute may

provide a winning option.

Tips for Lawyers Writing in a Time Cruncha n n a h e M i n g w ay a n d J e n n i f e r l e a r

These guidelines for writing on a tight deadline help provide relief for stressed litigators.

Arbitration for the Trial LawyerJ e f f e r y d . u b e r S a x

With the importance of alternative dispute resolution growing, this overview prepares

litigators for the nitty-gritty of arbitration.

The Ethics of Joint Representationl u c i a n T . p e r a

Representing more than one client in the same matter is a potential minefield. Here’s how to

avoid an explosion.

F E A T u R E s

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w w w. L i T ig AT ion Jou r n A L . o r g

T h e Jou r n A L o f T h e S e c T ion o f L i T ig AT ion

A m e r ic A n B A r A S S o c i AT ion

Vol . 40 No. 1 Fal l 2013

Lit igation (ISSN 0097-9813) is publ ished quarterly by the Section of Lit igation, American Bar Association, 321 N. Clark St . ,

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E d i to r - i N - c h i E F

robin Page WestCohan, West & Karpook PCBaltimore, Maryland

E x E c u t i V E E d i to r

Martin J. Siegel Law Offices of Martin J. Siegel Houston, Texas

S E N i o r E d i to r S hon. Jeffrey coleU.S. District Court Chicago, Illinois

Kenneth P. NolanSpeiser Krause Nolan & GranitoNew York, New York

Maria E. rodriguezVenable LLP Baltimore, Maryland

charles d. tobinHolland & Knight LLPWashington, D.C. Lawrence J. VilardoConnors & VilardoBuffalo, New York

A S S o c i At E E d i to r S

Kevin AbelBryan CaveSt. Louis, Missouri

hon. Elaine E. BuckloU.S. District Court Chicago, Illinois

Edna Selan EpsteinLaw Offices of Edna Selan EpsteinChicago, Illinois

t. Markus FunkPerkins Coie LLPDenver, Colorado

William t. GarciaWashington, D.C.

hon. Joseph A. Greenaway Jr.Third Circuit U.S. Court of Appeals Newark, New Jersey

Ashish JoshiLorandos Joshi Ann Arbor, Michigan

Stephanie KaneDenver, Colorado

hon. Virginia KendallU.S. District CourtChicago, Illinois

robert E. KohnKohn Law GroupLos Angeles, California

Alain LeibmanFox RothschildPrinceton, New Jersey

Leslie MachadoLeClair RyanWashington, D.C.

tiShaunda r. McPhersonU.S. Department of EducationChicago, Illinois

Pamela MenakerClifford Law OfficesChicago, Illinois

Yuri MikulkaStradling Yocca Carlson & RauthNewport Beach, California

Steven J. MillerMiller Goler Faeges Lapine LLPCleveland, Ohio

robert E. ShapiroBarack Ferrazzano Kirschbaum & Nagelberg LLPChicago, Illinois

Frank Sommers iVSommers & SchwartzSan Francisco, California

Lee StapletonBaker & McKenzieMiami, Florida

S E c t i o N o F L i t i G At i o N

don Bivens, chairSnell & WilmerPhoenix, Arizona

Nancy Scott degan, chair-ElectBaker DonelsonNew Orleans, Louisiana

Steven weiss, Vice chairSchopf & WeissChicago, Illinois

P E r i o d i c A L S d i r E c to r

Monica BuckleyAmerican Bar Association

M A N AG i N G E d i to r S

Scott LewisAnna SachdevaAmerican Bar Association

A r t d i r E c to r

Jill tedhams American Bar Association

S tA F F E d i to r S

Steve GartlandJonathan haugendarhiana Mateo tellezAmerican Bar Association

E d i to r i A L A S S i S tA N t

Monica LarysAmerican Bar Association

Cover Illustration by Doug Thompson

For permission to reprint articles, please go to americanbar.org/utility/reprint.html.


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p r i V i l e g e

Who Is the Client in the Closely Held Corporation?e d n a S e l a n e p S T e i n

f i r S T - T i M e l a w y e r

Leading Your Way Through Cross-Examinationk e l l e y b a r n e T T

T r i a l p r a c T i c e

The Next Step?c h i p b a b c o c k

o p e n i n g S T a T e M e n T

Five Traits of the Best Lawyers I Knowd o n b i V e n S

f r o M T h e b e n c h

Rethinking Civil Litigation in Federal District Courth o n . p aT r i c k J . w a l S h

o n T h e p a p e r S

The Style Proclaims the Lawyer: You Are What You Writeg e o r g e g o p e n

i w i T n e S S

Collecting Data from Mobile DevicesM i c h a e l a r n o l d

a d V a n c e S h e e T

Anonymity Anyone? r o b e r T e . S h a p i r o

g l o b a l l i T i g a T o r

Contrasting U.S. Litigation and International Arbitrationo l e g r i V k i n

S i d e b a r

Changek e n n e T h p. n o l a n

S c r u p l e S

Interfering with Client RelationshipsM i c h a e l d o w n e y

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opening Statement

d o n b i V e n S

The author is a litigation partner with snell & Wilmer LLP, Phoenix, and chair of the section of Litigation.

Most of what I know about litigation I learned from other lawyers. Sure, I learned from my own experience and mis-takes. But just as surely, I borrowed from lawyers I admire and consider “the best.”

Good litigators come from all manner of backgrounds and practice settings.

But the best litigators I know share certain traits in common. If you follow some or all of these traits in your practice, then you are on my list of best lawyers, or you are well on your way.

1) Put Yourself in Every Chair at the TableIn my experience the best litigators focus on people and their needs. They work to understand the social dynamics at play in every case, and they use that under-standing to their clients’ advantage. I am not referring here to social intuition, al-though that is a plus. I am talking about the consciously acquired skill of under-standing how people think and act.

Of course, the starting point for any litigator is to understand your own cli-ent and the case at hand. Good lawyers ask , “How does my client define victory?” “How realistic is that outcome?” But the best lawyers go further to envision every player in the case—and their lawyers—sit-ting around a table. Best lawyers imagine themselves sitting in each chair and they consider how each person might define victory from where they sit. What are each person’s strengths and vulnerabili-ties? Is this dispute only about money? Are there components of embarrassment, saving face, cover up or emotional wounds in the mix? Perhaps there is a simple need to vent anger or frustration that might dissipate with time. Who has the moral high ground? Is that the same as the legal high ground?

I encourage you to try this exercise with a case on your desk. After you have put yourself in every chair at the table, I am confident you will gain a better

Five Tr aiTs oF The BesT L aw yers i K now

understanding of where things stand and what needs to be done. The answers will be different in every case. But the best lawyers I know make a conscious effort to understand the perspective of every per-son in the room. In the courtroom, this includes the judge and the jurors.

2) Leading Litigators Are Community LeadersIn my observation, the best litigators seek out opportunities to meet new people and to work in groups. This, of course, requires them to get out of the office and into the community. Look around your city. You will see that many of the best litigators are also leaders in the commu-nity at large. This is no coincidence. The skills required to excel in both spheres overlap, and so do the opportunities to ob-serve how people think and act. The best lawyers recognize that what they learn about people from community service comes back to make them better lawyers.

I encourage you this week to identify a new group of people with whom you might work on an issue that matters to you. Pick something you are passionate about. Get involved. Raise your hand for a leadership role. The issue itself is not the point. It could be the arts, legal aid for the poor, politics, children’s rights, a bar association—whatever motivates you. The point is to work with a group and learn from the experience, like many of the best lawyers do.

The Section of Litigation can be a re-source here. Join one of our many subject-area committees, read our newsletters on hot issues, attend one of our regional meetings about developments in your practice area, or join one of our many good works projects.

3) stay Curious and InformedThe best litigators I know never stop learning. They keep lists of recommend-ed books. They read professional publi-cations. They read magazines. They find podcasts and audiotapes that interest


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them. They seek a variety of perspectives on world events. They stay curious and informed.

How about you? Why not shake things up this week with a new learning experi-ence? Start a new book on something you know little about. I might recommend Moonwalking with Einstein, by Joshua Foer, a book about the art and science of memory. If you consider yourself political-ly progressive, spend some time with Fox News. If you consider yourself conserva-tive, try MSNBC. Check out Google News online. Pick up an issue of The Economist magazine and read what’s going on in other parts of the globe. For college-level audio courses on myriad subjects, check out the website thegreatcourses.com.

The Section of Litigation offers you ex-tensive learning resources. Our website gets 40,000 visits a month from litigators looking to hone their skills. If you have not tried the website recently, check it out when you finish this column at amer-icanbar.org/groups/litigation.html. Our website is full of practice tips, publica-tions, how-to video clips, podcasts, and more, all designed to make you a better lawyer. Did you know there is an app for the Litigation journal you are reading? Download the app for Apple or Andoid and finish this magazine on your porta-ble device.

4) When You Don’t Know, say soThe best lawyers I know are the quickest to admit when they don’t have the answer to a question. They say, “I don’t know the answer to that off the top of my head, but

I will find you the answer.” Then they go find it. Again, the Section’s website may help.

The best lawyers (and judges) are also not afraid to say when they don’t under-stand an argument. They say, “Wait a min-ute. I was with you right up to the point where the contract was signed, then I lost you. Let’s start from there and go through it again.”

Clients, judges, and other lawyers all appreciate and admire this brand of can-dor. It bespeaks close listening, self-con-fidence, and a desire to get it right.

5) The Best Litigators share What They KnowThe best litigators I know are happy to share their experience. They have a sense of responsibility to our justice system and to our profession. That’s one reason more than a thousand top litigators—outside counsel and in-house counsel alike—at-tend the Section of Litigation Annual Conference every spring. They come to sharpen their skills and to share best practices.

Why don’t you join them? Mark your calendar right now to attend the

next Section Annual Conference at the Phoenician Resort in Scottsdale, Arizona, April 9–11, 2014. You will come away a bet-ter lawyer.

In the meantime, if you are a seasoned litigator, I encourage to take 30 minutes this week to start a discussion with a younger colleague about the best lawyers you encounter and what makes them so. Your list of traits may differ from mine, and that’s great.

If you are a younger lawyer, I encour-age you to reach out to a litigator whose skills you admire and ask for a sit-down to discuss her or his perspective on the makeup of best litigators. You don’t have to know this lawyer, just call. I will be surprised if you don’t get an appointment. That’s how most best lawyers work.

No matter what your level of profes-sional development, I hope you will ex-plore broader use of the resources of the Section of Litigation. The Section’s ben-efits for members are vast, all aimed to help you become your best.

Finally, I am interested in what traits you admire in the best lawyers you know. Let me hear from you, and we can share the results. My email is [email protected]. q

The best litigators seek out opportunities to meet new people and to work in groups.

Free Litigation Journal App

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Android:http://www.appbrain.com/app/litigation/com.texterity.android.Litigation

Summer 2013 Spring 2013

Winter 2013 Summer/Fall 2013


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h o n . p aT r i c k J . w a l S h

The author is a magistrate judge in the u.s. District Court for the Central District of California.

From the Bench

Over the past 200 years, litigation in fed-eral courts has continually changed. The greatest change has taken place in the past 25 or 30 years. During this period, we have seen the almost total disappearance of civil trials in federal court. Trials have been largely supplanted by motions prac-tice and settlement. But lawyers have not responded to this change and still con-duct pretrial as if their cases are going to trial. I think that is a mistake, and in this article I offer suggestions as to what liti-gants and courts can do to conform their practices to the present-day realities of civil litigation in the federal courts.

In any given year in my district, the Central District of California, about 14,000 civil cases are filed. Yet, fewer than 70 civil cases are tried. When you account for those cases that are not des-tined for trial from the start—for example, Social Security and habeas corpus cas-es—it becomes clear that less than one percent of the civil cases that could go to trial actually do. What this means is that the work of the district courts is, more

and more, becoming the management of pretrial practice, including discovery, fol-lowed by settlement or dispositive motion. I resolve on average about one discov-ery motion per week. Assuming my col-leagues in the district are doing the same, this means that more than 1,200 discovery motions are decided in our court every year. As you might expect, some of these are com-pletely frivolous; others have some merit but, in my view, should have been resolved by the parties short of a motion; and the rest, a small number, involve difficult issues that require the court’s help to resolve. Often when addressing these motions, I wonder out loud whether the lawyers have taken into account that they are spending large amounts of time and money to pursue a discovery motion—and, they hope, obtain discovery—in a case that will in all likeli-hood be disposed of short of trial. It’s not that discovery doesn’t have relevance for settlement or motions practice. It does. But the scorched-earth practice many lawyers employ, attempting to discover “everything” without regard to cost and aggressively

r eThinKing CiviL LiTigaTion in FeDer a L DisTr iCT CourT

litigating when production is not forthcom-ing, seems inconsistent with the goals of the civil rules—the just, speedy, and inexpen-sive resolution of the case—and what one as-sumes is the client’s goal: obtaining the best possible result for the least amount of money.

needless Discovery Battles

The modern rules of civil procedure are aimed at eliminating discovery battles. Rule 26 requires the parties at the outset of the case to voluntarily disclose the witnesses and the evidence that they intend to rely on in their case-in-chief. The parties are also required to supplement disclosures in a time-ly manner when new information becomes available. Plaintiffs are required to set out their damages and explain the bases of their calculations. Rule 26 also requires the par-ties to exchange information regarding their experts and produce the experts’ reports.

In my view, one of the biggest reasons there are so many unnecessary discovery motions is because lawyers routinely fail to honor their obligations under Rule 26. Often, when reading a motion to compel, I realize that the information the moving party seeks in the requests for production or interrog-atories is information that was supposed to have been voluntarily produced under Rule 26 at the outset of the case but wasn’t. So what can be done about this? How can we reduce the costs of litigation and the bur-den on the courts to resolve these discov-ery motions? Buried in Rule 37(c) is one an-swer. This section provides that if you don’t identify critical documents or witnesses in your Rule 26 initial disclosures, you can’t use them in a motion or at trial (with cer-tain exceptions). I don’t think most lawyers know that this provision is in the rules. (It really should be moved to Rule 26.) To fix this problem, courts could include this pro-vision in bold in the initial order. The order could also provide that, if the parties do not voluntarily disclose the information, they will not be allowed to use it. There is no doubt that this would encourage greater


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compliance with the voluntary disclosure requirements. After all, what’s the use in having great evidence if, because you failed to disclose it, you can’t use it? Although Rule 26 does not apply to criminal cases, there is a similar rule in the Federal Rules of Criminal Procedure that does: Rule 16, which also contains a provision for barring evidence that is not turned over as required. Having been a prosecutor, I can tell you that this provision incites fear in the hearts of pros-ecutors who don’t want to find out midtrial that the powerful evidence or the compel-ling witness that they were about to present will not be allowed because there was no Rule 16 disclosure.

Another way to reduce needless discov-ery motions is for the lawyers to think about compromise in the discovery phase. Many lawyers, it seems, think that the only time they should compromise is when they are settling a case. I disagree with this senti-ment. Lawyers should be thinking about compromise at every stage of a case, in-cluding the pleading stage, discovery, and motions work. For example, when opposing counsel fails to respond fully to interroga-tories, rather than file a motion to compel, see if opposing counsel will agree to allow you to depose the client for more than the seven-hour period allowed under the rules. This might allow you to obtain the informa-tion that you hoped to receive in the written discovery without filing a motion. By com-promising, you may not get everything you want, but you will probably get everything you need, and that is what discovery should be aimed at. Further, by compromising, the parties save time and money, and the law-yers and the judges can focus on the issues that really matter in their cases.

electronically stored information

Another area that spurs discovery litiga-tion is electronically stored information. I often handle discovery disputes in which it is clear that the lawyers are not really sure

of the nature and extent of the electronically stored information or how it can or cannot be retrieved and used. Lawyers need to be versed in technology if they are going to be successful in discovery. If they are not, they should find someone in their firm who is and bring that person into the case for the discovery phase. Because I find that the lawyers are often unable to adequately dis-cuss discovery of electronically stored data, I often require them to bring the client’s in-formation technology person to the hearing or have that person available by telephone to explain what the company is capable of retrieving and the time and costs that would be involved in doing so.

The biggest problem I see with elec-tronic discovery is that lawyers are using 20th-century technology—that is, obtain-ing all of the documents, organizing them in folders, and trying to read and digest them—to address 21st-century produc-tion. A 10-gigabyte thumb drive can hold as much as 8,947,840 pages of data. I don’t believe it is possible to organize and di-gest even this relatively small amount of data in the limited time available in most cases. Instead, what lawyers should be do-ing is using 21st-century computer tech-nology to sort through and organize the electronically stored information. Their goal should be to have the computer sift through the millions of documents and distill and organize the hundreds or thou-sands of documents that are critical to the case, which the lawyers can then be-come familiar with. One method to do this, the one most popular today, is keyword searching. Most of us are familiar with keyword searches because we use them

for legal research on Westlaw and Lexis or when searching for documents on our computers. There are problems with using keyword searches, however; they some-times miss important documents and, more often, capture many irrelevant documents that have to then be analyzed.

A better method for searching large da-tabases is predictive coding. In predictive coding, lawyers review and analyze a small sample of documents in a case and identify what is relevant. That information is then entered into a computer software program that applies algorithms to the universe of documents to determine which are most likely to be most relevant.

Oftentimes, counsel simply refuse to employ these search methods to locate the relevant documents and insist instead on ob-taining “everything” in discovery. In these cases, I often employ cost-shifting to temper their demands. Thus, for example, where production of everything will cost $100,000, I order production contingent on the mov-ing party paying $50,000 to the producing party in advance of production. To date, the moving party has always reconsidered its re-quest and come back asking for significantly less, realizing, it seems, that they don’t really need everything.

In an age of more and more civil filings and fewer and fewer trials, litigants and courts need to focus on the task at hand: moving cases from complaint to discovery to settlement or motion as efficiently and cost-effectively as possible. The most cost-effective way to conduct discovery is for both sides to adhere to the mandates of Rule 26 and voluntarily disclose all important in-formation. Courts should insist that this rule be followed and impose sanctions when it is not. If they do, we will see a reduction in the number of unnecessary discovery motions. As for electronically stored information, the day of reading and digesting every docu-ment in a case is behind us. Practitioners need to embrace 21st-century technology and trust that it will provide them with the best chance of obtaining the most critical information at the lowest cost. q

Lawyers still conduct pretrial as if their cases are going to trial; i think that is a mistake.


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p r i V i l e g e

who is the Client in the Closely held Corporation?e d n a S e l a n e p S T e i n

The author, an associate editor of Litigation, is

the author of Attorney-Client Privilege and the

Work-Product Doctrine, Fifth Edition, published

by the American Bar Association.

You represent a closely held corporation. Whom do you represent—the corporation or the chief operating officer who owns all the shares?

Lawyers! No wonder ordinary mortals find us exasperating.

Lawyers get hired and paid to worry about things no one else expects to, or much less wants to, worry about. Just imagine what your client would think if

you voiced these dark-of-the-night wor-ries: “I thought you were my friend! I thought I could rely on you to solve my problems for me, not to create ones where none exist.”

Let’s assume there is a lawsuit, and the chief executive officer (CEO) is being de-posed. He is asked, “When you had your conversations with the lawyer, was she representing you or was she representing the company?” The CEO answers, truth-fully and perplexedly, “I never thought about it.”

So is the attorney-client privilege safe? It probably is. The default assumption with respect to the privilege is that it is the corporation who is the client. But to shift that assumption, courts apply what are known as the “Bevill factors” before they will set aside the default option. In re Bevill, Bresler & Schulman Asset Mgmt.

hea DnoTes

Illustrations by Sean Kane

Corp., 805 F.2d 120, 125 (3d Cir. 1986). The Bevill factors are (1) that the corporate employee sought legal advice, (2) in an individual rather than a representative capacity; (3) the attorney, aware of the potential conflict of interest, gave the advice sought; (4) the conversation was confidential; and (5) the substance of the conversation did not involve corporate matters.

The problem with the default assump-tion in the context of the closely held cor-poration is that the CEO probably consid-ers, correctly, the closely held corporation to be an “asset” he owns. You, The Lawyer, are hardly likely to stop a conversation by stating, “Before you ask for my legal ad-vice, we have to decide whether you are consulting me individually or as CEO of your company.” Your client would prob-ably think he needs a new lawyer.


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Illustrations by Sean Kane

Even though in privilege law the de-fault option is that the corporation and not the individual owner of the corporation is the client, courts will look to the follow-ing questions:

1. Whom did the lawyer think he was representing? It is the lawyer’s un-derstanding and not the client’s that is dispositive. Therefore, do a mental check. Is there a potential conflict of interest between what the CEO wants and the company needs?

2. Who is paying the bills? Is it the owner/CEO directly, or is it the cor-poration? If there is good reason to be certain that the CEO is deemed the primary client for privilege pur-poses, have the CEO pay the legal bills rather than expensing them through the corporation.

3. Who is consulting with the lawyer? Is it only the owner/CEO, or are con-sultations on corporate matters be-ing held with other employees?

The genius of the common law is that it is not “theoretical” and code bound. It is not impervious to how business is con-ducted. Therefore, even where the com-munications with counsel are on the is-sue of the individual officer’s personal rights and potential liabilities, the CEO of a closely held corporation may be able to invoke the privilege. He or she may be the only officer of the company who can successfully do that. In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001); In re Grand Jury Proceedings, 156 F.3d 1038, 1041–42 (10th Cir. 1998).

Stay alert for situations where a poten-tial conflict of interest arises. Does the patri-arch want to give up the reins of control and bring in family members to help him run the company? The question of who is the client and whom does the lawyer represent needs to be squarely faced. Consider engag-ing separate counsel to represent potentially conflicted interests, just as you would if you were drafting a prenuptial agreement. Do

not rely just on a waiver signed without in-dependent representation.

Common questions—Who is the client? Who can assert or waive the privilege?—arise most often when criminal activity by the CEO has occurred. Then the testimony of the lawyer as to whom he or she con-sidered to be the client—the CEO or the corporation—is likely to be dispositive.

The issue of who may raise and waive the privilege also arises in the context of bankruptcies. It is the corporate trustee in bankruptcy and not the CEO of the de-funct corporation who has the right to as-sert or to waive the privilege. In the bank-ruptcy context, closely held corporations do not differ from publicly held corpora-tions when it comes to asserting or waiv-ing the privilege.

But rest easy. There must be thousands of situations in the United States where the CEO of a closely held company seeks legal advice without the question of who is the client ever being confronted. Yet, there are precious few cases of the privilege being litigated in the context of the closely held corporation, although in our society we can safely make the assumption that what is problematic will find its way into litigation. q

f i r S T - T i M e l a w y e r

Leading your way Through Cross-examinationk e l l e y b a r n e T T

The author is a litigation partner at Frantz Ward,

LLP, Cleveland.

Cross-examination can be the most thrill-ing and anxiety-provoking phase of trial. The cross-examining lawyer stands up. The witness’s chest tightens. The jury leans forward, waiting for the hammer to come down.

Is this an exaggeration of what really happens? Perhaps. But there’s no dispute that a successful cross-examination can deflate your opponent’s case. Aspiring trial lawyers must master this skill before that dramatic moment arrives.

As trial looms near, you’ve been as-signed the job of cross-examining a wit-ness. You did your homework, and you know everything about the witness and the witness’s relationship to the case. Now what?

Prepare a list of the major points you want to make with the witness. For exam-ple, if you’re cross-examining a witness to a car accident who testified that your client ran a red light, maybe you want to show that the witness isn’t sure what he saw be-cause it was dark and he wasn’t wearing his glasses.

With your punch list ready, remember the most fundamental tip: Lead, lead, lead. Leading questions are designed to elicit a yes or no answer, essentially allowing you to testify while helping you control the witness. Control is crucial to an ef-fective cross.

How do you ask a leading question? For starters, as a general rule, don’t ask a question if you don’t know the answer. And don’t use such words as “describe,” “ex-plain,” “why,” or other words that invite a narrative response, because you risk losing control and eliciting damaging testimony.

Ask short questions. A good rule of thumb: Elicit just one fact per question. Let’s stick with the car accident example. You want to show that the witness isn’t sure what he saw, so you might think of asking, “You’re not sure what you saw that night because it was dark and you weren’t wearing your glasses, right?” Instead, try this:

You usually wear glasses when you drive?

Your glasses help you see?You were driving that night?It was dark?You were driving without wearing your

glasses?


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Asking one fact per question gives the witness little wiggle room. Also, getting several “yes” answers puts the witness in the habit of agreeing with you and es-tablishes a smooth, confidence-inspir-ing rhythm. But resist the temptation to finish your point with one question too many, such as, “So, you aren’t sure what you saw?” Chances are the witness won’t agree with you. And you don’t need to ask that question because you can argue that

conclusion in closing argument based on the points you already established.

How should you start your cross-examination? Avoid spending the first minute introducing yourself, asking the witness to speak up if a question is un-clear, or exchanging pleasantries. This is wasted time.

Instead, politely launch right into your cross. Start on a high note with a positive point the witness can’t refute. If you’re cross-examining a defense expert, may-be your first point is that the expert is a

T r i a l p r a c T i c e

The next step?c h i p b a b c o c k

The author is with Jackson Walker LLP, Houston.

The lawyer considered his next step but hesitated. It was dark, his eyesight was failing, and he feared there was a curb hidden beneath the snow. If he stumbled and fell, he wondered, could he get an an-kle replacement to go with his hips and (left) knee? Plus his hearing was failing.

“I might not hear the snowplow and might get run over,” he thought.

It occurred to him, and not for the first time: “Should I still be trying lawsuits?”

He weighed the pluses and minuses. First of all he loved it! Simply loved it. He never felt more alive than when he was in the courtroom. And so far, judging by results, he was still at the top of his game. Jurors loved him, and his cross was still sharp—at least it felt that way to him.

But there was the time commitment. He had always prepared, prepared, pre-pared. Was there more to life than 2,400 billable hours a year? What was he

hired gun. Of course, you won’t ask, “So, you’re a hired gun?” If you do, you’ll get a “no” answer and an objection. You’re better off asking the following questions:

The defendant retained you?To give an opinion in this case?The defendant is paying you $450 per

hour?That includes your testimony today?Point made. Move on to the next point.

And remember to end on a high note, too.

That way, the last thing the jury remem-bers about your cross-examination is that the witness agreed with you.

What about the evasive witness who won’t answer your specific question? You could ask the judge to instruct the wit-ness to answer your question, but the jury might think you’re a tattletale. Consider this approach: If the witness goes off on a narrative tailspin about his cruel supervi-sor when you ask “You were asked to re-sign?,” repeat your question, verbatim. If that doesn’t work, politely say, “I’m sorry,

sir, maybe my question wasn’t clear,” and ask the question again, verbatim. If that doesn’t work, ask: “Is that a ‘yes’?” Or:

“I’m sorry, sir. I’m confused. Were you asked to resign or not?” No matter what, don’t give up, and always be polite be-cause juries don’t like disrespectful law-yers. Even if the witness doesn’t answer your question, you’ve won because the jury will see that he is being evasive.

Finally, remember the old saying: Quit while you’re ahead. Although it’s tempt-ing to press ahead when things are going well, once you’ve made your major points, sit down! Don’t risk eliciting damaging testimony and weakening the strong points you made.

With these tips and a little luck, you’ll lead the way to a winning cross. q


11

were over. A month later the lawyer died in the office.

But the lawyer also recalled more up-lifting stories. A legendary trial lawyer at the firm, full of zest and life, one day hap-pily declared that he was quitting and that he and his wife were going to travel the world, which they did, for five years, be-fore he died. Another partner is still going strong, trying complicated lawsuits now well into his seventies.

The lawyer thought about this all the time. His firm was no help; it had no man-datory retirement age. In the end he de-cided to kick the can down the road. “I’ll look at this again in three years,” he told himself, and he took the next step.

He looked down again at the curb. He navigated it perfectly because he worked

out religiously. He felt strong and invigo-rated. After all, 65 is the new 40, he re-minded himself.

Most of this tale is taken from real-life conversations and experiences, though I am not the lawyer pondering retirement (I still have both original hips and knees). But “the next step” is a topic bedeviling many of my friends and colleagues. There is no right answer, of course, and it would be presumptuous to offer everyone the same advice. Except for this: Take the next step with vigor and confidence, and clear that curb. A snowplow may come barrel-ing down the street at any minute. q

missing? And sometimes in the court-room, he missed words because of his hearing and had to squint to see demon-stratives on the screen. Was he hurting his clients?

He recalled a conversation (actually two) with trial lawyers who had con-fronted the question he was now meta-phorically considering: the next step. He ran into one of those colleagues at a col-lege reunion. That lawyer was two years younger, trim, and in excellent health, and he had retired two years earlier from a large New York firm. “I was at the top of my field,” the retired lawyer said sadly. He missed being in the game.

“What I said mattered. People paid at-tention to me. I was relevant!! But now I don’t know. My phone doesn’t ring any-more; I can tell you that.”

Another conversation was with a world-class trial lawyer who was forced to retire by his firm. “I want to stay in the game,” he said, “but I’m not sure how. The kind of trials I was involved in require a lot of support, and I just don’t have that anymore.” His firm had a pension (good) and a non-compete (bad). This conversation, thousands of miles from the first one, had the same theme: “Tell me how I can stay relevant,” he pleaded.

The lawyer continued to think. The Dave Matthews song “Under the Table and Dreaming” ran through his head. How healthy is it to have your whole being wrapped up in your career, the lawyer wondered. If I quit and it doesn’t work, could I go back? Should I do it un-til I keel over? What if I am slipping in the courtroom? Who is going to tell me?

Back when the lawyer was a young associate, the head of the firm’s trial sec-tion took him aside and said, “You know, I am going to rely on my partners to tell me when I have to quit.” The young law-yer experienced a thrill as he was almost up for partner. Years later, the thrill was gone when he and other partners had to tell this lion of the bar that his days


12

g e o r g e g o p e n

The author is Professor Emeritus of the Practice of Rhetoric at Duke university.

on the Papers

So often in professional life—life in any profession—we exist in the minds of oth-ers only through our writing. They know us only through their acquaintance with our letter of application or publication or trial brief. The 18th-century French naturalist Georges-Louis Leclerc, Comte de Buffon (in an age before gender-free pronouns) put it memorably:

Writing well consists of thinking, feel-ing, and expressing well, – of clarity of mind, soul, and taste. . . . The style is the man himself. [“Le style est l’homme même.”]

Man or woman, it matters not: One’s writing style proclaims to a reader who and what the writer is, personally, mor-ally, and intellectually. It is of the utmost importance as a lawyer for your prose to proclaim accurately not only what is go-ing on in the case but also who and what you are. Because it will convey all these

whether you wish it to or not, it makes great sense for you to be in charge of that self-portrayal.

In eight previous articles in this se-ries, I have explained some of the details of what I call the Reader Expectation Approach to the language. To know whose story a sentence is, readers look to the grammatical subject; to know what actions are happening, readers look to the verbs; and to know what words are to be read with the most emphasis, readers look to the sentence’s stress position or posi-tions—the moments of full grammatical closure that are indicated by the presence of a colon, semicolon, or period. Here I will use this last expectation—that of the stress position containing the most stress-worthy information—to explore an exam-ple of what great negative consequences were produced by a political speechwrit-er’s stylistic habit falsifying the character of a major political candidate.

Here is a paragraph from a 1984

The sTyLe ProCL aims The L aw yer : you a r e w h aT you w r iTe

campaign speech by Walter Mondale, who was the Democratic candidate up against Ronald Reagan seeking a second term.

A. I have refrained directly from criti-cizing the President for three years. Because I believe that Americans must stand united in the face of the Soviet Union, our foremost adversary and be-fore the world, I have been reticent. A fair time to pursue his goals and test his policies is also the President’s right, I believe. The water’s edge is the limit to politics, in this sense. But this can-not mean that, if the President is wrong and the world situation has become critical, all criticism should be muted indefinitely.

Would this passage, in 1984, have made you want to jump out of your chair and find the nearest polling booth? Mondale was a long-term senator, respected by most of his colleagues on both sides of the aisle, moderate in his tone, and pleas-ant in his demeanor. And yet he lost that election by the largest electoral margin in U.S. history, carrying only his home state and the District of Columbia. Exit polls suggested that even a majority of Democrats felt Mondale was not strong enough to face up to the continuing threat posed by the powerful Soviet Union.

Why should this have been the case? All those voters did not know the man from long conversations with him or from a careful review of his voting his-tory. They knew him mostly from the few sound bites they heard from him on tele-vision. I suggest that it was sound bites such as this speech—not even written by him—that proclaimed his supposed weakness.

None of the individual sentences can be considered ungrammatical or intel-lectually vacuous; but the weakness of every single stress position suggested a political impotence that accorded with his overwhelming defeat.


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The stress position occupant of the first sentence emphasizes that our can-didate has done the action of refraining

“for three years.” Since that is exactly how long Reagan had been president, “three years” translates into “forever.” He might as well have said, “I have refrained direct-ly from criticizing the president forever. Vote for me.”

It is a strange claim to make. He continued:

Because I believe that Americans must stand united in the face of the Soviet Union, our foremost adversary and be-fore the world, I have been reticent.

The long “because” clause increases our expectation of a powerful resolution in the main clause to follow. When that main clause arrives, not only is it disap-pointingly anticlimactic, but it also fea-tures a stress position that once again highlights the candidate’s reticence. Putting the two sentences together, valu-ing the stress position occupants as the most important information, we get a strange message: “I have said and done nothing, forever.” Why should we vote for a man with this record? More telling-ly, why should we vote for such a man? (The style proclaims the man.)

In the third sentence, he makes a point that at first sounds forceful: “A fair time to pursue his goals and test his policies is also the President’s right”; but then in the stress position, he backs away with the limp qualification “I believe.” Did he want his claim to be taken as mere “belief”?

If that were a sole instance of such a rhetorical retreat, it would not define his character; but he does the exact same thing in the next sentence. “The water’s edge is the limit to politics,” he declares with some force; but he then undercuts it by ending the sentence with “in this sense.” Nothing ends decisively.

The final sentence of the paragraph, given this context, descends almost to the comical:

But this cannot mean that, if the President is wrong and the world situ-ation has become critical, all criticism should be muted indefinitely.

The negative verb (“cannot mean”) is so far separated from its resolving clause (“all criticism should . . .”) that its negative quality is undermined. As a result, we get a stress position strangely filled with “all criticism should be muted indefinitely.” It almost produces this comical argument: Because all criticism should be muted in-definitely, you should vote for me, because I have made a good start on that, having said and done absolutely nothing, forever. Of course, that was not his intended argu-ment; nor is it a logical interpretation of his words. But because it is a compilation of everything he has put into his stress positions, it subliminally becomes part of his message.

The weak stress position poisons every single sentence. Potentially important ar-guments for his side appear, but never in the stress position, where they would have been most noted and most valued. The speechwriter’s prose presents the image of a man who cannot see things to their conclusions, who cannot stand up for his own insights, who is, in short, lacking in power and force—and will not be able to stand up to the Soviet Union.

Am I suggesting that if his speechwriter had only filled all the stress positions with the important material of the sentence, his

“style”—that is to say, his character—would be so transformed that he would appear a man of strength and force and insight? Yes. Here is a revision of this passage in which something of import has been moved into every stress position.

B. For three years, I have refrained from directly criticizing the President of the United States. I have been reti-cent because I believe that Americans must stand united before the world, particularly in the face of our foremost adversary, the Soviet Union. I also

believe a President should be given fair time to pursue his goals and test his policies. In this sense, politics should stop at the water’s edge. But this cannot mean that all criticism should be muted indefinitely, no matter how wrong a President may be or how critical the world situation may become.

The style of this revised paragraph presents us with a man who is a tower of strength, a man of clear vision, a man who can lead us all forward. A forward lean is created primarily by each sentence’s leaning forward, as the structural ex-pectations would have us do, toward the stress position.

I am not saying he would have won; but he would not have lost by such a huge margin. In looking at several others of his speeches from that campaign, I have not found a single sentence with a strongly filled stress position. The weak stress po-sition was a major component of his style—rather, of the style he was given.

Through this faulty stylistic habit (the weakly filled stress position), the speech-writer essentially created a literary char-acter, lacking in strength, and falsified the character of the actual candidate. We are all creatures of rhetorical habit; and the sum of all our rhetorical habits becomes the identity of the character we show to the reading world.

How are your stress positions? q

we are all creatures of rhetorical habit.


14

A Road Map for Document Preservation

Keeping the Nightmares at Bay

M i c h a e l c . M i l l e r a n d J e f f r e y M . T h e o d o r e

Michael C. Miller is a litigation partner with steptoe & Johnson LLP, new York City.

Jeffrey M. Theodore is a litigation associate in the firm’s Washington, D.C., office.

We have all heard the nightmare scenarios. The government serves a subpoena on a company in connection with a new reg-ulatory investigation, and while counsel is being retained to handle subpoena compliance, a senior executive starts delet-ing potentially troubling emails. Or just days before a corpo-rate employee is scheduled to testify at his deposition in a large commercial dispute, he remembers that he has a box under his desk at the office and a thumb drive at home—both containing documents relevant to the litigation that no lawyer has reviewed. Or it turns out that the new French subsidiary of your rapidly expanding multinational corporate client, which is embroiled in a sweeping antitrust lawsuit, has not fully implemented cor-porate polices for document retention.

In a world where meaningful sanctions can readily flow from a failure to preserve documents relevant to a lawsuit, these sorts of nightmare scenarios do keep lawyers awake at night. Indeed, the Federal Rules of Civil Procedure contain an entire provi-sion—Rule 37—dedicated to sanctioning counsel and clients who fail to comply with their discovery obligations. That is on top of each district court’s well-established, inherent authority to impose sanctions for discovery violations, including destruc-tion of evidence.

Although no document retention policy can prevent every po-tential discovery mishap, counsel might consider employing the

basic strategies discussed below to keep these nightmares at bay.Counsel and client must act to preserve evidence as soon as

they are on notice of its relevance to current or future litigation. See, e.g., Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). Although it is sometimes not clear what constitutes notice, typi-cally the more difficult question is fashioning the right action plan once notice has been received.

Finding the right action plan is particularly challenging when the client does not employ a sophisticated document manage-ment system or have recent experience with discovery-intensive litigation. For those clients, the conversation about document preservation can be sobering. It starts with Federal Rule of Civil Procedure 34 and its broad view of discoverable documents. Clients are sometimes surprised to learn that they need a strat-egy for preserving relevant writings, drawings, images, or re-cordings as well as any other sort of data or data compilations stored in any medium from which information can be obtained either directly or via translation into a usable form.

Further complicating matters with clients, regardless of the sophistication of their operations, is the undeniable fact that the volume of electronically stored information—and the number of devices it is stored on—has exploded. (For a comprehensive treatment of data collection from mobile devices, see Michael R. Arnold’s iWitness column on page 53 of this issue.)


15

The obvious first step is to issue a litigation hold letter to the client promptly. It is important that this letter provide enough information to permit the client’s employees to identify what documents they need to preserve and how to go about preserv-ing them. It is equally important to get this letter into the hands of the employees who are likely to have documents relevant to the dispute. Because these employees often play very different roles in a large organization and, as a result, touch on a major dispute in a variety of ways, it sometimes makes sense to tailor the litigation hold letter to provide more meaningful notice to these different categories of employees.

Issuing a litigation hold letter is not just a great idea; the fail-ure to distribute such a letter may lead to sanctions when docu-ment preservation efforts do not work. The Southern District of New York has described the failure to issue a litigation hold letter as “grossly negligent.” Heng Chan v. Triple 8 Palace, Inc., No. 03-CIV-6048, 2005 U.S. Dist. LEXIS 16520, at *7 (S.D.N.Y. Aug. 11, 2005). At a minimum, it is “one factor in the determina-tion of whether discovery sanctions should issue.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012). Whether or not a litigation hold is itself required, the fact that one has been issued will put a party and its counsel in a much better position in future months if accused of failing to preserve documents.

But mere issuance of a litigation hold does not exhaust the obligations of an outside lawyer. Counsel also must supervise the document preservation process and seek to ensure that client

personnel comply with the litigation hold. This supervisory func-tion was always good practice, but a series of recent decisions has given it new importance.

recent relevant Decisions

The seminal case is Zubulake v. UBS Warburg, in which Judge Scheindlin issued a series of opinions finding both UBS and its lawyers culpable for permitting the destruction of key docu-ments in an employment litigation. Judge Scheindlin emphasized that it is “not sufficient” to issue a litigation hold and expect cli-ent employees to comply. Rather, counsel must take “affirmative steps” to monitor and ensure compliance.

In our experience, the client’s general counsel is typically a re-liable and natural ally in connection with fashioning and taking these required affirmative steps. General counsel tend to know an enormous amount about the client’s paper and electronic data systems, and can help outside counsel get up to speed and quickly develop an appropriate document retention strategy. They also run the risk of sanctions if the document retention process fails. Courts have gone so far as to sanction in-house government counsel for fail-ing to meet their preservation obligations, in particular for failing to follow up to ensure that employees complied with preservation instructions that they had received. See, e.g., Swofford v. Eslinger, 671 F. Supp. 2d 1275 (M.D. Fla. 2009).

Illustration by Phil Foster


16

The Zubulake decisions offer a good roadmap for the required affirmative steps. For example, as these cases suggest, it is often helpful to reissue the litigation hold letter. This way it stays fresh in the minds of employees who are busy with other matters. In addition, it often makes sense to identify and speak with key employees who are most likely to have relevant information. This helps to ensure that these key document custodians know about the litigation hold and are complying with it.

electronic Data Loss

Other very useful affirmative steps involve the handling of electronic data and, in particular, the risk that, in the ordinary course of business and for purely innocent reasons, electronic data might be lost or overwritten. We have seen clients take sensible steps to protect against this by segregating and taking physical custody of items such as thumb drives and backup tapes that contain critical information.

Thumb drives, in particular, are dangerous devices from a preservation perspective. They are small, easily lost or over-looked, and infrequently labeled to identify their contents. At the same time, the computers to which they have been connected will retain registry entries recording their use and sometimes even the transfer of files with relevant-sounding file names. Experience shows that this combination can give rise to a pow-erful spoliation motion.

Backup tapes are less often lost, but clients usually have data retention policies that overwrite backup tapes on a regular cycle. This risk can be mitigated by working with the client to identify accessible backup tapes likely to have relevant information and segregate them so that the data they contain are not lost.

Similarly, active employee file spaces, such as computer desk-tops or personal folders, are locations from which files are com-monly lost. Rather than try to micromanage employees’ use of their computers, a good practice is to instruct employees to make copies of their active files and preserve them separately.

Other helpful ways to minimize the risk that a client’s

employees will not preserve documents is to obtain signed ac-knowledgments from the employees of their obligation to pre-serve documents. And counsel should follow up to ensure that employees have actually complied. There is no substitute for continued monitoring. Most important, counsel should docu-ment every step so that if some documents are lost, counsel can show that they met their obligations and that the loss of data occurred despite the more than reasonable efforts made to pre-vent that from happening.

Large corporate clients can present an additional set of chal-lenges. They often have a significant number of employees and very large, sometimes disparate computer systems that store enormous amounts of data across a far-flung range of servers and devices. They have preexisting information technology policies, structures, and bureaucracies. Sometimes the corporations are a product of a wave of mergers and acquisitions that result in decentralized computer systems, inconsistent document preser-vation cultures, and different legal structures governing issues such as data privacy. Even under the best of circumstances, the data retention systems are often not designed with litigation and litigation-specific retention concerns in mind, which may hin-der development of a litigation-neutral process for preservation.

The reasonableness Test

Luckily, the test for both a client’s preservation obligation and counsel’s monitoring responsibilities is one of reasonableness. It has been recognized as crippling to require large corporations to preserve every email, shred of paper, and so forth based on the initiation or even mere anticipation of litigation. Thus, rea-sonable recycling of backup tapes is acceptable as long as you make efforts to ensure that those most likely to contain relevant material are preserved. And so-called inaccessible backups are often excluded from the analysis (though it is wise to preserve even inaccessible backups that are likely to contain relevant data and fight the battle over data reconstruction and produc-tion at a later time).

As to our responsibilities as counsel, Judge Scheindlin herself emphasized in the fifth of her Zubulake opinions that, “above all, the requirement must be reasonable.” Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 433 (S.D.N.Y. 2004). We are not “obliged to monitor [our] client[s] like a parent watching a child.” Ultimately, the client bears responsibility for preserving documents. We must ensure that the client understands the obligation and is following a reasonable plan to carry it out.

The first step is to take the lay of the land. We have found it helpful to make an immediate evaluation of existing corporate retention policies and practices to determine their adequacy. This permits a quick assessment of what is being retained at the

Courts are split on the bad faith requirement when relevant documents are destroyed.


17

very moment and what needs to be changed so that appropri-ate documents are preserved. This initial evaluation also can form the basis for an efficient, successful preservation strategy. Remember that sophisticated corporate retention programs do not only destroy documents; they preserve tremendous amounts of material. Although they often require modification for litiga-tion purposes, existing corporate policies can form the backbone of a preservation strategy.

Not surprisingly, on occasion, clients’ actual practices regard-ing document retention diverge from their stated policies. This is particularly true when clients are not regularly involved in litiga-tion. Although a corporate retention policy is an excellent way to demonstrate reasonableness and good faith in document preser-vation, document destruction that results from noncompliance with corporate policy will be invoked as evidence of bad faith and intentional spoliation, or at a minimum gross negligence.

The next key step is to conduct a high-level, enterprise-wide assessment of all systems and software to determine what should be preserved and what is being preserved under existing reten-tion procedures. The key is to identify those areas of large-scale corporate information technology (IT) systems where relevant documents are likely to be found. This may require interviews with key client personnel as well as targeted keyword searches to determine where responsive documents are found.

On rare occasions, counsel is confronted with evidence that an employee is trying to delete emails or dispose of documents to frustrate an investigation or conceal facts in a litigation. Obviously, this information requires prompt action to stop the document destruction by, at a minimum, cutting off the em-ployee’s access to the computer system and paper documents. It also requires prompt efforts to identify methods of restoring or retrieving these documents. And, depending on the circum-stances, this development may trigger obligations on the part of the company to report these events to the court and regulators.

working with iT Departments

Throughout this process, coordination with the client’s IT de-partment is critical. We find it helps to speak directly with re-sponsible IT personnel who are likely to have the best knowledge regarding the location of critical electronic data. They will know the most about the actual operation of the client’s document re-tention policies and the preservation or destruction cycles that apply to discoverable material.

Large corporations often present unique challenges to docu-ment preservation, but just as often they offer state-of-the-art IT departments that can make document retention a vastly more manageable process. The systems run by these companies can be efficiently deployed to accomplish preservation tasks without

undue additional costs to the client’s legal department or inter-ference with the work of key client employees. In modern cor-porate IT systems, there also will be access to the vast bulk of the information at issue. We live in a world of shared network folders where employees’ own personal desktops are mirrored on servers so as to be accessible from multiple devices. That al-lows IT professionals to make backups of key employees’ active files and desktop spaces without depending on the employees’ own preservation efforts. The IT department should also create images of collaborative online workspaces, such as Microsoft’s Sharepoint, that are increasingly the repository of large amounts of relevant material. And, of course, the IT department is best positioned to make archives of key employees’ emails and sus-pend routine email deletion.

All of this can be done in a way that ensures that critical metadata are preserved. Ideally, the IT department should be asked to image the relevant drives, spaces, and folders, rather than simply copy the files contained in them.

We have found it helpful to have segregated repositories cre-ated by the IT department for data that have been preserved in this manner. This approach secures relevant information and reduces the likelihood of accidental loss or deletion. Creation of a repository can also avoid duplication of effort in subsequent document production efforts. Along these lines, the depository can also include the results of customized searches. Although there is no need to review the documents during the initial pres-ervation process, performing searches for key terms and en-suring that the resulting documents are not lost go a long way toward showing good faith in preservation.

The nightmare scenarios described at the beginning of this article do occur, despite the best intentions of client and coun-sel. The steps counsel and client take once they are on notice of potential or actual litigation can have a significant effect on whether those scenarios result in meaningful sanctions.

It is important to know, of course, the applicable standards for evaluating spoliation in your court. They vary widely. For ex-ample, the courts of appeals are split on the question of whether bad faith is required to draw adverse inferences from destruc-tion of relevant documents. The Second Circuit has permitted courts to impose adverse inferences where spoliation resulted merely from a party’s negligence. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002). By con-trast, the Seventh Circuit requires bad faith before an adverse inference may be drawn. See Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008).

Whatever the applicable standard for sanctions, a well-documented, systematized preservation protocol implemented by the client’s IT department and supplemented by direct contact with key client employees is the way to approach document preservation. q


18

Winning Your Case Using

Visual Grammarf r a n k S o M M e r S a n d d a n r o a M

Frank sommers, an associate editor of Litigation, is with sommers and schwartz, LLP, san FranciscoDan Roam is the author of The Back of the Napkin

(Penguin 2009) and Blah, Blah, Blah: What to Do When Words Don’t Work (Penguin 2011).

We want to convince you that you need to start drawing free-hand sketches while you’re making your next oral presenta-tion—whether in the boardroom or in the courtroom. Have you ever felt that jurors seem to pay more attention when you are taking notes during an exam, be it cross or direct? When you page back through them and observe, “Well, sir, Mr. X told us that. . . ,” have you sensed that your notes became “their” notes and that they trust the information more?

People’s brains process visuals more immediately, more vis-cerally than our long-winded speeches. So using notes and, even more effective, simple pictograms to illustrate what you’re say-ing makes your message much more convincing to the listener.

Even if you aren’t an artist, “visual grammar” based on picto-grams you already know—stick figures, charts, graphs, timelines, maps, and flowcharts—allows any complex idea to be visually clarified through the use of only six elemental picture types: The portrait illustrates who and what, the chart illuminates numbers and quantifiable measurements, the map shows the spatial relationship of elements, the timeline clarifies temporal relationships, the flowchart makes causal relationships visible, and the visual equation summarizes the resulting lesson.

Let’s use a fact pattern we all know to see how drawings can help trial lawyers and other presenters win. We start with the earnest associate’s memo to the litigation partner. . . .

To: Partner

From: Associate, Intake

I interviewed H. Hare today, who has been widely featured (and derided) for his recent loss of a foot-race to T. Tortoise. Mr. Hare is a courier by profession and explains that, due to Tortoise’s having spread the story far and wide, he is now unable to get any new contracts. More interestingly, he contends that the story is false—that he lost, not because he loafed and dilly-dallied, but because he had to interrupt the race to help a key client. What’s more, he claims that Tortoise knew these facts when he started talking to the media after his “win.”

We may have a per se defamation claim, as the false-hoods injure Mr. Hare’s work ability, as well as an inter-ference claim. Tortoise’s new endorsement contracts will cover the verdict.

The trial team graphic designer adds the following:


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To: Partner

From: Trial Support Team

Re: Hare v. TortoiseI just saw the intake memo on the Hare case. I have a new trial graphics option that you should consider us-ing. Coincidentally, I had just reviewed a new book which argues that freehand drawings created by the speaker as “live” lecture notes are much more convincing than ei-ther oral presentations or, surprisingly, complex designer graphics.

Following are the usual trial PowerPoint slides I would make for this case juxtaposed with some sketches so sim-ple that you could draw them while you are presenting. Let me know what you think.

Each sketch represents one (and only one) of the six el-emental pictures from the 6x6 Visual Grammar illustrated above. I have identified each picture type as it appears in the narrative, along with the type of information it conveys.

1} PortrAitn Illustrates Who & What.n Used for clarification of people,

deliverables, and objects.

2} chArtn Illustrates how Many or how Much.n Clarifies number, measurement,

and quantitative comparison.

3} MAPn Illustrates Where.n Used for clarification of location,

overlap, and spatial relation.

hArE V. tortoiSE

“A lie runs the world round while the truth is putting on its boots.”

1. Ladies and gentlemen, this is a case about a blogger who thought he could say whatever he wanted and who destroyed our client, Mr. hare, as a result.

Illustrations by Frank Sommers

4} tiMELiNEn Illustrates When.n Used for clarification of sequence,

duration, and temporal relation.

5} FLoWchArtn Illustrates how.n Used for clarification of cause-and-

effect, liability, and complex flow.

6} EquAtioNn Illustrates Why.n Used for clarification of underlying

rule or “the moral of the story.”

V i S u a l g r a M M a r


20

2. Mr. hare is a tireless courier who uses his speed and agility to deliver critical items that your neighbors in the garden need to arrive quickly and efficiently.

3. Mr. tortoise, in contrast, has been lucky enough to parlay the sale of his first company into a life as a blogger who posts his opinions on the internet in the belief that they are valued.

thE PArtiESn Mr. H. Hare

◆ Security Courier◆ Speed and reliability◆ “Gets there before you send it”

n Mr. T. Tortoise◆ Flaneur, man-about-town◆ Blogger

▲ “The Steady View”▲ Wide circulation

thE PArtiESn Mr. H. Hare

◆ Security Courier◆ Speed and reliability◆ “Gets there before you send it”

n Mr. T. Tortoise◆ Flaneur, man-about-town◆ Blogger

▲ “The Steady View”▲ Wide circulation

thE cLAiMS

n Tortoise lied about why Hare lost◆ Claimed: loafing, careless◆ Reality: Hare stopped to help

n Result: Injury to Hare’s work

n Clients: “lazy and careless”

thE rESuLt

n Hare’s reputation smirched◆ “Lazy & Careless”

n Hare’s business damaged ◆ Courier’s fees dropped by 80%

4. Why are we here? Because Mr. t has been telling false tales about why he won the recent footrace between the two.

5. As a result, Mr. h’s business and reputation have suffered greatly.


21

6. this case arises from t’s challenging h to a footrace, after announcing that h had “lost it.”

7. the race was going to be two miles, with only the two of them participating.

8. the course was from the Big rock, across the creek, around the old Boot, and would finish at the old tree.

9. What happened? tortoise won.

thE FActS: 1

n T’s Challenge◆ Hare has lost it◆ Even I can beat him◆ He is hiding his disabilities◆ Afraid to race a tortoise

n H had no choice

thE FActS: 2

n Terms:◆ “Just two miles”◆ “Just the two of us”

thE FActS: 3

n The race course◆ Start at Big Rock◆ Cross the creek◆ Past Ant Hill◆ Around the Old Boot

n Finish at Old Tree

thE outcoME

n Tortoise won


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10. Why? Well, according to t, his opponent was lazy, stopped for a rest, and ended up taking a nap.

11. h, on the other hand, will tell you that he got a call from the Mad hatter, his best client. h made the requested delivery but lost the race.

12. h is suing for defamation. he has to prove that t made false statements, which he knew were false, and that those statements hurt him.

13. t made his statements on his blog, which has many followers. We will prove their falsity.

tortoiSE’S VErSioN

n My opponent was so arrogant that he: ◆ Stopped to eat◆ Took a nap

n While I continued, slow but steady, and won

hArE’S VErSioN

n Off to clear leadn Got a call from Mad Hatter

◆ Best client◆ Needed rush delivery to Tea Party

n Made the deliveryn Couldn’t catch tortoise

ProViNG thE cLAiM-dEFAMAtioN

n Publish fact statementsn Knowingly falsen Tends to injure ability to workn Actually damages work

thE PuBLicAtioN

n Tortoise knew the factsn Blogged to all and sundry


23

So there you have it, a taste of illustrative graphics to punch up your presentations. We’ve given you drawings that are a little

“aspirational,” a little more stylish, to give you an idea of how

simple it is to storyboard a theme. If you start with the basic “grammar” ideas listed above, you’ll find that communicating visually is not about being a cartoonist but about letting your hand diagram what’s already in your head.

For example, each time you wish to introduce a person into

the case, provide a simple visual representation (portrait). This will help the jurors keep in mind precisely who is being spoken about, even as many litigants and witnesses are introduced. Each time you introduce a measured quantity (distance, amount, speed, etc.), provide a visualization of the numeric data (chart). This will help jurors to see for themselves what the precise numbers mean. To clarify position and spatial information, in-clude a map. To sort out temporal sequences, draw a timeline. And last, illustrate apparent cause and effect by diagramming a simple flowchart.

Once you try it, you will find that using your own visual style to create these six elemental pictures will go a long way to-ward helping you clarify complex issues. More important, these simple flowcharts, graphs, and maps will find a ready-made place in your listeners’/watchers’ brains, too—to your benefit as an advocate. Remember: If you’re speaking, you should have a marker in your hand. Good luck. q

Communicating visually is about letting your hand diagram what’s already in your head.

14. h’s reputation has been damaged. Public comments range from “slacker” to “just too damn slow.”

15. We will also prove damages. h’s post-race income has dropped by hundreds of dollars a week.

rEPutAtioN dAMAGE

n Public reactions on the net◆ “Slacker”◆ “Lost more than a step...”◆ “Too slow for my business”

rEPutAtioN dAMAGE

n Public reactions on the net◆ “Slacker”◆ “Lost more than a step...”◆ “Too slow for my business”


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The Electric Kool-Aid Judgment Test

Making Your Papers Come Alive

f r a n k S o M M e r S a n d r o b b u n z e l

Frank sommers, an associate editor of Litigation, is with sommers and schwartz, LLP, san Francisco.

Rob Bunzel is with Bartko, Zankel & Bunzel, san Francisco.

Are we all, lawyers and judges both, modern-day Luddites? Although we may not be striding up and down our workplaces with crowbars smiting every workstation or laptop we see, we seem to be rejecting one of the best improvements that informa-tion technology offers our profession—the ability to sort rapidly through the huge mounds of paper we generate, in which we routinely drown juries and judges. We’re talking about putting together complex briefs, such as motions for summary judg-ment, with their exhibits from A to QQQ, using hyperlinks so that a reader (read “judge”) can see what the exhibit looks like without having to paw through two linear feet of paper and tabs.

Relax. We are not asking you to turn into R. Crumb and sub-mit graphic novels in lieu of briefs (see an example at http://bit.ly/17hC39y). We are, however, telling you that you are missing the boat if you don’t “electrify” your briefs by submitting to the court your chambers copy on a compact disc (CD) on which your elegant, Cartesian, linear brief is at least made more accessible by hyperlinking your exhibits to the text. Wouldn’t it be a relief to know that the judge was actually able to see and read that killer cross-exam that you think makes your summary judgment mo-tion a winner? (Or better yet, can click on and watch the video deposition segment itself?)

There are two ways to do this. One is to include the picture of the exhibit on the page of the brief itself. For example, here’s a

diagram inserted in a brief recently filed in California state court by the San Francisco firm Bartko, Zankel & Bunzel that sum-marizes the regulations affecting patient record confidentiality (see http://bit.ly/18WnA3K). It was offered as a graphic response to the plaintiff’s argument that there should be a private right of action attendant upon the loss of a laptop containing unen-crypted patient files. It replaced several pages summarizing and discussing these same provisions. It kills. The problem with this approach, as any rule-crazed litigator knows, is page limits. Embedding multiple exhibits eats up your page count. So you need a method to show the judge your killer exhibit, or exhibits, that doesn’t reduce the space available for your death-less prose explaining why those same exhibits give you the win.

The hyperlink solution

The solution is to embed hyperlinks in the text of your brief, which point to files containing the exhibits. The judge can click on the “Exhibit 4234” reference and see the self-same exhibit. Your brief loses only the space necessary for the exhibit refer-ence, not the entire document. Both the brief and a directory containing the exhibits are then submitted on a “chambers copy” CD (to the judge and to your opponents). Sound interesting?


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The author is a senior district judge in the u.s. District Court for the Eastern

District of Pennsylvania. He wishes to thank his clerk, Chad Cooper, for assis-

tance with this article.

S u a S p o n T e

a Judge Commentsh o n . b e r l e M . S c h i l l e r

Motions come in, accompanied by briefs. Responses come in. Replies come in. Occasionally, surreplies come in. Opinions go out. The cycle continues. Even in this age of electronic filing, the paper mountain that Frank Sommers and Rob Bunzel alluded to can be a virtually unscalable Everest to a busy judge. Add to that the hundreds, sometimes thousands, of pages of exhibits included with the briefs and busy judges may simply turn off their computers. Too often, lawyers include with their briefs every paper exchanged in discovery and every utterance cap-tured during depositions.

The briefs most helpful to me and my clerks in climbing the paper mountain include concise and well-reasoned legal arguments and guide me through the facts in a well-organized and thoughtful manner. Few things are more distracting than constantly flipping from a brief to portions of the record. So I would welcome any technique that will make it easier for me to parse the record.

Papers that come alive are an exciting proposition for a judge, but lawyers who wish to employ the tactics laid out by Sommers and Bunzel would be wise to heed a few point-ers. First, make sure the judge is willing to review the prod-uct you submit. I think briefs with hyperlinks are a great idea. Some judges might disagree or believe that it creates an un-fair advantage if only one side creates papers that come alive. Furthermore, as Sommers and Bunzel noted, this is largely un-charted territory not covered by local rules. There is no sense in delivering a package to chambers that will never be unwrapped.

Second, please exercise discretion when adding links to a brief. It is more useful to the court that lawyers embed a few links to key documents and testimony rather than bog down the brief in a sea of blue, underlined text. Over-linking strikes me as the electronic equivalent of providing the court with every piece of discovery collected during the litigation. Remember, a living brief is not an opportunity to evade page limits. A lawyer who over-links also runs the risk of having the key document overlooked amid the slew of exhibits al-ready highlighted. Select a few key exhibits that you want to highlight. For example, if you have the plaintiff making a key concession in a videotaped deposition, allowing the decision

(Continued on page 27)

How do you create links that do not fail when you put all the documents on a CD and send them to the judge? When you cre-ate a link to the key exhibit, unless you are careful the link is

“absolute,” meaning it always points to where the exhibit was originally stored; for example, “Frank’s hard drive on his San Francisco Computer/File 1.” So when the judge slots it into her computer in Chicago, reads the brief, and, mirabile dictu, actu-ally clicks on the link for that exhibit, she gets a message along the lines of “Can’t find link reference to (Frank’s hard drive in San Francisco)” because Frank’s computer is not part of her network.

What you need are “relative” references, meaning links that “move” along with the brief, so that when the judge puts your chambers copy CD in her computer, your links translate from

“Frank’s hard drive in San Francisco/Exhibit 1” to “The CD in the judge’s computer in wherever/Exhibit 1.” As a result of the

Illustration by Jon Krause


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relative link, the judge actually sees your exhibit and keeps read-ing, instead of taking your CD out of the drive and using it as a coffee mug trivet.

You can do this with Adobe Acrobat and the portable document format (PDF) files it creates. Chances are you already create them to use Pacer. Either your word-processing program creates them, or you give them to your secretary to scan using your copier, and you save them into a directory for uploading to Pacer. So you end up with several files: “Brief P&As,” “Exhibit 1,” and “Exhibit 2.”

To make the chambers copy CD we’ve been talking about, put all three PDF files—Brief P&As, Exhibit 1, and Exhibit 2—in the same directory: “Chambers Copy.” Then create links in the brief such that clicking on the link to Exhibit 1 produces that docu-ment. You also want to make sure that it’s easy for the judge to get back to the place in the brief where she left from. Finally, this magic has to work not only on your computer but also for the judge on another system.

There are two discrete steps: connecting the exhibits to the brief and creating the links in the brief at the right place for the judge to be able to click through to the text of the exhibit itself. In Acrobat, the first is called “Attachments,” and the second appears in the Help index under “Links.”

step 1: Creating the attachments. Open the main document that you expect the court to be reading—in this case, “Brief P&As”—using Acrobat. (Doubl-clicking on the PDF will do it.) You then need to add the “Exhibit 1” and “Exhibit 2” files as at-tachments to the brief. You do this as follows:

1. Select “Document” from the list on the menu bar on top.2. Select “Attach File” from the pull-down menu. (A window

will open across the bottom of the page, and the file name of your attachment will appear in a list.)

3. Repeat for as many exhibits as you want to attach. (We rec-ommend that you attach the exhibits in the order in which they appear—Exhibit 1, Exhibit 2, etc. This will make your Bookmarks list more user friendly.)

4. Save the original PDF. No need to change its name; just save the file. This stores your newly created group of docu-ments and pointers.

step 2: Creating the links.1. Open “Tools” from the top menu.2. Choose “Advanced Tools” from the pull-down menu.3. Choose “Link Tool” from second pull-down list. (Your

cursor now turns into crosshairs.)4. Scroll down to the exhibit reference that you wish to link,

put the cursor at the upper left corner, left-click, and hold the button while you pull the resulting rectangle around the exhibit reference. When it fits, let go of the button and a dialogue box appears.

5. The list at the top of the dialogue box has to do with how the link will look in the main brief—thick lines, thin lines, dashed, etc. The list at the bottom has to do with how the target document will appear. Pick “Go to a page view” from the top of that list.

6. When you click on “Next” at the bottom of the dialogue box, another window appears: “Set Link.” Now you must select what you want the judge to see when she clicks on the link you’ve just set up. Assuming that you’ve marked

“Exhibit 1, ¶5” in your brief, go down to the list of attach-ments and click on Exhibit 1 in the list. That document will open at page 1. Scroll down to paragraph 5, and put your cursor at the top left corner of the paragraph, drag the resulting box around the paragraph you want to ap-pear, and release the button when the frame fits. Then click on “Set Link” in the dialogue box. The dialogue box disappears, and the link is set.

Close the exhibit screen (by clicking “X” in upper right, by one author’s preference) and you’re back in your main document. The exhibit reference now has a box around it, indicating the link is active. Test that it works. Clicking on the box should invoke the exhibit document and display what you have linked—in our example, paragraph 5.

Practice Tip No. 1. Getting home is simple: Hold down “Alt” and hit the left arrow twice—the first takes you to the first page of the exhibit; the second takes you back to where you left the main document.

Practice Tip No. 2. Getting rid of mistakes is easy. Click on the link rectangle you want to get rid of, and it will change color and appear with dots along the lines. Then click “Delete” and the box vanishes.

So now that it’s all set up, simply copy the entire “Chambers Copy” directory, containing all three files, onto two CDs—one for the judge and one for your opponents. Both get a brief cover letter that says something like: “Here’s a copy of our brief with all the exhibits linked to the brief. If you read this on your com-puter and click on ‘Exhibit X,’ you will see the exhibit. Click on ‘Alt’ plus the back arrow two times and you’ll return to the place in the brief you left from.

The rules on e-Documents

You may be wondering what the rules say about all this. We have been unable to find any rules in California state courts or federal courts that directly address the issue. An unscien-tific survey of the clerks for randomly selected judges in the Ninth Circuit, U.S. District Court for the Northern District of California, California Superior Court, and the Federal Judicial


27

Center have produced the following helpful data: Not one court indicated that it had any rules prohibiting the practice, and every judge replied through chambers clerks that he or she thought it was a great idea.

This is new territory. In anticipation of skepticism, we point out the following: The CD is in addition to the chambers copy, not a substitute; you are already filing the “normal” copy with the court, either through Pacer or on paper; and if you give your opponents a copy, what are they going to do? Object that you’re making it too easy for the court to follow your argument?

For a more nuanced judicial view, see the accompanying Sua Sponte by Judge Berle Schiller of the Eastern District of Pennsylvania, who is guardedly interested, provided we exercise some discretion in what we link to.

sample Letter to the Court

Dear Judge [ ]:As part of the chambers copy of our [Motion/Opposition/

Reply], we are providing a copy of the brief in PDF format that contains links to the exhibits cited therein. We hope that being able to click to the referenced exhibit may make it easier for Your Honor to deal with this large mass of material.

What follows assumes that you have Adobe Acrobat’s Reader program on your computer. If not, your clerk can download it for free from Adobe’s website.

Simply put the enclosed CD in your computer’s CD drive. All the documents are contained in the folder named “Chambers Copy.” When you click on that directory, you will see the main brief, entitled [P&As in Support, etc.], plus copies of all the ex-hibits, named as they are in the brief.

When you click on the brief, it will open on the top of your screen. As you read the brief, you will see that [some of ] the exhibit references have a rectangle surrounding them. If you click on that rectangle, the named exhibit will open at the ref-erenced paragraph.

You can move around in the exhibit freely. When you wish to return to the spot where you left the brief, hold down the “Alt” key and tap the left arrow key twice. The first tap will move you to the first page of the exhibit, and the second will take you back to the place you left the brief.

We hope this electronic copy is helpful.Very truly yours,

—Attorneys for [ ] q

maker to witness the plaintiff make your case for you would be very persuasive.

Finally, make sure to include, in a cover letter, some basic direction about how to use the living brief you are submitting to the court. The whole point of this exercise is to make it easier for the judge to get to the important material. If he or she needs a manual to get there, the judge may skip the living brief and just start reading a paper copy, which of course requires no ad-ditional instruction.

Assuming the judge in your case is on board with a living brief, what is the best method to use when creating your living brief? Generally, I believe that lawyers would be wise to embed links in the text of the brief. This method helps maintain the flow of the argument and leaves to the reader control over when to examine the exhibit. And, of course, embedded links have the advantage of taking up less space than including a picture of the exhibit on the page of the brief. Circumstances exist, however, when it makes sense to include the actual exhibit in the brief. Trademark and patent cases, for example, may require judges to examine drawings and trademarks to determine the likelihood of confu-sion and possible infringement. Embedding visuals directly into the brief makes sense here. Similarly, damage calculations and petitions for attorney fees are situations in which it may be best to show your work directly in the body of the brief.

And let us not overlook the law. If you have controlling prec-edent on your side, consider linking a case directly from your brief. You should even consider highlighting a particularly im-portant legal quote or analysis that succinctly makes the point you are trying to convey to the court.

The living brief can ease a judge’s burden and help your argu-ments. A living brief also can keep your opponent honest. If you believe your adversary is playing fast and loose with the record, you could link to the specific offending page in your adversary’s brief as well as the statement or piece of evidence that proves your point. You could undercut your opponent’s argument, show the judge the evidence that supports your position, and highlight the legal proposition that helps you win the motion. The lawyer who can accomplish this all on the same page and without the need for constant flipping will have a persuasive brief.

Used properly, a brief with some well-placed links presents a golden opportunity to place your best evidence before the judge and simultaneously ease the burden on the reader. This judge says go forth and create living briefs. Be careful, though, not to create a Frankenstein. q

S u a S p o n T e

a Judge Com ment s(Continued from page 25)


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Remove Your Case to Federal Court

Lesser Known Optionsa n d r e w e . S h i p l e y

The author is a partner with Perkins Coie LLP, Washington, D.C.

He represented northrop Grumman in the CRGT, Inc. v. Northrop Grumman Systems Corp. case discussed in this article.

You receive an urgent email from your client attaching a com-plaint filed in a county circuit court that demands millions of dollars in damages and a jury trial on all counts. The email opens with the following question: “Can you get us out of state court?” Having represented this client before, you know that as a large company, it would rather not deal with a David versus Goliath battle waged before a local county jury. You also know that this particular state’s procedural rules make summary judgment hard to come by. You start thumbing through the complaint to assess grounds for removal.

The plaintiff and your client both reside in the same state; absent diversity, federal question jurisdiction constitutes your sole option. Unfortunately, the complaint alleges only state law causes of action—primarily breach of contract claims with an unfair trade practices count tossed in for good measure. You recall from your civil procedure class in law school the doctrine known as the “well-pleaded complaint” rule. Under this doctrine, plaintiffs may frame their claims as they see fit—if they choose to pursue only state law causes of action, a defendant may not cre-ate federal question jurisdiction by asserting federal defenses to them. In addition, the federal question removal statute, 28 U.S.C. § 1441(a), is narrowly construed with the burden of proof rest-ing on the removing party. Moreover, if a federal court remands the action, the removing party has no right to an interlocutory

appeal because the moment the court issues the remand order, it divests itself of jurisdiction.

You start to prepare an email response to your client’s query, explaining that this particular county enjoys a reputation for having good judges and fair juries, so no need to despair (know-ing this is neither the answer your client wants nor, given the procedural differences between the state and federal courts, the optimal result). Then an intriguing possibility crosses your mind. You reread the complaint. Yes, it alleges only state law causes of action . . . but it also alleges an overlay of federal gov-ernment involvement in the events that gave rise to the claims. Specifically, although the government was not a party to the contract between your client and the plaintiff, a government official (according to the complaint) had directed your client to change the scope of its prime contract, which ineluctably led your client to terminate (and thereby allegedly breach) its subcontract with the plaintiff.

You delete your draft email and log onto the Internet to do some research. You discover two intriguing possibilities that you had not previously encountered: the federal officer removal statute in 28 U.S.C. § 1442(a)(1), which provides an exception to the well-pleaded complaint rule, and the U.S. Supreme Court case Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), which found federal


29

question jurisdiction arising from what nominally appeared to be purely state law claims. You hunker down for a long night of research.

Under the federal officer removal statute, a federal court has jurisdiction over any civil action directed at the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.” Courts re-view the federal officer removal statute with a liberal eye, not the strict statutory construc-tion a defendant faces under federal question removal. Indeed, the Supreme Court has re-peatedly made clear that the “policy favoring [federal officer] removal should not be frus-trated by a narrow, grudging interpretation of § 1442.” Arizona v. Manypenny, 451 U.S. 232, 242 (1981). The broad construction given this unique removal statute helps ensure that the operations of the federal government are not left in the hands of a state court.

The Four Prongs of removal

To succeed in removing a case under section 1442, a defendant must meet a four-part test:

1. The defendant must be a person;2. the defendant must have acted at the di-

rection of a federal officer;3. the federal officer’s direction must be the

causal nexus of plaintiff’s claim; and4. the defendant must have a colorable fed-

eral defense to the claim.

You map the allegations in the complaint against the following prongs.

Prong 1: Is your client a person under section 1442?Answer: Yes. Corporations are considered persons

under this statute. This is perhaps the least contested of the four prongs and typically merits no more than a passing reference in the case law.

Prong 2: Did your client act under the direction of a federal officer?

Answer: Somewhere between possibly and probably. Under the liberal interpretation afforded the statute, “direction” can

Illustration by Lisa Haney


30

refer to regulations and specifications under certain circum-stances, as well as explicit instructions. And the direction need not be immediately juxtaposed in time to the action taken. For example, companies that manufacture products in strict con-formance with detailed government specifications issued years before have successfully removed product liability suits un-der this statute. But mere participation in a regulated indus-try is not enough. For that reason, a tobacco company that per-formed tar and nicotine testing required by the Food and Drug Administration could not establish that it did so “under the di-rection” of a government official absent either a contract requir-ing that the tests be performed in a certain manner or a delega-tion of authority from the government to the tobacco company to perform the testing on the government’s behalf. Watson v. Philip Morris, Cos., 551 U.S. 142 (2007). And defendants must show more than compliance with general regulatory requirements; otherwise, simply filing one’s tax returns could be construed as sufficient to meet this prong.

But if a regulatory scheme is so detailed that the defendant had no choice but to take a particular action, this prong should be satisfied. Thus, for example, the court in Campbell v. EPI Healthcare, No. 08-CV-401-ART, 2009 U.S. Dist. LEXIS 12242 (E.D. Ky. Feb. 18, 2009), seemed satisfied that the removing party met this prong by demonstrating that a federal regulation pro-hibiting the disclosure of certain records precluded compli-ance with a state court discovery order. Unfortunately for the defendant, it did not file its removal petition until after the 30-day deadline, and the court remanded the matter on timeliness grounds. And if the defendant acted under the close supervision of a government official, then it also acted “under the direction” of that official. Thus, a defendant insurer successfully removed a Louisiana lawsuit brought by a patient at a Department of Veterans Affairs (VA) hospital when the court determined that the insured surgeon acted under the immediate supervision of a federal official who evaluated his performance and determined his working conditions.

In a case analogous to the hypothetical one in this article, a federal judge found that a defendant had acted under the direc-tion of a federal officer when it terminated a subcontract line item after the government advised it no longer required the services covered by that line item. In CRGT, Inc. v. Northrop Grumman Systems Corp., No. 12-CV-554, 2012 LEXIS 123206 (E.D. Va. Aug. 28, 2012), the plaintiff argued that this prong had not been satisfied because the government official’s direction to terminate applied only to the government’s prime contract with Northrop Grumman. The court disagreed. Given the broad inter-pretation to be afforded the statute, the court determined that the government’s specific instruction to terminate a particular set of services necessarily encompassed the subcontract line item through which those services were obtained.

According to the complaint on your desk, your client breached its contract with the plaintiff after the government directed a change in the scope of the prime contract. Additional information from your client would be helpful (e.g., what were the government’s actual instructions and who issued them? Did any of the prime contract terms flow down to the subcontract?), but given the liberal reading afforded this statute, your client has a reasonable chance of satisfying this prong.

Prong 3: Did the direction give rise to the plaintiff ’s claim?Answer: If your client meets the second prong, the third

prong should be satisfied as well. Indeed, the strong overlap between the second and third prongs has led some courts to combine them into a single factor. Although the plaintiff would undoubtedly argue that your client unilaterally decided to ter-minate the subcontract and could instead have chosen to keep it in place, the allegations themselves suggest otherwise: But for the government’s decision to change the scope of the prime contract, the claim never would have arisen.

Prong 4: Does your client have a colorable federal defense?Answer: Probably. This is often the most hotly contested

prong of the four-prong test, in large part because it sidesteps the previously mentioned well-pleaded complaint rule. The Supreme Court noted in Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987), that a “case may not be removed to federal court on the basis of a federal defense . . . even if the defense is anticipated in the plaintiff’s complaint, and even if both par-ties admit that the defense at issue is the only question truly at issue in the case.”

The federal officer removal statute, however, is an exception to this rule. Assuming the other three prongs of the statute are met, the statute is satisfied if the defendant may assert a colorable federal defense to the claim. The defendant need not prove that it will prevail on the merits; indeed, the court is not supposed to evaluate the merits of the defense. The only ques-tion for the court is whether the defense is federal in nature and available to the defendant.

The government Contractor Defense

Perhaps the defense most frequently relied on is the government contractor defense, enunciated by the Supreme Court in Boyle v. United Technologies, 487 U.S. 500 (1988). The underlying ratio-nale in Boyle is that the contractor, in manufacturing products for the government in accordance with detailed government specifications, steps into the shoes of the sovereign and should therefore have available to it the defense of sovereign immu-nity. But defendants seemingly have been reluctant to invoke


31

Courts review the federal officer removal statute with a liberal eye.

the federal officer removal statute in other contexts, perhaps because a small scattering of United States district courts have misinterpreted Boyle to mean that the statute should be narrowly construed when the underlying case does not implicate sovereign immunity. But the statute on its face is not so narrow, and the Supreme Court has consistently made clear that it is to be given a liberal interpretation. Indeed, in keeping with this liberal con-struction, the removing party may seek an interlocutory appeal from an order granting the plaintiff’s motion to remand. As noted earlier, no such appeal may be brought to contest a remand order issued regarding an action removed pursuant to section 1441.

The universe of “colorable federal defenses” contains more than invocations of sovereign immunity. Neither the Supreme Court nor any circuit court has imposed significant limitations on what qualifies as a colorable federal defense. The test is met so long as the defense is based in federal law and arises from the removing party’s compliance with the demands of a federal officer. Defenses such as official justification, reliance on regu-latory prohibitions, and innocent intermediary status have been deemed sufficient to support removal.

Notwithstanding the Supreme Court’s instruction, some district courts have narrowly interpreted the statute when in-voked by private parties. For example, in Taylor v. Comsat Corp., No. 05-CV-0920, 2006 LEXIS 81949 (S.D. W. Va. Nov. 8, 2006) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)), the court held that the statute “must be strictly con-strued for the reason that the limited jurisdiction of federal courts ‘is not to be expanded by judicial decree’ since federal courts ‘possess only that power authorized by [the] Constitution and statute.’” The Taylor court cited with approval two other district court cases holding the statute “should be construed broadly only when the immunity of federal officers is at issue.”

Taylor and the few other cases that have imposed a height-ened standard on private parties based their holding on the Supreme Court case of Willingham v. Morgan, 395 U.S. 402 (1969). In Willingham, the Tenth Circuit remanded a lawsuit brought by prisoners against a prison warden. Although the warden as-serted that he had acted under the color of his office and thus enjoyed sovereign immunity, the Tenth Circuit held that his defense failed to meet the “colorable federal defense” standard.

The Supreme Court reversed, stating that “[i]n fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.” Id. at 407. This quote seems to have been taken out of context to argue that, absent an immunity defense, the federal officer removal statute should not be broadly construed. But this is not what the Willingham case says, nor has the Supreme Court ever endorsed such an interpretation.

As the Second Circuit noted, “we find no support for the proposition that only ‘official immunity defenses’ satisfy the ‘colorable federal defense’ requirement.” Isaacson v. Dow, 517 F.3d 129, 139 (2d Cir. 2008). In the CRGT case, the court assessed Northrop Grumman’s assertion of a colorable federal defense as follows: “Critically, the [c]ourt’s inquiry on this issue is not whether the defense will ultimately prevail, but only whether the defense is a ‘colorable’ one.” 2012 LEXIS 123206, at *2. The court then found that Northrop Grumman had asserted

a colorable federal defense of official justification because Northrop Grumman avers it cannot be liable to CRGT if the Army Contracting Officer properly terminated the CRGT licenses. . . . Whether Northrop Grumman’s assertions about the subcontract are eventually declared meritorious is irrel-evant at this stage[;] what matters is whether Northrop Grumman has set forth plausible facts that advance a color-able defense of official justification. Because Northrop Grumman’s plausible assertions, if true, would render it an innocent intermediary and preclude CRGT’s action for breach, Northrop Grumman has advanced a colorable federal defense.

The Three-Prong Test in Grable

Your research satisfies you that the federal officer removal stat-ute is a different creature entirely than other removal statutes and does not require that the court resolve doubts in favor of state court jurisdiction. Based on your read of the complaint, your client has a reasonable chance of prevailing if it were to remove under this statute. But there is always a chance the court will disagree, so you turn your attention to an alterna-tive approach.

Black-letter law posits that a defendant may not assert fed-eral question jurisdiction as a basis for removal if the complaint alleges only state law claims—unless those claims have been completely preempted by federal law. Complete preemption is quite difficult to establish, as demonstrated by the many remand orders issued as to removal petitions premised on this argument. Nor may the defendant assert “anticipated” federal defenses as an attempt to weave federal questions into the complaint.


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But the Supreme Court in Grable articulated a variant of federal question jurisdiction that appears to put cracks into the well-pleaded complaint doctrine. In Grable, the plaintiff sued to quiet title over land that the Internal Revenue Service seized for failure to pay back taxes. The plaintiff asserted that the government had failed to provide proper notice for the sei-zure. Although the complaint alleged only state law claims, the Supreme Court held that federal question jurisdiction existed because the claims implicated significant federal issues involv-ing the interpretation of federal tax laws.

Grable enunciated a three-prong test:

1. Does the state law claim necessarily raise a stated federal issue?

2. Is the issue actually disputed and substantial?3. Can it be entertained by the federal forum without disturb-

ing the balance of federal and state judicial responsibilities?

This test provides far more opportunity for a defendant to establish federal question jurisdiction than the complete pre-emption standard. Courts employing the Grable test have found federal question jurisdiction over a variety of state law actions, ranging from unjust enrichment and breach of contract claims that could not be resolved absent reference to federal regulations, to misappropriation claims that depended on the interpretation of a federal banking charter.

One of the more illuminating cases involves an unsuccess-ful attempt to remove under both the federal officer removal statute and federal question jurisdiction. What makes the case interesting is the court’s curiosity as to why the defendant did not seek removal under the Grable test. In Crescent Care, LLC v. Total Home Health, Inc., No. 08-C-127, 2008 LEXIS 123027 (N.D. Ill. May 28, 2008), the plaintiff sought to recover a contractu-ally agreed-upon finder’s fee in connection with a VA contract obtained by the defendant. After securing the VA contract, the

defendant repudiated its contract with the plaintiff. The court rejected the defendant’s argument that its contractual obligation to comply with federal regulations required it to repudiate the plaintiff’s contract because government regulations prohibited the payment of such fees. The court explained that mere compli-ance with a general regulation does not satisfy the “acting under the direction” requirement of the federal officer removal statute. The court also rejected the assertion of federal question juris-diction on complete preemption grounds. The court observed that the Supreme Court has acknowledged only three areas in which Congress intended federal law to completely displace state law: actions under the Labor Management Relations Act, the Employee Retirement Income Security Act, and the National Bank Act. Another area recognized by at least one circuit court involves the regulation of mobile telecommunications rates. The defendant could not demonstrate that the claims at issue involved any of those areas. In remanding the action, however, the court noted that the defendant “did not argue that this case involves a significant federal question under Grable. . . . We are perplexed by defendant’s choice because the Grable argument would appear to be a stronger argument than complete preemp-tion.” Id. at *6.

The plaintiff who sued your client clearly avers that the gov-ernment’s direction to change the contract’s scope led to the termination of the subcontract line item. Thus, an argument can be made that such an allegation raises questions concerning the government’s right to determine what services it needs and what steps it can take to discontinue unwanted services. You would like additional information as to the potential impact on the fed-eral government of a state court verdict; for example, what was the nature of the prime contract—does it involve a program of vital national interest such as homeland security, or does it deal with a less weighty issue such as the disposal of surplus goods? Does the prime contract allow your client to recover from the government any damages it would have to pay, such that a state court judgment could directly effect the federal fisc? If you can meet the first and second prongs, the third prong should follow naturally. Simply put, allowing a federal court to resolve issues of federal interest would not disrupt the balance of federal and state court jurisdiction.

You push back from your desk. It has been a long but very productive night. Although you need to gather more background facts from your client before recommending that removal be at-tempted, the email you plan to send your client (after you grab that much-needed cup of coffee) will have a more optimistic tone than you originally had thought possible. q

allowing a federal court to resolve issues of federal interest would not disrupt the balance of federal and state court jurisdiction.


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Tips for LawyersWriting in a

Time Crunch

a n n a h e M i n g way a n d J e n n i f e r l e a r

Anna Hemingway is an associate professor of law and director of legal methods at Widener university school of Law, Harrisburg, Pennsylvania.

Jennifer Lear is a visiting professor of legal research and writing at the George Washington university Law school, Washington, DC.

Your phone rings just as you are packing up your briefcase at the end of the day. Caller ID tells you it’s your supervising attorney. To answer or not to answer? With responsibility getting the better of you, you reluctantly lift the receiver. Your supervisor tells you a client is impatiently waiting for advice on his case. The client is expecting an advisory letter by noon tomorrow. You have not yet started researching, so you know you have a long night ahead of you.

Back in law school, you would have had at least two weeks to complete a writing assignment. With those two weeks, you would have had ample time to research, analyze, outline, draft, revise, edit, and polish. You would have devoted significant at-tention to large-scale, mid-scale, and small-scale revisions. You might even have been able to put the writing aside for a day to edit with fresh eyes. Sadly, those days are gone.

When lawyers have the time, of course they write well. The demands of the legal profession, however, can make even the best writer feel like a Top Chef contestant completing a Quickfire challenge, in which accomplished chefs must create, cook, and plate a recipe in under 30 minutes. Given the time constraint, the dishes are often incomplete or inedible. Similarly, when experienced lawyers are rushed, their writing might also be imperfect or hard to digest. Facing crunch time can make the most talented question their abilities and can leave both culinary and legal clientele with a negative or inaccurate impression.

There are, however, ways to control the havoc that time pressure can wreak. Just as some Top Chef contestants can suc-cessfully complete the same tasks in 30 minutes as they can when working under less-pressured conditions, so can lawyers—whether they have months, weeks, or hours to finish a writing project.

When working under time pressure, you must first add two initial steps to your normal process:

1. Tame your expectations.2. Turn over responsibility.

Then, as with any writing project, you must perform the following steps, recognizing your time constraints and mak-ing some adjustments to maximize quality while minimizing anxiety:

3. Track down resources.4. Transfer your thoughts to writing.5. Trace writing structure.6. Test content.7. Tag blunders.8. Trim excess.9. Tweak tone and word choice.10. Tune up and polish.


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Following these 10 steps ensures a quality product regardless of how much time you have. For the times when you are rushed, use the tips included in the description of each of these steps to make your writing more palatable.

steps 1 and 2: Tame your expectations and turn over re-sponsibility. Set realistic goals for yourself. Don’t lower your standards, but shift your expectations and accept that you need to work at a much faster pace to complete your tasks. What you normally might have completed in 12 days, you now have to complete in 12 hours. In a typical situation, your plan might have been the following:

Days 1–3 Track down resources.Day 4 Outline and begin transferring thoughts to

writing.Days 5–7 Draft the document.Day 8 Finish drafting and identify gaps in research.Day 9 Complete any additional research, finalize

content, and put aside to edit with fresh eyes.Day 10 Complete large-scale and mid-scale revisions

by tracing the writing structure and testing content.

Day 11 Complete small-scale revisions by tagging blunders, trimming excess, and tweaking tone.

Day 12 Tune up the document by proofreading and polishing.

When you’re working under a tighter deadline, however, you must complete the same tasks in much less time. If the project is too big to complete alone, consider recruiting help. Researching and editing can be easily delegated to others. If the research task seems daunting, ask a colleague to help you locate resources. If, given the time constraints, you can’t put the document aside before final revisions, ask a colleague to help you edit. Now your plan might look like this:

Hours 1–3 Track down resources.Hour 4 Outline and begin transferring thoughts to

writing.Hours 5–7 Draft the document.Hours 8–9 Finish drafting and finalize content.Hour 10 Complete large-scale and mid-scale revisions

by tracing the writing structure and testing content.

Hour 11 Complete small-scale revisions by tagging blunders, trimming excess, and tweaking tone.

Hour 12 Have a colleague review while you tune up the document by proofreading and polishing.

step 3: Track down resources. If you typically spend days researching a new legal issue, understand that you’ll now have just hours to familiarize yourself with the file, narrow the issues, brainstorm search terms, identify research sources, locate the sources, and update those sources. Depending on what you’re drafting, your first minutes should be spent checking your in-ternal resources. Perhaps a colleague has experience with the issue, or perhaps your files contain a model form, a memo sum-marizing recent research on your topic, or a brief addressing the same legal question. Recognize that unless your subsequent drafting identifies a significant gap or error in your analysis, these internal resources and your initial research could be the only materials on which you’ll be able to rely.

Because you have only one shot, it is imperative that you set a deadline, develop a research plan, and stick to both. In de-veloping your research plan, understand that working under time pressure increases the likelihood of skipping steps that you would otherwise never miss. Make sure you document the sources you will consult, the order in which you will consult them, and the tools you will use for each—print, electronic, or a combination. Although you could easily get swept up in the research, remember that when the deadline strikes, you must move on.

step 4: Transfer your thoughts to writing. After reaching your research deadline, begin outlining and writing immediately. Avoid the temptation to keep researching or to delay writing un-til you have perfected the analysis in your mind. Even if you’re not sure what you want to say, just start saying it. The process of outlining and writing will clarify your thinking. Although this is good advice regardless of the amount of time you have, working under time constraints makes it especially critical. As you are outlining and writing, you will identify areas of confu-sion. Struggling with these areas of confusion, however, will somehow magically yield unexpected insights and will deepen your understanding of the analysis. Make sure to get started as soon as possible to allow enough time for the process to work its magic. You should expect to spend close to half of your time outlining and writing.

step 5: Trace the writing structure. To ensure that your outline and draft are well organized and that they track your analysis in a way that educates and interests the reader, set aside time to trace the structure of your writing. When your deadline won’t allow the usual effort that seamless organization demands, you need to do your best to fake it. You can fake seamless or-ganization by performing two simple tasks that will make your draft reader-friendly with good coherence and flow. First, review the structure by checking for a familiar organizational scheme that moves from the general to the specific. Second, make the structure transparent to the reader by providing a road map and signposts.


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The first task is to check that you’ve organized the draft in a structure the reader expects to see. Most readers expect the organizational scheme to be topic, explanation, and conclusion. To ensure you have effectively conveyed this scheme, take a few minutes to trace the structure by creating an after-the-fact out-line. You can quickly create an after-the-fact outline by reading each paragraph and summing up its main point in a bullet. All of the pieces should fit together logically. Reviewing this out-line allows you to check organization efficiently and gives you the big picture the document is presenting. It will also help to ensure your draft moves from the general to the specific and from known information to new. Providing this type of context before specific details or new information tells the reader why the details are important and how new information connects to familiar information.

The second task is to make the structure transparent to the reader by creating a road map and by highlighting that struc-ture. The road map tells the reader what you are going to say and outlines the structure in a way that previews what’s to come. The work you just completed on the after-the-fact out-line will make developing the road map quick and easy. Once you create the road map, highlight the structure for the reader. Although ideally you would signpost with great substantive transitions and topic sentences, when you are working under pressure, your time is better spent improving coherence and flow by blatantly drawing attention to your organization. Easy ways to accomplish this include using headings, checking for manageable paragraph length, using generic transitions, num-bering items in a list, and repeating key words.

step 6: Test content. Once you are satisfied with the orga-nization, it is time to move on to content. Accurate, complete, and clear content will educate your reader and establish trust in your work. When you don’t have the time to review content carefully, focus on the sections that were hardest to write be-cause those are probably the issues that were most confusing to you.

As you go through these sections, remember that working under time pressure can cause you to become so close to the draft that you see what you intended to write rather than what you actually wrote. Because you are so close to the draft, this is a good time to enlist some help. Have a colleague mark any words or sections that cause pausing, confusion, or rereading, and ask that colleague to summarize the main points of your analysis. Your colleague should also check for obvious errors, such as unintended omissions of citations or key facts from a case. Reviewing your after-the-fact outline, your colleague’s summary, and this marked-up draft will help you identify areas where your ideas are not clear or well developed and where your analysis is conclusory or redundant.

An analysis that is conclusory leaves skeptical legal readers

wondering “why?” Check to see what, if anything, could be added to complete the explanation and clarify the content. Do a search for the word “because.” If there aren’t many in the draft, perhaps you haven’t included the reasons justifying your conclusions. Adding the word “because” along with factual detail, a plain-language argument, or a policy argument can make superficial content more meaningful.

In addition to checking for what’s missing, also check for redundancies, which bog writing down and frustrate readers. If you had a hard time creating the summary bullets for your after-the-fact outline, that may be a signal that your paragraphs meander and repeat concepts unnecessarily. Go back to those paragraphs, create topic sentences, and make sure those topic sentences are not repetitive. If they are, consolidate or elimi-nate them to clarify the content. If you did not have a hard time creating the bullets in your outline, but you notice that two or more convey the same information, simply remove the duplications.

Although you should not be repeating unneeded information, you should be repeating terms that are helpful to the reader. Check your writing for what Moritz School of Law Professor Mary Beth Beazley calls the “phrases that pay.” The phrases that pay are the key word or words from the rule you are ana-lyzing. By running a simple Find command for those key words in your document, you will locate problem areas such as

• imprecise word choice,• unnecessary variety in word choice, and• insufficient references to the rule that governs your analysis.

If you have not frequently or consistently included the phrases that pay, you can quickly scan your document to identify syn-onyms and replace them with the phrases that pay. You should reference these phrases at least several times—in any explana-tion, application, or conclusion. If they are missing from any of these sections, adding them will keep the reader focused on the content you want to convey.

step 7: Tag blunders. You’re more than halfway there. By tracing your writing structure and testing your content, you have now completed your large-scale and mid-scale revisions. In step seven, as you move to small-scale edits, you should iden-tify problems with individual sentences and with words. Once you’ve tagged those errors, the next three steps will go a long way toward improving readability and clarity.

step 8: Trim excess. To paraphrase Mark Twain, if you want a 20-page paper, I am ready now; if you want a five-page paper, I’ll be done in two weeks. Although you might not be able to trim as much excess in one hour as Mark Twain could have trimmed in two weeks, these fixes will make your document more reader-friendly:


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1. Shorten sentences. Make sure you limit each sentence to one thought. Keep the subject and verb close together. Highlight sentences that are longer than 25 words (about 2½ lines), and look for commas, conjunctions, and prepo-sitions—these may indicate a good place to begin a second sentence.

2. Omit surplus words and simplify. If you can’t break up a long sentence, eliminate the following to make the sen-tence more concise:• Nominalizations. Look for verbs that were converted to

nouns ending in -ion, -ent, -ance, and turn them back into verbs. For example, “had a collision” becomes “col-lided.”

• Legalese and jargon. Legalese includes archaic words (e.g., the judge opined), needlessly repetitive phrases (e.g., cease and desist), and legal terms of art (e.g., the party of the first part). Jargon is meaningless language that is unique to a particular profession (e.g., revenue enhancement instead of tax increase).

• Compound constructions. Compound constructions use multiple words where one will do. For example, instead of “due to the fact that” or “for the purpose of,” write

“because.”• Passive voice. Although passive voice has proper uses, it

usually requires more words to convey the same mean-ing and is always less direct. For example, instead of writing “the tape was erased by the defendant,” write,

“the defendant erased the tape.”

step 9: Tweak the tone and word choice. Do a quick check of the tone. Simple words, simple sentences, and a conversational voice are appropriate even in more formal legal documents. In these types of documents, however, it’s usually best to remove contractions, personal pronouns, slang, sarcasm, and rhetori-cal questions.

Devote one quick read-through (or have your colleague do this for you) to identify any vague, ambiguous, or imprecise words. If your reader is having a hard time understanding the meaning of a word or phrase, replace it with more specific, precise language. For example, instead of relying on overused, imprecise words such as “unfair,” if you mean dishonest, write “dishonest”; if you mean biased, write “biased.” Instead of using empty words such as “clearly” and “obviously,” substitute a more detailed explanation.

step 10: Tune up and polish. Slow down (yes, even when you’re racing against the clock). One set of eyes won’t catch ev-ery error in a piece of writing, so it’s critical to make this a team effort—particularly when you’re short on time. While you’re proofreading, also have a colleague or two check for typos and simple grammar and punctuation errors. You should always run

a spelling and grammar check, but don’t forget that computer tools won’t catch every error. For instance, your word proces-sor’s spellchecker won’t realize you meant “trial” when it comes across the word “trail.” In addition, most spellcheckers, by de-fault, ignore words in ALLCAPS.

Although this isn’t the time to create a personal editing check-list (wait until you finish this project and catch your breath), if you have one that reminds you of particular trouble spots unique to your writing, then use it. If you don’t have a personal editing checklist, take a minute to think about the most serious writing rules you struggle with, and then review your document just for those particular concerns. For example, some of your concerns might include vague pronoun references, missing apostrophes, or lack of parallelism.

Now that you’re in the home stretch, here are a few tricks you can choose from to simulate editing “cold” after a break:

•Proofreadusingadifferentsizeandamono-spacedfontsuchas Courier to slow you down as you edit.

•Readoneparagraphatatime,startingattheendandwork-ing your way to the beginning.

•Printoutthedocumentandproofreadonpaper.•Usearulerorpieceofpapersoyoucanfocusononelineata

time.•Readthedocumentoutloud.•Usesoftwarethatreadsyourtexttoyou.

Although it’s natural to fear short turnaround times, just as Top Chef contestants do, learn to welcome the final call of

“knives down, hands up.” Perceive deadlines as a tool for honing your efficiency as a writer. Accept them as a cap on what could otherwise become endless angst over attempted perfection.

Once you do that, your document is ready to be served. q

Time pressure can cause you to see what you intended to write, not what you did write.


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Arbitration for the Trial Lawyer

J e f f e r y d . u b e r S a x

The author is a partner with Jones Day, Cleveland. This article was prepared with valuable assistance from Michael A. Platt, an associate at Jones Day.

Sooner or later, every trial lawyer with a commercial practice will end up in an arbitration. Perhaps the most likely scenario is a contract dispute between parties that have agreed to manda-tory arbitration with a specified alternative dispute resolution provider, most commonly the American Arbitration Association (AAA). Your client asks you to handle the matter, but you have no experience with arbitration. Not to worry—there is nothing in the process that a good trial lawyer isn’t fully equipped to handle. This is an overview of the AAA process and some advice on how to navigate it successfully.

In general, an arbitration is like a fast-tracked civil case that gets tried to the bench with little discovery, no rules of evidence, and an extremely limited right of appeal. The whole prehear-ing process is much less rule-driven than a civil case; there are no discovery rules, for example, and no rules on motion practice. Instead, there is only a general framework within which the parties and the arbitrators have wide latitude to tailor the proceedings to the circumstances. An arbitration hearing itself is not so different from a civil bench trial, except for the absence of evidentiary objections (which would have little role anyway in a typical contract case tried to the court) and a less formal atmosphere.

Some arbitrations start with a lawsuit. The parties have been talking about a dispute between them; it becomes apparent to at least one side that their talks will not be fruitful; and someone decides to go to court, despite an arbitration clause in the con-tract. There can be a number of reasons for a party to do this:

• A party may feel that it has a better chance with a jury as the decision maker than with a lawyer or a panel of lawyers, per-haps because the case depends on arguments of fairness and equity.

• It may believe that it will benefit from fuller discovery than is available in arbitration.

• It may want to have a full right of appeal.• More cynically, it may seek delay or want to raise the stakes

and gain leverage by dragging its opponent into a more costly and inconvenient forum.

Faced with a complaint, you can of course waive arbitration. Or you can move to stay the case and to compel arbitration.

You will want to decide what law applies. If the contract in-cludes a choice of law provision, the chosen state law will ap-ply, not the Federal Arbitration Act (FAA)—even if interstate


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commerce is involved. If there is no choice of law provision, the FAA will apply to a contract involving “commerce”—defined as

“commerce among the several states or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation. . . .” 7 U.S.C. § 1. If the FAA applies, you can seek relief under Sections 3 and 4 of that statute in state court—indeed, you have to go to state court with your motion to stay and/or to compel arbitration, unless there is some independent basis for federal jurisdiction (diversity or a federal question).

Both federal law and the law of most states recognize a strong presumption of arbitrability, and motions to stay litigation and/or to compel arbitration are generally met with favor. As the Ohio Supreme Court put it, “there is a presumption of arbitrabil-ity in the sense that an order to arbitrate the particular griev-ance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Acad. of Med. of Cincinnati v. Aetna Health, Inc., 108 Ohio St. 3d 185, 188, 842 N.E.2d 488, 492 (Ohio 2006). Moreover, the courts will enforce a clause that gives arbitrators themselves the authority to de-cide whether a dispute is arbitrable. If parties “have clearly and unmistakably vested the arbitrator with the authority to decide the issue of arbitrability, the question of whether a matter is ar-bitrable is to be decided by the arbitrator.” Belmont Cnty. Sheriff v. Fraternal Order of Police, Ohio Labor Council, Inc., 104 Ohio

St. 3d 568, 570, 820 N.E.2d 918, 921 (Ohio 2004).Section R-7(a) of the AAA’s Commercial Arbitration Rules

provides: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” By agreeing to AAA arbitration, the parties would thus appear to have “vested the arbitrator with the authority to decide the issue of arbitrability.”

Unless your contract contains an unusually narrow and quali-fied arbitration clause, chances are very good that the matter will go to arbitration.

Pleadings

The initial arbitration pleading, filed by the claimant, is a de-mand. The only requirements of the AAA rules are that the de-mand state the nature of the dispute, the names and addresses of the parties, the amount involved, the remedy sought, and the hearing locale. AAA Commercial Arbitration Rules § R-4. This can be accomplished simply by filling out a one-page AAA form. We have seen some practitioners commence arbitrations, even in large and complex cases, with nothing more. That certainly has the advantages of speed and simplicity, and makes sense if there is a race to secure a preferred forum. But the more com-mon and better practice is to file a demand that resembles a civil complaint—with some important differences.

Illustration by Stephanie Dalton Cowan


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Instead of a bare-bones, short and plain statement of your claim, it is a good idea to file a demand that presents the essen-tial facts and arguments of your case in a persuasive and com-pelling way. Unlike the pleadings in a civil case, the pleadings in an arbitration get close attention from the decision makers. The demand is the first thing that an arbitrator will see that tells him or her anything about the substance of the dispute, and the arbi-trator will read it. You should not pass up this first and earliest opportunity to begin persuading the arbitrator of the justice of your cause. The AAA rules do not require it, but they “encourage” the parties “to provide descriptions of their claims in sufficient detail to make the circumstances of the dispute clear to the ar-bitrator.” Id. § R-4(d). You should not need that encouragement.

The claimant pays a filing fee based on the dollar amount of its claim. Having received the demand and the fee, the AAA then sends the “respondent” a “notice of filing” of the demand. This starts a 15-day period for the respondent to file an “answering statement,” which may include a counterclaim. There is no need to worry about a default judgment; a party that files nothing is “deemed to deny the claim,” and the case goes forward. Id. § R-4(c). But it is good practice to file something. Even if the claimant has filed only the one-page AAA form, you should take the opportunity to explain the case to the arbitrators and to lay out your defenses.

If the claimant filed something like a conventional complaint, respond as usual, paragraph by paragraph, but do not confine yourself to the ritual admissions and denials of an answer filed in court, which probably gets the least attention of any document in a civil case. The “answering statement” in an arbitration is very different. The arbitrators read whatever you file, and this is their introduction to your case. You need to show them that you have strong defenses, and you need to start trying to persuade them in this very first submission.

As counsel to claimants, we have been surprised to see an-swering statements filed by sophisticated counsel that were basically unreadable because they said only that the respondent admitted, denied, or was unable to admit or deny the allegations of numbered paragraphs, but in no way told a story or tried to show that the respondent should win the case. The result was that, going into the first encounter with the arbitrators, we had the benefit of a one-sided presentation of the case.

A potential trap for the unwary is the provision in Section R-43(d) that the arbitrators may award attorney fees “if all parties have requested such an award or if it is authorized by law or their arbitration agreement.” Even if the contract does not provide for attorney fees, the panel may thus award them if you and your opponent both ask for them. So be careful what you ask for, especially if you think you have the weaker case. If you are the respondent, do not unthinkingly mirror the claim-ant’s request for fees, or you may have some explaining to do when the award comes out.

Another potential trap for the unwary in the AAA Commercial Arbitration Rules is the requirement in Section R-7(c) that the respondent “must object to the jurisdiction of the arbitrator or to the arbitrability of the claim or counterclaim no later than the filing of the answering statement.” The claimant might include in its demand claims or issues that are not clearly arbitrable and others that are. That might happen in only a sentence or even part of a sentence. If you do not pick up on it and raise an objec-tion in your answer, you may face a waiver argument.

The AAA rules do not specify that waiver is the consequence of a failure to object. As with most AAA rules, there is little or no case law. But on this issue, there is at least one case—Sciamarelli v. Semet, 2010 Unpub. LEXIS 1019 (N.J. Super. Ct. App. Div. May 10, 2010)—in which the respondent did not raise an arbitrability objection in his answering statement but did so later in his arbi-tration brief. The arbitrator issued an award without addressing the issue. On a motion to vacate, the court held that the arbitrator had erred in failing to decide the issue, and the court rejected the argument that the arbitrator must have decided that the objec-tion was untimely under section 7(c) because the objection was not raised in the answering statement:

We see no reason why an arbitrator might not also permit consideration of the [arbitrability] argument on its merits despite an untimely objection, in the manner in which our courts will also at times excuse procedural missteps in order to decide cases on their merits.

This is a good response to a waiver argument.What if an objection to arbitrability is first raised in an amend-

ed answering statement? The AAA rules simply do not address that (like so much else). Certainly, the respondent would have an argument that arbitrators, like judges, should liberally permit amendments to ensure that cases are resolved on their merits, not on technicalities or pleading deficiencies, and that in the absence of bad faith, undue delay, or prejudice, the respondent should be permitted to raise such objections in an amended filing.

selecting the arbitrators

When the pleadings are complete, it is time to appoint an arbi-trator or arbitrators. The AAA rules contain an appointment procedure to be followed if the parties “have not appointed an arbitrator and have not provided any other method of appoint-ment” (section R-11), but usually the contract will specify how the arbitrator(s) will be appointed. The most common method is for each party to name an arbitrator and for these two party-appointed arbitrators to then pick a third arbitrator to serve as a chairperson. Unless the parties have agreed otherwise, the


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arbitrators whom they appoint must meet AAA standards of impartiality and independence. Id. § R-17(a). They are “neutrals,” not advocates.

Picking the right arbitrator can be instrumental to a success-ful outcome. What should you be looking for?

First, you want someone whom you believe you can persuade. It would be wrong to assume that just because you have ap-pointed the arbitrator, he or she is going to decide the case in your favor. That is simply not true; most arbitration decisions, in our experience, are unanimous, which of course means that an arbitrator voted against the party that appointed him or her.

Interview any prospective arbitrator before making your choice, and gather as much information about him or her as you can from colleagues and others in the legal community. The rules expressly permit you to communicate ex parte with the candidate “in order to advise the candidate of the general nature of the controversy and of the anticipated proceedings and to discuss the candidate’s qualifications, availability, or independence in relation to the par-ties.” Id. § R-18. It is important to do this, to see how well you relate to the candidate (assuming you do not know him or her already), and to explore and understand any relationship the candidate has had with your firm or with opposing counsel. Has he or she been co-counsel with members of your firm? Has he or she litigated against your firm, and if so, how was the experience? Does he or she respect your firm? Have you referred work to his or her firm, or vice versa? Does he or she have personal friendships with any of your partners? Is he in an “inn of court” or club with members of your firm? And so on. You want to be aware of any circumstances that might give your firm, and you, an added measure of credibility with the candidate. (And, of course, you want to figure out if the candidate is close to your opponent.) The object is not to find an arbitrator who is biased, but to find one who, for entirely appropri-ate reasons, might tend to be receptive to your arguments.

Second, you want to pick someone whom you believe can per-suade other lawyers—specifically, the two other lawyers on the panel. If the arbitrator agrees with your position, you need him to persuade at least the chairperson to win the case. So you need a consensus builder, someone who is smart but not arrogant, who gets along well with others and is not only liked but respected by his or her peers. One measure of this is whether the candidate has been selected by his or her peers as a leader in bar association or other activities. Find out whether the candidate has served on other arbitration panels, and if so, whether the outcomes were unanimous. A candidate with knowledge of the relevant industry could be a terrific asset to you in the panel’s deliberations, particularly if the case involves technical issues or special industry practices.

Is there any reason to prefer a former judge? We don’t think so. Trial court judges are deciders, not persuaders, by profession. You are looking for a persuader. A former judge may command respect and deference, but we are not convinced that is a sufficient

reason to appoint him or her unless the former judge has the other characteristics outlined above.

Choosing the Chairperson

Third, you want someone whom you can trust to pick a good chairperson. After the two party-appointed arbitrators have been named, the AAA has them fill out disclosure forms identifying any previous relationship with the parties or their counsel, and then sends the completed forms to the parties. You then have a period of time to object to the appointments. If there is no objection, the two arbitrators are then cleared to appoint the third arbitrator—a critically important job because the third arbitrator can always cast the deciding vote.

The AAA rules expressly permit you to communicate ex parte with your appointed arbitrator about whom the chairperson should be. Id. § R-18. The rules do not prohibit you from talking with can-didates for the role of chairperson, but neither do they permit it; they expressly allow you only to communicate ex parte “with a candidate for direct appointment pursuant to Section R-12”; that is, a candidate whom you appoint yourself. The arbitrator whom you appoint interviews candidates for chairperson and can then discuss with you his or her impressions and opinions. You are involved only indirectly, behind the scenes, and ultimately may have to defer to the judgment of your appointed arbitrator if the candidates are lawyers whom you do not know—as will often be the case in big-stakes liti-gation where the candidates for chairperson can be from far-flung locations, chosen more for their reputation and ability than for their proximity to the hearing locale, the lawyers, or the parties.

What are you looking for in a chairperson? Most important, some-one to whom your appointee believes he or she relates well and with whom he or she has credibility; someone whom your appointee can persuade, if ultimately convinced that your position is correct. Look for proven case management skills if cost, efficiency, or a prompt decision is important. If the candidates include former judges, check their reported decisions to see how they have ruled on claims such as those in your case. Ask other lawyers about the candidates’ ap-proach to case management. And, of course, consider whether they are likely to be receptive to your own arguments, for all the reasons outlined in the discussion above of party-appointed arbitrators.

Here again, the question arises whether to prefer a former judge. We have heard the argument that if the case is likely to be de-cided on purely legal grounds, it is better to have a judge because judges are more likely to look with favor on dispositive motions and on technical legal arguments. We don’t accept this gener-alization. In our experience, many judges are very reluctant to grant dispositive motions, perhaps because of bad experiences with reversals by courts of appeals. We have seen former judges discourage the filing of dispositive motions in arbitration and


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it would be wrong to assume that just because you have appointed the arbitrator, he or she is going to decide the case in your favor.

urge the parties to schedule a single hearing after which all is-sues will be decided. In contrast, practitioners are always filing dispositive motions and tend to believe strongly that cases can and should be resolved on motion. So we wouldn’t automatically prefer a judge just because the case might involve dispositive motions. But if a particular judge has a strong record of granting summary judgments, that might be worth considering.

Occasionally, it happens that the two party-appointed arbitra-tors (in consultation with counsel for the parties) do not agree on a chairperson but do agree on a list of candidates that both sides would find acceptable. In that event, they may also agree on a pro-cess for selecting the chairperson from that list, such as ranking three or four candidates in order of preference and selecting the candidate with the highest combined ranking.

Once the chairperson has been selected, he or she must fill out the AAA disclosure form and the AAA gives the parties time to object to the appointment based on the disclosures. If there is no objection (and it is very unlikely that there will be), the AAA for-mally appoints the chairperson. From that point on, you can have no more ex parte communications with your own appointee relat-ing to the case.

What if you had a good experience with a party-appointed ar-bitrator, and there later arises a similar dispute under the same contract between the same parties? Can you go back to the same arbitrator and appoint him or her again? This should not be a problem. We have seen objections to this by the party that lost the first arbitration, on a couple of grounds. One argument is that the arbitrator will disclose information from the earlier case to the current panel and thus breach the confidentiality of the first arbi-tration, violating Canon VI of the Code of Ethics for Commercial Arbitrators. This is not one of the grounds for disqualification listed in Section R-17 of the AAA Commercial Arbitration Rules, and it has been rejected in case law. In Trustmark Ins. Co. v. Clarendon Nat’l Ins. Co., No. 09C6169, 2010 U.S. Dist. LEXIS 807A (N.D. Ill.

Feb. 1, 2010), for example, the court rejected an argument that disclosure of confidential information from a previous case was

“inevitable,” and the court observed that an “arbitrator is still able to articulate her viewpoints with reference only to the record in front of the [current] arbitration panel, and without reference to prior arbitrations”—thus, the arbitrator “does not need to disclose confidential information as part of her duties as an arbitrator.”

Another argument we have seen in these circumstances is that the arbitrator cannot be impartial because the arbitrator has al-ready prejudged the facts or legal issues between the parties and cannot erect a “Chinese wall” in his or her head. Again, the courts have not been receptive to this argument. The Trustmark court, for example, noted that there is a “strong presumption” that “ar-bitrators can disregard what they already know” from an earlier related case. Another court noted:

The selection of an experienced arbitrator necessarily entails the risk that he has already encountered the question of law which might arise. To hold that such a prior decision makes out a claim of partiality . . . would be to turn that ground of vacatur into a vehicle for “forum-shopping” among arbitrators.

Conroy v. Country Wide Ins. Co., 427 N.Y.S.2d 646, 647–48 (N.Y. App. Div. 1980).

So, although there may be unusual and compelling circum-stances in which involvement in a previous case might be evi-dence of “partiality” or “lack of independence,” anyone raising that argument will face a very high burden indeed. It is also worth noting that a motion to disqualify in these circumstances would be directed to the AAA (under Section R-17(b) of the rules), which in our experience decides the matter without argument, without a reasoned decision, and without any opportunity for review. These motions go into a black box.

The arbitrators are required to keep all aspects of the arbitra-tion confidential, under Canon VI. But nothing in the AAA rules requires the parties to keep anything confidential. Unless there is a confidentiality provision in the parties’ contract, an arbitra-tion is no more confidential than a court case.

Preliminary hearing

Once a panel is in place, the first event in the case is likely to be a preliminary hearing. It establishes the procedural framework of the case, like an initial scheduling conference in court. It almost always takes place by telephone and is led by the chairperson, with a representative of the AAA (the “case manager”) listening in. The AAA sends out a form agenda in advance, which in our experience is not followed closely, if at all.


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It is a good idea to confer with your opponent before the pre-liminary hearing to see whether you can agree on any procedur-al items such as a date for the exchange of documents; whether depositions will be permitted, and if so, how many; a motions deadline; deadlines for expert reports; potential hearing dates; whether there will be pre – and/or post-hearing briefs; and so on. Arbitrators are generally even more likely than judges to accept agreements between the parties—arbitration is, after all, a creature of contract—so it is definitely worthwhile to think in advance of the preliminary hearing about what procedures are most likely to help your case and to try to reach agreement on those procedures with the other side. You have far more freedom in scheduling here than in court, especially when it comes to hearing dates, and you should be able to get a reasonably prompt and convenient hearing on the merits.

The preliminary hearing usually starts with a brief statement by each party of its claims or defenses. If the panel doesn’t ask for this, you should offer it. This is your second chance to start persuading the panel early. You should be prepared with a 5-to- 10-minute summary of the facts you will prove and the reasons why you should win. Come out swinging.

A subject that is certain to come up, particularly in a large and complex case, is discovery. There are no AAA rules on discovery, except one that permits arbitrators to “direct (i) the production of documents and any information, and (ii) the identification of any witnesses to be called.” AAA Commercial Arbitration Rules § R-21(a). In “large, complex commercial cases”—cases in which more than $500,000 is at stake—the arbitrators are authorized to order depositions and interrogatories. Id. § L-4(d). The most contentious item is likely to be depositions. You have no right to these, and may face resistance from the other side, even if you are willing to put up your own people for deposition. The best approach in these circumstances is to show the panel that there are specific issues on which you need discovery and to ask for only a few depositions or a 30(b)(6)-type deposition on those issues. If you do that, the panel is likely to allow at least limited deposition discovery (such as three depositions for each side, limited to four hours each).

In a case involving few or no significant factual disputes and no experts, consider proposing a schedule under which the par-ties file cross-motions, supported by affidavits, on which the panel hears oral argument, to be followed by either a decision of the panel or an evidentiary hearing if the panel determines that it needs to hear live testimony. We have agreed to such a procedure in several arbitrations and have called the cross-motions “motions for summary judgment.” There is, however, no “summary judgment” procedure in the AAA rules. The AAA’s employment and construction arbitration rules provide for “dis-positive motions,” but its Commercial Arbitration Rules are silent on this point. Case law has recognized, appropriately, that arbi-trators can nevertheless decide an AAA case under those rules without an evidentiary hearing. Schlessenger v. Rosenfeld, Meyer & Susman, 40 Cal. App. 4th 1096 (1995). The panel should not consider itself constrained by hornbook summary judgment law reserving issues for trial if, drawing all inferences against the moving party, reasonable jurors could find against the movant. After all, there is no jury to decide the case if the arbitrators do not. The issue on these cross-motions should simply be whether the arbitrators can decide the case on the papers or whether they need to hear witnesses to resolve credibility disputes or to obtain more information than the parties have presented by affidavit.

The possible advantages of such a procedure are several:

• It can obviate the need for an evidentiary hearing, which can be expensive, difficult to schedule or to complete in one sit-ting, and a distraction for company witnesses.

• It can lead to a more efficient and earlier conclusion of the case.• It may work to your advantage if you have a case that you can

present more effectively on paper than through witnesses.• It can at least sharpen the issues and result in a more focused

evidentiary hearing, if there is one.

The possible disadvantages are the expense and delay re-sulting from two hearings instead of one. But the additional expense may not be that great if the motions hearing causes the panel to focus tightly on one or two issues and thus shorten the evidentiary hearing. (Moreover, there is a good chance that the oral argument on the motions may lead to a settlement after the parties have seen each other take their best shots and have heard the questions and comments of the arbitrators.)

A discovery issue that might arise at the prehearing confer-ence is whether the panel will subpoena documents or deposition testimony from third parties. There is no question that the arbi-trators can subpoena a third party to produce documents or give testimony at a hearing; Section R-31(d) of the AAA’s Commercial Arbitration Rules provides that “an arbitrator or other person authorized by law to subpoena witnesses or documents may do so upon the request of any party or independently.” But there is

Trial court judges are deciders, not persuaders, by profession. you are looking for a persuader.


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a split of authority on whether a court can enforce a subpoena that would require a prehearing production of documents or deposition, and the panel may be reluctant to issue a subpoena that would not be enforced.

Section 7 of the FAA states that arbitrators “may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document or paper which may be deemed material as evidence in the case.” 9 U.S.C. § 7. This can be interpreted to mean that arbi-trators can only compel attendance and document production at a hearing where the arbitrators are present. The Second and Third Circuits have so interpreted it. Life Receivables v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 218 (2d Cir. 2008); Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3d Cir. 2004). But the Sixth and Eighth Circuits reached the opposite conclusion, finding that section 7 “implicitly include[s] the authority to com-pel the production of documents for inspection by a party prior to the hearing.” Am. Fed’n of Television & Radio Artists, AFL-CIO v. JWBK-TV, 164 F.3d 1004, 1009 (6th Cir. 1999); In re Sec. Life Ins. Co. of Am., 228 F.3d 865, 870–71 (8th Cir. 2000). These courts did not reach the question of whether an arbitrator may subpoena a third party for a discovery deposition. See Am. Fed’n of Television & Radio Artists,164 F.3d at 1009 n.7. Their rationale for finding that the FAA authorizes prehearing document sub-poenas would seem, however, to apply equally to prehearing deposition subpoenas.

So it might be unclear whether you can compel prehearing discovery from a third party. One possible solution, approved by the Second and Third Circuits, is to have the arbitrators subpoena third parties to “attend before them or any of them” at a separate hearing independent of the hearing on the merits, conducted by only one member of the panel, and addressing only document pro-duction or testimony. See Hay Grp., 360 F.3d at 413 (Chertoff, J., concurring); Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 577–79 (2d Cir. 2005). As a practical matter, the issue may not come up because the panel may be willing to issue a subpoena and to leave the question of enforceability to the courts, and a third party served with the panel’s subpoena may not choose to resist it.

Note that many state arbitration laws are different from the FAA in this regard and expressly authorize arbitrators to issue subpoenas for depositions. E.g., Ohio Rev. Code § 2711.07.

Jurisdiction

A couple of jurisdictional arguments may arise that are peculiar to arbitration. One is based on the common “no modification” clause in the parties’ contract providing that the arbitrators shall have no authority to amend or modify any of the terms of the contract and/or to enter any award that has that effect.

There is a lot of case law on such provisions, mostly labor cases, that you or your opponent may draw on to argue that the relief being sought in the arbitration is so inconsistent with the plain terms of the contract that to grant it would be to change the contract—something that the arbitrators are without power to do. In a Sixth Circuit case, for example, the contract defined an employee’s absence for more than three days without notice as a “voluntary quit.” An arbitrator ordered reinstatement of an employee who had indisputably been absent for more than three days, and the arbitrator excused the lack of notice on the ground that the employer had acted unreasonably. The court of appeals vacated the award on the ground that it violated a “no modification” clause:

Had the arbitrator not unilaterally resorted to creating con-tract terms and conditions beyond those that had been nego-tiated by the parties, he would have been bound to rule in favor of the [c]ompany. . . . Any other disposition would be a total disregard for the plain language of the contract.

IBEW v. Thomas & Betts Corp., 182 F.3d 469, 472 (6th Cir. 1999).

These principles have application in all sorts of commercial contexts, and you should consider whether there is a similar basis for arguing that the arbitrator simply cannot grant the relief sought by your opponent.

Another possible argument arises in a “baseball” arbitration, where the contract limits the arbitrator(s) to awarding the exact relief proposed by either the claimant or the respondent. If the contract narrowly defines the issues that are subject to arbitra-tion, there may be an argument that the panel cannot even con-sider the relief proposed by one of the parties because it cannot do so without deciding other disputed issues that the parties did not commit to arbitration. For example, assume that arbitrators are empowered to revise a price formula in the contract; one of the parties makes a proposal that includes the use of estimated consumer price index data before the final numbers become available from the Department of Labor; the parties dispute whether the use of estimates is permitted under the contract, and the contract does not say anything about arbitrating that particular dispute. There is not much law to cite if this kind of argument arises, apart from the general rule that arbitrators have “the jurisdiction and obligation to decide any issue neces-sary for the resolution of the controversy submitted for arbitra-tion.” Amgen, Inc. v. Ortho Pharm. Corp., 708 N.E.2d 385, 391 (Ill. Ct. App. 1999); accord Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1146 (10th Cir. 1982). (“Parties who agree to submit matters to arbitration are presumed to agree that everything, both as to law and fact, necessary to render an ultimate decision is included in the authority of the arbitrators.”)


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The hearing

The hearing generally takes place in a conference room in one of the arbitrator’s offices and can be considerably more informal than a courtroom trial. Under the AAA rules, “conformity to legal rules of evidence shall not be necessary.” AAA Commercial Arbitration Rules § R-31(a). An arbitrator may, however, “exclude evidence deemed by the arbitrator to be cumulative or irrel-evant.” Id. § R-31(b). There is, accordingly, no point in making hearsay or other technical evidentiary objections, or motions to strike, during the hearing. But do speak up if you have a good relevance objection.

The degree of formality at the hearing varies widely. The important thing is to prepare your witnesses for a relatively in-formal environment, in which there may be banter among the panelists or between the panelists and the lawyers and witnesses. Your witnesses should not let their guard down and should un-derstand that no matter how friendly it all seems, the lawyers for the other side are out to destroy your client’s case and to take your client’s money, and that this is very serious business.

The AAA does not provide a court reporter. It makes sense to hire a reporter so that you have transcripts of at least some of the proceedings for use in your closing and post-hearing briefs and a record in the event of litigation over the award. (A reporter’s notes could also be very useful if a panel member has to resign for health or other reasons during an adjourned hearing.) Share the cost with your opponent. If cost is an issue, there is no need to have the reporter’s notes transcribed until and unless there is subsequent litigation.

Because your audience at the hearing is not a jury, but lawyers in mid– to late career, you can and probably should rely less on audiovisual aids than you would in a courtroom. These folks have no problem with short attention spans and do not need to be entertained. They just want the tools to make the right de-cision. We have found it effective in contract cases to give the panel a one-page handout containing the key operative language from the contract, so that this is always in front of them. If we are arguing motions and the argument touches on a key docu-ment, we hand a copy of the document to each arbitrator. The only visual aid that we use is an overhead projection of exhibits, using PowerPoint, during examination or cross-examination of witnesses, because it is helpful to have the witness and every-one else in the room looking at the same thing. But in closings, we dispense with the PowerPoint, preferring to speak simply and directly to the panel, and to have their eyes on us instead of on a screen.

Because you are arguing to lawyers, it can be effective to organize your closing by the individual issues that the panel must decide and to give the panel highlighted documents and testimony for each issue showing that they should decide in your

favor, all collected in a notebook with a tab for each issue. If you do something like this, you know that the panel will have at its fingertips when it decides your case all of the evidence that you believe compels an award in your client’s favor.

We generally propose an exchange of posthearing briefs, too. The benefit of such briefs is that the panel will then have not only your evidence but also your argument to review when deliberat-ing over an award.

The arbitration hearing is not formally closed until the post-hear-ing briefs and any additional evidence have all been submitted and the arbitrators formally declare the hearing to be closed. Id. § R-35. At that point, the arbitrators have 30 days to make their award, un-less the parties agree to extend that deadline. Id. § R-41.

It comes as a surprise to many that under AAA rules, arbitrators do not have to explain their award unless the parties have requested a

“reasoned award” before the arbitrators were appointed. Id. § R-42(b). This is obviously something that is important to keep in mind at the earliest stage of the case. Most clients will want to have a reasoned award, if only because they want an explanation for the result af-ter putting so much time and money into it. Moreover, a reasoned award can provide much-needed clarity on issues that may recur between the parties. And any challenge to the arbitrators’ decision will be more difficult if the grounds for the decision are unknown. In the absence of special considerations, such as insurance coverage issues that might cause you not to want specific findings or conclu-sions from the panel, it is probably best to request a reasoned award.

A misconception about arbitration is that arbitrators tend to “split the baby” and search for compromise solutions so that no one is too unhappy with them. This is not so—in more than 90 percent of cases, the arbitrator(s) accept the position of one party and reject the position of the other.

Confirmation/vacatur

Under the FAA and state counterparts, you have a full year to seek confirmation of an award, but only three months to move to vacate it, on very limited grounds. 7 U.S.C. §§ 9, 12. Because filing a motion to confirm may prompt your opponent to file a motion to vacate, it might make sense as the winner to wait four months, unless there is a need to confirm the award promptly and use court processes to enforce it.

Overall, most trial lawyers will find arbitration a rewarding process that frees them from the constraints of the Rules of Civil Procedure and Rules of Evidence, allows them to exercise their advocacy skills in a more informal and flexible setting, and de-livers justice for their clients swiftly and efficiently. q

The views set forth here are personal views of the author and do not necessarily reflect those of his firm.


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The Ethics of Joint Representation

l u c i a n T. p e r a

The author is with Adams and Reese LLP, Memphis.

We all do it. We all ought to be capable of doing it. But we all ought to do it more carefully.

From time to time, lawyers are called upon to represent more than one client in the same matter. Call it joint representation or call it multiple representation, it is an essential, everyday capability that we simply must have in our repertoires. For that reason, we all need regular reminders about how to do it ethi-cally and prudently.

Let’s start with a fundamental principle: Before, during, and after a joint representation, treat all joint clients equally in all respects, including loyalty, confidentiality, communication, and decision making.

Although simple to state, the principle is often hard to execute. It’s hard when one of several clients is a long-time client or sends the lawyer’s firm much work or is the one paying the freight on this joint representation. The principle is equally difficult to implement when one client is the articulate spokesperson for the client group or the most knowledgeable about the facts. It’s often easy to forget there are multiple clients who must be honored equally.

Try not only to treat joint clients equally but to make spe-cial efforts to show it. Think about how your communications and conduct will look in retrospect. For example, even if one of five clients is the designated spokesperson for the group, consider finding a diplomatic way to direct regular (maybe all)

communications to all the clients, perhaps in a way visible to all—for example, a letter or email with all the clients as equal addressees.

minding the model rule

Any lawyer’s first conversation about a possible joint representa-tion should trigger a simple question: “Can I ethically do this?” Assuming that taking on the proposed joint clients would not place the lawyer directly adverse to an existing client or materi-ally adverse to a former client in a matter substantially related to the lawyer’s prior work for the former client, the key ethics rule for assessing multiple representation is ABA Model Rule of Professional Conduct 1.7. Section (a)(2) of the rule says that a conflict exists if “there is a significant risk that the representa-tion of one client”—here, each client in a joint representation—

“will be materially limited by the lawyer’s responsibilities to another client.”

Model Rule 1.7(b) says that, even if a lawyer does have a “ma-terial limitation” conflict—for example, because representing both defendants in a particular product liability case will mean that some defenses are off-limits to each joint client—the two cli-ents may still consent to the joint representation if each client is fully informed about the risk and benefits of joint representation,


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if they each give informed consent, if the two clients are not asking the same lawyer to assert claims against each other in litigation, and if the lawyer “reasonably believes” that he or she

“will be able to provide competent and diligent representation to each affected client.” (This article uses “consent” and “waiver” interchangeably.)

If a lawyer’s joint representation of two parties in litigation would force one or both to give up the opportunity to pursue some particular claim or defense so essential to that client that it would be less than competent and diligent representation not to raise it, then that client is not permitted to consent to the joint representation, and the lawyer cannot ethically ask for consent. Perhaps in a product liability case, a lawyer might conclude that it would be less than competent representation to allow a retail seller, as the price of a joint representation, to walk away from a potential defense that the manufacturing defendant was guilty of poor design. If so, the conflict is “nonconsentable,” and there can be no joint representation.

In the transactional context, a commonly cited example of a non-consentable joint representation is the proposed repre-sentation of the buyer and seller of a business, where a lawyer representing both parties would be unable to advise either buyer or seller about some highly material point on which they had not yet agreed and still needed to negotiate—perhaps the inclusion or scope of a noncompete provision restricting the seller. Would it be competent and diligent representation to leave the parties to their own devices to resolve that issue, removing it from the scope of the representation? If not, it’s nonconsentable.

Any decision about what constitutes competent and diligent representation is extremely fact-intensive. If the potential claim between the parties is dubious on the merits, if the business or family relationship between the potential clients is strong, or if the amount in controversy is small, it may well be that “com-petent and diligent representation” would permit the potential clients to set aside any issues or claims between themselves and ask one lawyer to represent them ably in a carefully and consciously limited manner.

Whether a conflict of interest, inherent in almost any joint representation, is consentable or nonconsentable may well also depend on the practice area or procedural context in which it arises. Courts are traditionally extremely wary of joint rep-resentations of criminal defendants, due to each defendant’s constitutional right to the effective assistance of conflict-free counsel and the full knowledge of the intense judicial scrutiny given later claims of ineffective assistance. In contrast, business lawyers and civil courts often take a much more relaxed view of what is consentable, particularly when sophisticated com-mercial parties are involved.

In some jurisdictions, and in some practice areas, special rules or doctrines prohibit or limit joint representation. In criminal

cases, the Federal Rules of Criminal Procedure (appropriately) put a thumb on the scales against joint representation (Fed. R. Crim. P. 44(c)), placing an express obligation on the court to inquire into and justify any proposed joint representation, for reasons discussed above. Some jurisdictions (for example, New Jersey) ban joint representations of buyers and sellers in real estate transactions. Check your rules carefully and consider the need to draft engagement agreements appropriately.

No lawyer needs an ethics expert to tell him or her that many joint representations that are perfectly ethical to undertake are, in practice, unwise. No matter the care taken up front to evaluate a prospective multiple representation and to expose all relevant facts, they almost always change over the life of a case. Just as significantly, the feelings, attitudes, and business positions of clients can also change unexpectedly. And in a joint representa-tion, the lawyer can be left holding the bag.

The faithful employee whose joint defense was happily under-taken at the employer’s expense later turns out to have secretly committed sexual harassment. Or the employee turns out to be a disloyal ingrate, running off to work for the competition in the midst of litigation. Or the borrower and lender who had worked out all the details of a loan and desperately wanted to keep legal costs to a minimum realize only far into the deal that they disagree over the need to enhance the collateral after an appraisal comes back lower than expected.

Veteran lawyers know that it’s always a headache when joint clients become unhappy about their “jointness,” for whatever reason. Moreover, no two lawyers have identical tolerances for risk. Prudent lawyers always take these factors into account.

Some factual scenarios consistently have a greater tendency to end up in discord and stickiness. These especially include situ-ations where a serious power imbalance exists between clients or where the consequences of one client losing the services of the lawyer are very high, such as where the lawyer has a 20-year relationship with one client and knows intimately that client’s business affairs and needs. Certain types of claims and litiga-tion, or certain kinds of transactions, carry known patterns of unforeseen twists and turns that can lead to conflicts: repre-senting the injured passenger and driver in certain kinds of auto accidents, representing the employer and supervisor in certain kinds of employment discrimination claims, or representing the buyer and seller in most business acquisitions.

avoiding “accidental Clients”

Before turning to structuring a joint representation, we brief-ly detour to the land of “accidental clients.” That memorable phrase was coined by Professor Susan Martyn of the University of Toledo College of Law to describe situations in which a lawyer


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has little or no idea that a client relationship even exists—at least not until it’s too late. How is that possible?

If a lawyer acts in a way that leads a person to reasonably be-lieve that a lawyer-client relationship exists between them, and the person relies on this conduct, then the law will generally impose one, even without any express agreement or mutual consent. Section 14 of the Restatement of the Law Governing Lawyers confirms this principle, as do many cases.

Joint-representation-by-accident can occur, for example, if while investigating a claim against the company, the company lawyer interviews a key corporate player, and the interviewee concludes, reasonably under the circumstances, that the com-pany lawyer also represents the interviewee. While forming a corporation for a new business, the lawyer for the primary organizer deals frequently with both the key salesman for the new business and the genius employee whose software will power its website, only to discover much later that the key salesman or the software genius reasonably believed that the lawyer was looking out for him in connection with the minority equity interests they were to receive.

Careful, thoughtful, and complete communication is the key to reducing the risk of becoming a lawyer by accident. No supposed client can reasonably believe he is your client if you clearly and unequivocally assert to him that you do not repre-sent him. A disclaimer precludes a claim of reasonable reliance.

Thus, the company lawyer interviewing key corporate per-sonnel can, and should, carefully explain to interviewees that he is the company’s lawyer, not their lawyer, that anything they say to him will be passed on to the company, and that their statements are not confidential. Proving up an accurate

“corporate Miranda” warning should defeat any later claim that the interviewee was a client.

The business lawyer forming the new company can, and should, explain to the key salesman and the software genius that he is only representing the primary organizer, not them, and that they may want to talk with their own lawyers. Oral is good; written is better. Hence, the “I’m-not-your-lawyer” letter or email. Judiciously employed, it can save a lawyer from the accidental client and prevent the accidental joint representation.

informed Consent is a Process

Not every joint representation creates a conflict of interest. But look at the language of Model Rule 1.7(a)(2): There is a conflict of interest if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Comment [8] to the rule helps a little:

The mere possibility of subsequent harm does not itself re-quire disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alterna-tives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Many lawyers do not adequately consider the rule’s contem-plation that there may be no present material limitation at all, merely the possibility of a material limitation in the future, and that this risk may be great enough to create a conflict of interest in the here and now.

So, yes, there are joint representations where there is no con-flict of interest under the stringent analysis of this rule—two happily married parents suing for the wrongful death of a child or a company and its sole individual owner defending contract

and tort claims arising from the same incident. If joint clients’ interests are so well aligned, then no ethics rule requires any waiver of any conflict of interest. Still, simple prudence usually dictates an intelligent discussion with the clients or a confirma-tion of the conversation in writing. Cases and other representa-tions take altogether unpredictable factual turns. So do clients: Happy marriages sour, individuals die, and companies fail or are sold. And at that point, what has now actually happened appears, in retrospect, ever so much more likely to have been foreseeable.

Draft a letter using simple terms such as, “We do not believe that a conflict of interest exists in our proposed joint represen-tation of you, but we have nevertheless discussed with you the possibility that one could arise in the future and what might happen if one does arise.”

Still, informed consent is a process, not a letter. Careful law-yers have always done their best to get consent to joint repre-sentations in writing. In 2002, the ABA amended the Model Rules of Professional Conduct in numerous respects, and one of the most important was the addition of a requirement that all waivers of conflicts of interest must be confirmed in writing.

Who should consent? With individuals, an easy question; with organizations, not always so. Authority to consent is almost exclusively established by law outside the ethics rules—law con-cerning the governance of the type of organization in question. The limited advice on this subject in Model Rule 1.13(g) merely

Treat joint clients equally and make it show.


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tracks most governance law in advising that, where the conflict arises from joint representation of an organization and one of its officers or employees, someone other than the involved officer or employee has to give consent for the organization.

Further, whether the client is an individual or an organiza-tion, it is almost always in the lawyer’s personal interest, and usually in the client’s interest, for the lawyer seeking consent to obtain it from or through another lawyer for the individual or organization, if one is available—for example, in-house counsel.

Who should be involved in or present for communication about consent? Does the client’s president need to be involved in the discussions, even though she has delegated the handling of the matter to the sales vice president? If husband and wife, both with children and assets from before their marriage, seek estate planning advice, or if company and line employee are both to be represented in a lawsuit, should both be in the room for the discussion? Savvy estate planning or employment lawyers advise that separate one-on-one meetings with each spouse, or with only the employee present, significantly improve the chances of candor and client understanding.

The key topics for discussion are the risks and benefits of joint representation and the alternatives to it. The goal under Rule 1.7(a)(2) is “informed consent.” Model Rule 1.0(e) defines the

“informed consent” needed as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Comments [6] and [7] to Model Rule 1.0 explain that the information and explanation needed vary dramatically, based on the decision to be made, the information the client already had, and the client’s understanding, experience, and sophistication.

Comments [18] and [19] to Rule 1.7 make it clear that the lawyer must discuss with the potential joint clients such matters as “the implications of the common representation, including possible ef-fects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.” Of course, the lawyer should also discuss the alternative—separate representation—and its costs and benefits.

Comment [29] to Rule 1.7 points to the single greatest risk of joint representation—the possibility that joint representation will fail and the clients will have to obtain new lawyers: “[T]he result can be additional cost, embarrassment and recrimination.” Clients clearly need to hear and consider this.

A candid discussion about confidentiality is absolutely critical to any client discussion about a joint representation, especially where a conflict waiver is needed.

Under the prevailing interpretation of the attorney-client privilege in most U.S. jurisdictions, without some different agreement between two joint clients, a lawyer may share with either client information provided to the lawyer confidentially by

the other client. Put another way, there are no secrets between joint clients—at least none to which their lawyer is privy—but the privilege remains intact as to the rest of the world.

Model Rule 1.4 on communications with clients requires a lawyer to keep a client informed about all material aspects of the representation, but what if one of two joint clients instructs a law-yer not to share some particular information with a joint client? Under Rule 1.6, that instruction seals the lawyer’s lips. What to do?

Comments [30] and [31] to Model Rule 1.7 strongly and wisely caution the lawyer to obtain agreement in advance from joint clients to share all confidential information concerning the rep-resentation with the other joint client.

Some clients simply don’t understand that everything they tell their lawyer may be shared with their co-client. Some cli-ents think they can share some private thought or fact with their lawyer without their lawyer sharing it with the other joint cli-ent. There is no substitute for clear education by the lawyer and understanding by clients of this point before the representation begins or for a short, clear paragraph in a confirming letter that lays out the rules of the road on confidentiality.

Despite clear discussion and agreement on this point, a client may still insist that a lawyer withhold information from another client. Even so, the early identification, discussion, and agreement in writing on this issue reduces the likelihood of this happening. If that uncomfortable situation does arise, the fact of the earlier discussion and a confirming writing can be powerful tools to convince a recalcitrant client to do the right thing.

One further word about the consent process: Listen.Many lawyers are wonderful listeners, and this talent is justly

prized by clients. All lawyers need to listen to and watch their potential joint clients very closely during the process of obtaining consent to a joint representation.

When one potential joint client says yes to the representation but in a hesitant tone that reveals unspoken concerns, the careful lawyer explores those concerns. Indeed, one of the most powerful arguments for an in-person conversation about joint representa-tion is that the lawyer may not only listen to the client’s words and tone but may also see each client’s body language, including the clients’ personal interaction with one another.

advance waivers: a useful Tool

Perhaps the most common question that ethics lawyers hear about joint representation is whether a lawyer may ethically structure the representation so that, if the two clients come to blows, the lawyer can withdraw from representing one and continue representing the other. What’s contemplated here is an advance waiver of a conflict of interest. Authority on the use of advance waivers in this context is limited, but many informed


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students of legal ethics believe this is both possible and appro-priate in at least some circumstances.

Comment [29] to Model Rule 1.7 seems to contemplate this possibility—and certainly does not foreclose it—by stating that,

“[o]rdinarily, the lawyer will be forced to withdraw from repre-senting all of the clients if the common representation fails.” This clearly suggests that there are some non-ordinary circumstances in which this would not be true. Moreover, Comment [22] to Model Rule 1.7 clearly establishes ground rules under which ad-vance waivers of this general type are permissible and enforceable.

At least four cautions are in order. First, the comments to Model Rule 1.7 and the case law clearly teach that an advance waiver of a conflict of interest is only as good as the ability of the parties to predict with accuracy, up front, the conflict that actually later arises. The closer the parties come to predicting the conflict or type of conflict that actually arises, the likelier that any advance waiver will be effective. Clear discussion with the client is es-sential, and clear documentation that this discussion took place is the only effective antidote to amnesia.

Second, some courts, some scholars, and some lawyers are plainly hostile (some irrationally so) to almost all advance waiv-ers, and especially so to this type of joint-representation advance waiver. Inevitably, contests on this issue arise where the complain-ing party claims to have been in a position of weakness relative to the other client. If the question comes up in front of the wrong judge on the wrong facts, the odds that an advance waiver like this will be upheld can become long indeed, regardless of what the law allows. For this reason, no lawyer should seek this type of advance waiver without understanding that it may not ultimately be upheld. It is wise to discuss this, in advance, with all parties, especially the client who would be the beneficiary of this waiver.

Third, any such waiver must deal clearly with confidential information. In most circumstances, it would be impossible to continue to represent only one of two formerly joint clients, and to be adverse to the other former joint client, unless the lawyer could freely use any confidential information obtained from the former joint client in any way he or she wished in the continuing representation. Being unable to use such confidential informa-tion that came from the former joint client might well doom the lawyer’s ability to continue in the matter. Therefore, the advance waiver must be clear that the lawyer is authorized by the former joint client to use that client’s confidential information, even in a way that may be directly adverse to that client.

Fourth, even the best-drafted provision of this type must be evaluated afresh if and when a conflict actually arises. If a con-flict arises, a collaborative decision must be made between the lawyer and the client who wishes to have the lawyer continue to represent it about whether the waiver is likely to be upheld. In many situations, the conflict that actually arises may differ, either a little or a lot, from what was discussed or described in

writing, and it is those differences that will most likely decide the waiver’s enforceability. Despite full discussions and brilliant drafting, some conflicts, when they ultimately appear, just turn out to be so difficult or serious that a waiver that looked perfect in the headlights looks chancy in the rearview mirror.

Drafting a Conflict-waiver Letter

Although careful lawyers everywhere have been using conflict waiver letters for years, the profession and the courts generally have only a few years’ experience in drafting and interpreting them. Still, we know a few things already.

Must the client sign the letter? Under the Model Rules and in the overwhelming majority of U.S. jurisdictions, the answer is

“no.” The writing must memorialize the consent, and it must be transmitted to the client, but it need not be signed by the client for the lawyer to avoid discipline.

Should the client sign the letter? Most authorities would say “yes.” Asking someone to sign a document concentrates the per-son’s mind on its subject and emphasizes the subject’s serious-ness. The existence of a signed waiver is also the perfect antidote for any signer’s later amnesia.

Will email do the job? Certainly. Model Rule 1.0(n), defin-ing “writing” and “written,” makes this clear. And an approv-ing email response from the client is every bit as powerful as a handwritten signature in ink.

When must the writing be done? Within a reasonable time after the client gives informed consent, under Model Rule 1.0(b) and its comment [1].

Should the lawyer write one letter to all the potential clients or separate letters to each? Although this is largely a matter of personal style, our cardinal principle of equality among joint clients counsels strongly in favor of similar communications and perhaps a joint letter.

What must or should the writing say? Not completely clear. The ethics rules are not explicit about this, largely because the drafters of the new ABA “confirmed in writing” requirement did not want to make a then-controversial new burden more onerous than necessary.

The primary guidance on this point in the rules is in com-ment [20] to Model Rule 1.7, which notes that “[s]uch a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client follow-ing an oral consent.” The comment indicates that the writing requirement generally

does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well


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as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alterna-tives and to raise questions and concerns. Rather, the writing is required in order to impress upon a client the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.

All of which suggests that a perfect conflict-waiver discus-sion, followed by a one-line confirmation to the client, would comply with the ethics rule and avoid discipline. On the other hand, a careful lawyer might well want to go further.

The purposes of a conflict-waiver letter, apart from meeting the minimal standards of Rule 1.7 are, first, to inform and educate the client and, second, to provide a record of the consent that will remind both the lawyer and client, and demonstrate to any third party, what was agreed. None of us has yet found the perfect for-mula for depth and detail, but a letter that understandably informs the client and also looks good in the rearview mirror is the goal.

Finally, although written engagement letters are not always required by ethics rules, any lawyer undertaking a joint represen-tation, and already investing time and energy in a conflict-waiver letter, would be well advised to treat the letter as an engagement letter and include in it all other pertinent terms of the engagement.

A well-drafted waiver letter can also serve as a tool for a lawyer to organize and confirm his or her thoughts about the propriety and mechanics of the joint representation. If done early enough, it can also serve as a script for a thorough discussion with the client.

On this premise, drafting the letter becomes one of the first tasks in the consent process—even before any conversation with clients—on the theory that it helps the lawyer concentrate on the terms and structure of the representation and on what ought to be discussed with the clients.

Some lawyers draw up the waiver letter before meeting with the clients for this purpose, then share the letter during the meet-ing, allow the clients ample time to read it, and use it as a guide to the discussion. Other lawyers prefer to draft the letter before the discussion, but send the letter afterward, on the theory that it allows clients who take in information better orally, and clients who take in information in written form, each to have a full op-portunity to understand the subject. Techniques vary, but think about the approach that best fits the circumstances of the par-ticular joint representation.

Decisions reserved for Clients

Fees and expenses cause misunderstandings and disputes be-tween lawyers and clients, and joint representations open up ad-ditional avenues for misunderstanding about who is responsible

for payment. Is each of three joint clients responsible for a third of the lawyer’s fees and expenses? Even if they each will pay a third, is each also responsible, jointly and severally, for the whole amount?

Use the opportunity of any writing concerning a joint rep-resentation to confirm the parties’ understanding about fees and expenses. And don’t forget, of course, that some represen-tations, joint or not, already require some sort of writing—for example, contingent fees in almost every jurisdiction, or flat or fixed or nonrefundable fees in a number of jurisdictions.

Some important decisions to be made during a represen-tation are reserved to the client, whether the representation is joint or not, including, for example, the decision to settle claims. Case law and Model Rule 1.2(a) strongly support this notion. Honoring this principle, together with the cardinal rule of equality of joint clients, sometimes renders the negotiation and settlement of claims for joint clients fraught with peril. Clients may view a settlement differently, based on differing economic or noneconomic interests (perhaps reputational), or simple differences in temperament and negotiating style.

A lawyer for joint clients should also be aware that every jurisdiction has a version of Model Rule 1.8(g), which imposes specific requirements on aggregate settlements, including a requirement that each client separately give informed consent to the settlement, in a writing signed by the client. (The Model Rule also applies to the handling of guilty and nolo contendere pleas in criminal cases for joint clients.)

The Model Rule also requires that the lawyer disclose to all joint clients “the existence and nature of all the claims . . . in-volved and of the participation of each person in the settlement.” Thus, each joint client needs to know about the other joint clients’ claims and settlement. These disclosure and consent require-ments of Model Rule 1.8(g) probably also apply even to “plain-vanilla” joint representations of, for example, an employer and employee, where the employer pays the costs of joint representa-tion and settlement, and the employee has little true exposure.

The net result: In most jurisdictions, in almost all circum-stances, decision making on the ultimate settlement of claims is a decision that a client cannot delegate to another client. Bear in mind, however, that the ethics rules and other law have typically honored provisions in liability insurance policies by which an insured grants the insurer an unfettered right to settle claims.

If developments occur during a joint representation that may give rise to a conflict, the rules are clear that a lawyer must promptly investigate, and if there is, the lawyer must do all he or she can to cease work and address the conflict before continu-ing the representation.

Remember that the basic conflict rule discussed above, Model Rule 1.7(a), says that “a lawyer shall not represent a client if” a conflict exists. Thus, if a conflict arises, the rule prohibits the


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1. Identify with precision your clients and the matter in which you will be representing them.

2. Identify anyone in the vicinity who is not a client (but who might somehow think they are), and tell them you are not their lawyer, preferably in writing.

3. Evaluate whether any conflict of interest exists in jointly representing these clients in this matter.a. If there is a conflict, evaluate whether the clients may

ethically waive it, watching out for any prohibited joint representations.i. If the conflict is one that may be waived, consider

whether, under all the circumstances, a waiver is pru-dent, both for you as the lawyer and for the clients.

ii. If so, work through the consent process to obtain a waiver from the clients.

iii. Memorialize the waiver in writing.b. Even if there is no conflict of interest, seriously consider

discussing with the clients the possibility that a conflict may arise down the road.

4. Regardless of whether there is a conflict of interest, con-sider whether, under all the circumstances, joint repre-sentation is prudent, both for you as the lawyer and for the clients.

5. Discuss with the clients how confidentiality works in a joint representation; obtain their agreement to your shar-ing confidential and privileged information between or among them; and consider memorializing the agreement in writing.

6. Establish clearly with all clients who is obligated to pay your fees and expenses, including the specifics of any shared obligation, and seriously consider putting it in writing.

lawyer from continuing the representation, unless the conflict can be waived and unless there is a waiver. Thus, clear disclosure of the conflict is required by this rule, and probably by Model Rule 1.4, which generally requires a lawyer to tell his or her cli-ent about material developments in the representation. Further, absent some form of consent, a conflict generally means that the lawyer must withdraw from the representation of all joint clients.

It may be possible for the lawyer to stay in the matter,

a. If someone other than the clients is obligated to pay your fees and expenses, confirm with all the clients and this third person that this third person is not your client; that this third person cannot direct or control your work, unless the clients agree; and that you can-not share information about the matter with this third person, unless the clients consent. Consider putting all this in writing.

b. If the ethics rules require that the fee agreement be in writing, put it in a form that complies with the rules.

7. Consider whether you should discuss and reach agree-ment with the clients on a plan for your continued rep-resentation of fewer than all the clients if a conflict of interest does arise later. If this is a good idea under the circumstances, discuss and memorialize the discussion and agreement.

8. Before, during, and after the representation, treat all of the clients equally in all respects, including loyalty, confiden-tiality, communication, and decision making.a. Comply with the specific applicable ethics rules on ag-

gregate settlements, if necessary.

9. Throughout the joint representation, be aware of the possi-bility of conflicts of interest arising, and carefully monitor developments that may lead to conflicts, including changes in the facts and procedural posture of the matter, the po-sitions of the clients concerning the matter, and relation-ships among the clients.

10. If a conflict of interest arises in the midst of the represen-tation, evaluate and address it promptly before continuing in the representation.

representing fewer than all the joint clients by way of informed consent. Conflicts arising mid-representation are just like all other conflicts—some can be waived; some cannot—and ask-ing for a waiver of some would just be imprudent. All the same analysis discussed above must be done anew.

Prudence (and probably the law) mandates that any advance consent the lawyer obtained against just such a possibility be evaluated afresh against the conflict that actually developed.

JoinT rePresenTaTion CheCKLisT


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Where the joint clients have a common payor shouldering the cost of the representation, obtaining separate counsel who might then cooperate in a formal or informal joint prosecution or defense could satisfy the common needs of all the formerly joint clients.

Confidentiality is often the key concern. Frequently, it would be impossible for the lawyer to continue for any of the clients without a very clear understanding from the formerly joint cli-ents that the lawyer is free to use any confidential information from or about them in any way the continuing clients may see fit. Regardless of the lawyer’s conclusion, however, prudence argues that he or she should have clear conversations with the soon-to-be-former clients about confidentiality, reach agree-ment, and document the agreement in writing.

The withdrawal Dance

If a lawyer chooses to withdraw from a joint representation or is required to do so, he or she needs to review and comply with the jurisdiction’s version of Model Rule 1.16(c) and (d), which address a lawyer’s obligations on withdrawal.

Little differs in withdrawing from a joint representation than the representation of a single client, but the cardinal principle of equal treatment must rule. Each former joint client has an equal right to client file materials, for example, and the lawyer doubtless has an equal obligation to each former client to assist in transi-tioning the representation, for example, by briefing new counsel.

Experience also teaches that the appearance of equality is often as important as the reality. Consider simple expedients such as providing a duplicate copy of the file to each former joint client.

Withdrawal from almost any litigation matter requires court approval, and the withdrawing lawyer should be very sensitive to the reasons publicly cited to the court and opposing counsel for withdrawal. From an ethical point of view, Model Rule 1.6 and its state analogues restrict how much a lawyer can say when withdrawing. After all, under the broad sweep of confidentiality rules in most jurisdictions, it’s quite likely that some or all of the facts that gave rise to the need to withdraw are confiden-tial. Moreover, in many situations, a lawyer’s disclosure to the opposition and the court that a conflict of interest has arisen between joint clients can have serious adverse consequences for a client. Of course, sometimes, it will simply be necessary to disclose the existence of a conflict; in other situations, it may be obvious to any observer of the withdrawal.

As a precaution, consider obtaining client approval of what is disclosed in aid of a motion to withdraw—or even approval from new counsel for the client—by providing a draft of the intended motion to withdraw.

Not every withdrawal is harmonious, and disputes among former joint clients can create complications. Objections by one former client to the former lawyer’s cooperation with another former client, or even to the former lawyer providing some or all client file materials to another former client, are not unheard of. Once again, focus on the cardinal rule of equality. A withdraw-ing or former lawyer caught between conflicting instructions of former clients simply has no real discretion to choose whose instructions to follow. Just as when a lawyer possesses disputed funds or property (a client file is property of a sort, after all), the lawyer must remain neutral and allow the disputants to sort out their dispute, while doing his or her best to cause no harm and preserve confidentiality.

Even after a joint representation is concluded—happily or not—the nature of the former representation as joint remains important. The nature, extent, and length of a lawyer’s obli-gation (if any) to retain client file materials from a concluded representation is a topic entire unto itself, but the cardinal rule of equal treatment shapes the response of a lawyer to requests from one of several joint former clients. Whatever right a former client may have to information or client file materials, each of several former joint clients likely has that same right.

The (former) jointness of the representation, however, can add a wrinkle. The mandate to treat joint clients equally, and to appear to do so, often leads prudent lawyers to communicate with current clients jointly—letters and emails addressed to all of several joint clients are common from prudent lawyers. So, when one client asks for a copy of the file six months after the matter is over, should the lawyer let the other joint client know of the request and how it has been honored? It is not at all clear that the ethics rules or any other legal duty requires this, but in some situations, prudence may support continued common communication. For example, if the lawyer knows that the two former clients are hostile to each other concerning the former matter, the lawyer may well want to adopt a tone of cool neutral-ity while honoring his or her obligation to provide materials from the file. After all, were one of these former clients to instruct the former lawyer not to inform the other of the request, how would honoring that request be consistent with a lawyer’s duty of loyalty to both clients?

Representing clients jointly is an important aspect of most lawyers’ practices. Yet it is potentially a very delicate area, and we all need to do it more carefuly. q


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M i c h a e l a r n o l d

The author is the manager of litigation technology in LeClairRyan’s Discovery solutions practice in

Richmond, Virginia.

iWitness

The power, convenience, and affordabil-ity of mobile devices such as the iPad, iPhone, and Android-based tablets and smart phones pose challenges for law-yers collecting data. Even though you may use a qualified forensics collection service, understanding the basics is invaluable in drafting discovery requests and knowing your options when responding to discov-ery served on you.

What is so different about the iPad or other tablet?When the first iPod entered the market in 2001, few could envision the impact that this “media player” would have on the business world. Soon the iPod gave way to the iPhone and then the iPad and numerous other devices used in mobile environments with built-in, always-on networking.

Before this mobile work mentality took hold, data were largely created on the hard drives of Windows or Macintosh

personal computers (PCs) and stored in Microsoft Outlook files and Exchange servers, or on network shares. Most desk-tops and laptops were not carried around by their users and connected at all times to the Internet. So when data needed to be collected, it was relatively easy to do so through basic imaging techniques, by forensically moving or copying the data to convenient portable media or by working with an information technology resource to harvest the data from the “computer room” servers.

With tablets and smart phones, we can-not easily crack the cover, as we would on a user’s PC, and have all of the data. We must instead consider how the device was used and develop a clear plan for how to collect and process the data on it. That is because a smart device is not just a replacement for a PC or laptop. Rather, such devices have a whole host of other capabilities, including Global Position System (GPS), 3G/4G wireless, cameras,

and voice recording capabilities. Indeed, applications may be running on an iPad at all hours of the day and may be tracking location data or other application usage. And a user may be storing all of his or her business documents in an online reposi-tory, in a corporate system, or elsewhere in the cloud.

With all of these enhancements come obstacles. Proprietary cables, the diffi-culty or even impossibility of connecting a hard drive to an iPad/iPod/iPhone, and the fact that data may be remotely stored or synchronized are just a few reasons some collection vendors cannot deliver results in the same time frame or for the same cost as for traditional collection from a desktop or laptop computer.

What does all of this have to do with my cli-ent’s iPad and the data that I need to collect in discovery?First, the largest iPad currently has only 64 gigabytes of storage, and because the amount of data that people generate and work with today is much more than that, significant amounts of data are likely to be somewhere in the “cloud.”

Second, more and more companies are either deploying iPads or supporting them for business use. In fact, an increas-ing number of companies are consider-ing or have already implemented “bring your own device” policies allowing per-sonally owned tablet devices to be used in the workplace, thereby increasing the likelihood of finding both personal and business data on the same device. This highlights the importance of considering the types of data available and the meth-ods for preserving, collecting, reviewing, and producing the data. Should you image, how should you have it done, by whom, and what happens after imaging?

Sometimes, in a case where preserva-tion is the only issue, physically replac-ing the device and preserving the original device and data that it contains may seem the least expensive option. However, you still need to know where any data outside

CoLLeCTing DaTa From moBiLe DeviCes


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Illustration by Tim Foley

the device may be and what other devices may affect the data. For example, a user with an iPhone, iPad, and a MacBook may have all of these devices synchronized in the cloud, and data such as email could be changed on one device by actions taken on another.

But if the data that we are interested in do not reside on the device, then we may be wasting valuable time and money. On the other hand, if we are collecting elec-tronically stored information from both an iPad and its user’s computer, and the user was using iTunes to back up, we may be collecting the same data multiple times, at additional cost.

And if a company has implemented a strategic “bring your own device” policy, iPads, iPhones, or other smart devices may have deployed an insulating appli-cation, such as Good Technologies, which limits company data on the mobile device and may even negate the need for mobile device collection in certain instances.

If we do not consider each of the above items, then we may be left with data that we are unable to review readily, that a hosting vendor cannot process, or that just did not need to be collected.

What types of data are on a typical iPad/iPhone?A smart device can contain many types of files, including files that are often found on PCs or laptop computers (e.g., typical business documents and attachments) as well as files that are not often found on the typical business computer (e.g., pictures, synced photos, video files). It might also contain communications files (which may be stored as mini-databases or specially structured text files), includ-ing an address book, call history, saved and favorite phone numbers, voicemails, text messages, notes, voice memos, and recent email.

Often, useful information can be found in browser data stored as mini-databas-es or specially structured text files, in-cluding bookmarks, browsing history,


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recent searches, thumbnails, and cookies. Similarly, a smart device can contain items that have GPS data attached, including photos (which also have a treasure trove of data beyond the location of the photo, in-cluding shutter speed, flash usage, camera model and serial number, digital picture sequence number, date, and time); maps (including map history, previous direc-tions, last position, and information about applications that can use the map data); third-party navigation applications (such as TomTom or Magellan); and a history of WiFi and cellular locations recognized by the device.

So what should I be thinking about?The nature of litigation should drive the decision. In a commercial litigation case, you may not be interested in all of the data that an iPad can yield, and you may be able to limit the search to typical business communications and documents. On the other hand, in a criminal, family/domes-tic investigation, or intellectual property case, you may want to leverage what the iPad or iPhone can tell you that few other resources could.

If you are interested in communica-tions and documents, ask several basic questions:

• Is the device personal or company owned?

• Are any technologies used to manage the business use of the device and back up or isolate business data from the general device storage? If the answer is yes, then collec-

tion from the device may not be necessary.

• Is a pass code or encryption password used on the device or in iTunes back-up?

• Is the device currently locked from too many unsuccessful attempts to unlock it? Data can be collected from locked

devices; however, this adds com-plexity and cost to the collections

effort while reducing some collect-able information.

• What application is used for sending and receiving email? If all email is browser based, such

as Gmail, MSN, AOL, or Verizon, then there may not be any com-plete email content available to collect.

If the iPad or iPhone uses the built-in email application, then collec-tion may need to include either a physical collection or collection from the iCloud service.

• Are documents stored locally, hosted on a company SharePoint-type site or document management system, or are they stored in iCloud/Google Docs?

• Are instant messages, Skype calls, Google chat, or other non-email com-munications potentially relevant?

In a case involving deeper investiga-tions, the iPad/iPhone, Android tablets, and smart phones can inform us of past behav-iors by the user and provide geo-location, time stamp, and network information all in one device.

In all cases, you will need to know whether the device is using any pass codes (the device password) or a backup (encryp-tion) password, and whether the device has been “jailbroken,” which allows users to bypass manufacturer-imposed software limitations. This may affect the types of software or hardware tools available for use, as well as the areas of the device that will be accessible. This information also re-duces the time, effort, and costs required by a vendor doing collections. You may also need to have the primary user’s AppleID and password to access iCloud or certain application data. You should always docu-ment the device model, memory size, and iOS (operating system) version number. Last, you should confirm whether there are any other synchronized devices that could affect the state of the data on the device and turn off any wireless or cellular connec-tions to maintain the integrity of the device.

How are the data collected?Collections can be performed in sev-eral different manners, both logical and physical.

A logical acquisition involves making a copy of the files using software that pre-serves the integrity of the files but not the attributes of the physical device. The most common tool for making a logical image of an iPad or iPhone is iTunes backup.

A physical collection is actually a foren-sic copy of the physical state of the storage memory of the device and requires more advanced software than just iTunes, not only to make the image but also to review it and extract individual data from it. A physical collection is required to capture emails, clipboard data, and certain appli-cation information such as snapshots.

Collecting data from mobile devices is much more complex than from stand-alone or networked desktop computers. Nevertheless, once you understand the basic concepts, making sure you have captured all the information you need no longer seems as daunting. q

with tablets and smart phones we cannot easily crack the cover, as we would on a PC.


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r o b e r T e . S h a p i r o

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & nagelbert LLP,

Chicago.

Advance Sheet

Anonymity certainly isn’t what it used to be. There’s almost nowhere left to hide. Anyone who thinks it is still possible to get lost in a crowd need only look at the Boston Marathon bombings. The two brothers who carried out that atrocity must never have thought their identi-ties would become known after having left their deadly backpacks to work their horror. Indeed, a traditional eyewitness stared into the eyes of one bomber and later scratched out a message to that ef-fect while heavily sedated after an oper-ation in which he lost both legs. But he could say only that he had seen someone, not whom he had seen. Still, within days the pictures of the two brothers were broadcast all over the world, and soon the networks were bubbling with infor-mation about the two fugitives who had paralyzed Boston and transfixed the rest of the country.

The reason for this law-enforce-ment success was, of course, modern

technology and especially the Internet. Extreme freedom-of-privacy advocates excepted, most people were more re-lieved than upset that the crime scene had been under almost constant, if not exactly targeted, surveillance. Once the investigation began, the Federal Bureau of Investigation and other investigators had access to dozens, if not hundreds, of videos and photographs, shot by every-thing from the most sophisticated closed-circuit TV camera to the ubiquitous cell phones of the various bystanders. And just as technology captured the informa-tion, it was also responsible for its dis-semination, as pictures of the brothers on the Internet allowed for the speediest possible identification. No door-to-door Jack Webb–style inquiries or post office most wanted pictures in this modern age.

Technology has intruded in this way into all aspects of our lives, seem-ingly making many notions of privacy out of date. Even the most private and

a non ymiTy a n yone?

essentially harmless conduct is not be-yond public view these days. During the most recent presidential campaign, re-searchers for at least one candidate com-piled detailed information about target voters based on their Internet usage. By tracking what websites a person visited and what may have been purchased, the campaign prepared an individualized message designed to appeal to that vot-er’s particular tastes, whether the newest recipes, pornographic movies, or classi-cal music. With a simple mouse click, all expectation of privacy was doomed.

Snooping exists everywhere. In the workplace, intrusive technology is in the ascendant. Video recordings of worka-day activities have become routine. In some states, conversations cannot be taped without consent, but what is there to protect employees who agree at hir-ing to their conversations being record-ed? Likewise, it is established law that employers own the email facilities their employees use and their access to the Internet. A Harvard dean took flak for having snooped on her instructors, but few contended that she broke the law. Employers can barge in on the most in-timate tryst or monitor their employees’ web browsing. Today privacy, let alone anonymity, is rare indeed.

In fact, it is difficult to think now of any place where anonymity is possible at all, short of wandering alone on a de-serted island beach, assuming you are not being surveilled by a passing mini-drone. Or perhaps sitting by oneself at home as long as no technology of any kind is in use. Is this a cause for panic? Should we now develop new rules to specially pro-tect our privacy? Are the old rules still good enough?

assessing the situation and rules

To begin assessing this question, note that there are two different scenarios here. One concerns the use of technology


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to monitor ordinary behavior. The other concerns the rights one has, or the conse-quences one faces, in using technology in the first place. In the first instance, it is difficult to see where new laws and legal decision making are really needed. There is certainly a greater ability in the mod-ern world to snoop. In Israel, for example, sophisticated drones provide surveillance throughout the country 24/7. But in a country like ours, where even traffic stop cameras cause a fuss, it is difficult to make the case that new rules are warranted.

If anything, the greater problem lies not in too much technology but in people trusting it too much. Take the extreme case in Canada recently where it was reported that the mayor of Toronto, the ever-colorful and controversial Rob Ford, had been caught on video, apparently tak-en by cell phone, smoking crack cocaine. The reporters who first filed a story on this case did not have the video. Rather, they reported on what a source had shown them in the latter’s effort to sell the video to the highest bidder. The authenticity of the video had not been and could not be verified. But the reporters ran the story nonetheless.

Now, had an unnamed source whis-pered to the reporters that Ford had en-gaged in recreational drug use, this might have been a reporter’s lead, but it would not have been a story. It seems unlikely that what someone of questionable ac-tivity and motives had merely said had happened would have been newsworthy without quite a bit more investigation. But the video seems to have changed

matters in the reporters’ minds. Having seen with their own eyes a video show-ing Lord-knows-what, the reporters felt comfortable writing about it, with dire consequences for Mr. Ford and, to some extent, the city of Toronto itself.

This is not technology’s fault. The re-porters’ greater confidence on the basis of the video that their facts were right was misguided, given how easily advanced technology can be used to doctor ad-vanced technology. They acted irrespon-sibly in publishing the story before the au-thenticity of the video could be tested, no less than if they had reported a tip before confirming the authenticity of the source. In short, it was mistaken social attitudes, not technology, that were at issue. And if this had occurred in the United States, the usual rules of libel would still have served quite well. If the video turned out to be a fake, the reporters’ reliance on it, at two steps removed, would simply have figured prominently in the determination whether there was the malice involved that would be necessary for a libel finding.

The case in which technology itself is the issue may at first seem to pres-ent thornier issues, but again, looks may be deceiving. Take the case of Thomas M. Cooley Law School v. John Doe 1, No. 307426 (Mich. Ct. App. Apr. 4, 2013). Cooley concerned that most prominent technological contribution to our con-temporaneous political culture, the blog. Blogs are in many ways a boon for democ-racy. The Internet has given ordinary peo-ple an opportunity to make their opinions known. Where those opinions resonate with others, bloggers can develop quite a public following and become influen-tial. One might reasonably ask whether this has led to greater insight and clarity. Bloggers inevitably attract like-minded people. And some popular blogs have ventured into extreme rhetoric and even hate speech. But any such concerns are dwarfed by the benefit of allowing ordi-nary people to express their views. Blogs, it could be said, are the 21st-century

equivalent of the 18th-century pamphlet, without even the need to find the spare change for a printer (though it helps to have a high-speed Internet connection).

Blogging

It is a striking feature of blogging that it seems to buck the privacy-be-damned trend seemingly favored by modern tech-nology. Bloggers can, if they want, labor anonymously, even if they mostly prefer the pleasures of celebrity to those of ano-nymity. Is this a good thing? On the one hand, it is easy to see how this might en-courage a blogger to act irresponsibly. It is a lot easier to say outrageous things when no one knows who is saying them. On the other, we can see some obvious benefits. Unpopular speech can lead to dire con-sequences for oneself. There are certain opinions people would rather not hear, even if true. And, of course, anonymity is critical if it is a higher authority, particu-larly a government, that does not want to hear those opinions. One need not live in China to worry about becoming the victim of the retribution of officialdom.

For reasons such as these, the Supreme Court ruled in the 1990s that the rights associated with free speech protected the right of anonymity as well. It did so in a case involving political leaflets. One of its bases was the fact that the writers of the Revolutionary Era often wrote us-ing pseudonyms. From this it drew the conclusion that the First Amendment was intended to protect that approach as a “right.” Strictly speaking, this is a non sequitur. That 18th-century writers used this approach in cases in which no one had any reason or desire to challenge it does not mean that there was a belief, let alone a general rule, that no one could do so. But the principle is now firmly established.

Cooley tested the limits of the principle in the new world of technology and the political blog. The immediate context was the recent spate of controversies in which

it was mistaken social attitudes, not technology, that were at issue.


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former law school students have sued their law schools for supposedly having misrepresented how many of those who matriculated have obtained a law job. The blogger in Cooley made some particular-ly nasty accusations against the school, which the latter contended had the im-portant additional vice of being factually untrue. It sued the blogger for defamation.

But who was he? The Thomas M. Cooley Law School wanted to know. Anonymity is just fine, it said, when the law is being respected, but it is quite an-other matter when the identity of its tor-menter is needed to prosecute a defama-tion claim. The school sought the records of Blogger Doe’s service provider to find out who had sourced the calumny. The blogger moved to quash.

Now one wonders if Cooley really needed to go to all that trouble. Consider one recent dramatic case involving a pop-ular, nonpolitical blogger. Writing in her blog, she made it apparent she intended presently to kill herself. An alarmed and enterprising reader went through all her blogs and figured out from unintended clues where the blogger must have lived. She slowly narrowed down the possible sources in that town until she determined who the blogger must be. Rescue squads arrived before the blogger could inflict the deadly wound.

But whether Cooley couldn’t figure it out or didn’t want to take the time, it argued to the Michigan court that it shouldn’t have to. The blogger, it contend-ed, had forfeited his right to anonymity by defaming his alma mater. The blogger, of course, countered he had done no such

thing for, among other things, truth was a complete defense. A classic catch-22. The rights of the parties seemed to depend on the final outcome of the contest but need-ed to be determined before any outcome could be reached.

new rules for new Technology

What’s a court to do? The trial court did what so many courts seem to do today. Faced with a problem seemingly created by new technology, it reached for new rules. It immediately began hunting in other states for new tests that purported to strike a more proper balance between the interests of the anonymous blogger and his law school. Cases in New Jersey and Delaware seemed to provide what was necessary: a new four-part test to de-termine which side had the prevailing in-terest under the circumstances. Applying that test, the court ordered that the blog-ger’s identity be revealed.

Was a new test really necessary? How frequently the courts seem to think so. They tend to be as awed by the exis-tence of technology as the reporters in Toronto. One thinks particularly of the modern courts’ passion for e-discovery rules. Technology tended to make e-dis-covery look like a qualitatively different problem from document production dis-putes of old. But the only real difference between current production problems and their earlier counterparts is one of volume. Electronically stored data are no harder to find and, if anything, are less likely to have been destroyed than hard copies. E-discovery could have been a matter relatively simply handled by al-locating costs, which in fact is where the courts began. A simple rule works. The more burdensome you make the produc-tion, the more likely you are to have to bear the cost.

But soon the aura of something new caused the matter to spiral out of control. Courts began falling all over themselves

it is a lot easier to say outrageous things when no one knows who is saying them.

creating new rules, which hardly seemed necessary and have mostly proved perni-cious. However much sense a document retention “hold” might make as a general matter, there was nothing peculiar to e-discovery that made it more worthy of in-troduction. Meanwhile the ipse dixit pro-cedures created by one Southern District of New York judge have done nothing but wreak havoc, diverting attention from the merits of cases to phony issues of spolia-tion, which test nothing but the ingenuity of the lawyers in trying to gain a tactical advantage.

The Michigan trial court took the same bait, devising new rules for a situ-ation that, while involving technology, hardly seemed to warrant special atten-tion at all. Enter the Michigan Court of Appeals, riding to the rescue. It noted that the existing rules regarding discovery in Michigan operated just fine, thank you very much, to balance the interests of the parties. Over the dissent of one judge, the majority reversed the trial court’s ruling and its new-ish test, and ordered the trial court to try again under the traditional standards.

In doing so, the court presented a valu-able lesson. Technology is really not the game changer it seems to be. The old rules work rather well, and before we go devising new rules of questionable ef-fect, we really ought to give existing law a go. And try not to be distracted by that camera-drone hovering outside our office windows. q


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o l e g r i V k i n

The author is a shareholder with Carlton Fields, new York City.

ConTr asTing u.s. LiTigaTion a nD inTer naTiona L a r BiTr aTion

American litigators know that there is of-ten a tortuous road between the filing of the complaint and trial. The parties’ posi-tions, and how each side views the facts, tend to evolve through the initial plead-ings, amended pleadings, motions to dis-miss, documentary discovery, depositions, summary judgment motions, pretrial sub-missions, motions in limine, pretrial state-ments, trial briefs, and the course of trial itself. It is often not until after discovery is completed and summary judgment mo-tions are decided that lawyers and their clients decide what facts they will actually try to prove at trial. And even then, they strive to preserve flexibility to respond to what occurs immediately prior to and during trial.

This luxury of not having to commit to a position until well into the process is not available to lawyers in international arbitrations. To the contrary, in most in-ternational arbitrations, parties and their counsel are required to commit firmly

and early on to the facts they expect to prove to the arbitrator, and their cases of-ten stand or fall based on these decisions. Understanding the essential differences between domestic litigation and interna-tional arbitration is critical for both law-yers and their clients.

Pleadings

First, some general background for those not steeped in international arbitration. Although the procedure differs somewhat among the various arbitration tribunals, in the overwhelming majority of cases the arbitral process begins with the filing of a “Notice of Arbitration” or “Request for Arbitration.” The purpose of these filings is to inform the respondent that arbitra-tion proceedings have been started and that a particular claim has been alleged, to “apprise the respondent of the gener-al context of the claim asserted against

him,” and “to enable him to decide on his future course of action.” Gary B. Born, International Commercial Arbitration 1795 (2009). The notice or request is thus simi-lar to a complaint in litigation, and, like the complaint, it is prepared and signed by a lawyer. Following the notice, the re-spondent has the opportunity, within a prescribed time frame, to file a response and to assert any counterclaims. These are similar in scope and substance to the request for arbitration. The claimant may then reply to the counterclaims.

Pleadings in international arbitration, however, are expected to be much more precise and fact-focused than their more familiar counterparts in domestic litiga-tion. For example, when handling an inter-national arbitration, you will not be per-mitted to employ the cryptic, boilerplate language that you may resort to in a fed-eral or state court civil complaint. There your goal, after all, is far more modest; it is to allege enough facts to survive a mo-tion to dismiss, while taking care not to commit to a specific position before you learn the lay of the land. You may even indulge in well-informed conjecture, “on information and belief,” that you hope to substantiate later through discovery.

In international arbitration, by con-trast, pleading facts based on information and belief falls short of the mark when it comes to acceptable practice. Also, initial pleadings in international arbitration are amended very infrequently—so you need to get it right the first time around. They do not tend to evolve with the evidence, as is the case in litigation, where pleadings are almost always amended at least once, and sometimes three or four times, during the litigation process to fit the evidence as it develops.

After the parties have submitted their pleadings in an international arbitration, the next step is the constitution of the arbitral tribunal. This stage includes the selection of arbitrators and the assertion of any challenges and jurisdictional ob-jections. The selection process may be as

Global Litigator


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brief as one week or, in cases with sig-nificant disputes or challenges, may take up to two months. Once constituted, the tribunal will set a detailed procedural schedule. In most cases, absent the par-ties’ agreement (which is rarely reached), the arbitral tribunal has virtually unfet-tered discretion to determine the arbitral procedure.

For example, under Article 15(1) of the United Nations Commission on International Trade Law Rules, “the arbi-tral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the pro-ceeding each party is given a full oppor-tunity to present its case.” The major ar-bitral bodies—the International Chamber of Commerce, the International Centre for Dispute Resolution of the American Arbitration Association, and the London Court of International Arbitration—all have similar provisions in their rules.

Statutory regulations of arbitration procedures likewise do not significantly limit the arbitral tribunal’s autonomy to conduct the arbitration as it deems appro-priate. The requirements of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., for example, as interpreted by courts, will generally be satisfied upon a showing of procedural fairness, equal treatment, and adequate opportunity to be heard. As a practical matter, short of trial by ordeal, almost any procedure will do.

The procedural schedule set by the ar-bitral tribunal will typically provide for some discovery. Discovery in internation-al arbitration, however, is nothing like the discovery that you normally experience in domestic litigation.

Discovery

Depositions, of course, are one of the two pillars of domestic discovery (the other being document production). In theory, the purpose of depositions is to uncover

the truth, but the reality is that they tend to be cat-and-mouse games, conducted in an adversarial atmosphere, often con-tentiously so, with the two sides having conflicting goals.

As the examining lawyer on either side, you want to extract from the wit-nesses information that advances your case. Within the confines of the rules, the witness and counsel defending the depo-sition want to withhold as much harmful information and to provide as much self-serving testimony as possible. The mea-sure of your success as examining counsel is whether you are able to lock the wit-ness into a position that helps you at trial or, even better, in your effort to obtain summary judgment. From the deponent’s perspective, by contrast, a successful de-position is one in which the examining lawyer “got nothing”—nothing that would harm defending counsel’s case and limit the witness’s ability to testify effectively at trial when it really counts.

If you typically defend cases, you have seen plaintiffs change their theory of the case as recently as the last day of the dis-covery cutoff, when plaintiffs’ counsel files a supplemental expert disclosure, spinning out a new theory of causation. Conversely, if you are a plaintiffs’ law-yer, you have seen this from the other side. The defense adapts to what you have painstakingly developed in deposition by

“correcting” or “supplementing” sworn testimony in an errata sheet or through the testimony of later-testifying wit-nesses. Or defense counsel might seek to launch a new theory through experts disclosed late in the case.

None of this is possible in international arbitration, for one reason: Depositions are not permitted, period. The first time that a lawyer examines the other side’s witnesses, including experts, is at the hearing—at trial. For a lawyer this means several things. First, you do not have the benefit of being able to develop and mold your case based on the evidence adduced in depositions. None of the strategic

Depositions are not permitted in international arbitration, period.

maneuvering engaged in by lawyers with the aim of placing their clients in a bet-ter position for trial is available in inter-national arbitration. Second, you have to cross-examine hostile witnesses at the hearing “cold.” This is something particu-larly unsettling to litigators used to hav-ing a pulse on witnesses in the trenches of discovery. Third, you don’t know until the hearing how your own witnesses stand up to the pressure of truly adverse cross-examination. If your client becomes ner-vous and shifty-eyed under scrutiny, you may find this out for the first time at the hearing, together with the tribunal.

Documentary discovery, while avail-able in international arbitration, is much more limited in scope than in U.S. civil litigation, requiring narrow and specific requests and a far more exacting showing of relevance and materiality than is the norm in litigation. The International Bar Association (IBA) Rules on the Taking of Evidence, for example, limit document requests to a “narrow and specific . . . cat-egory of documents that are reasonably believed to exist.” It is not uncommon for tribunals in international arbitrations to allow for discovery of no more than a handful of documents. The same mat-ters, if litigated, would result in massive productions of thousands of documents

“reasonably calculated lead to the discov-ery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Requests that begin with the formulaic “all documents concerning” or “all correspondence relating to” will more often than not be rejected by the tribunal. International arbitrators never


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tire of pointing out to American lawyers that they are not in a U.S. court and need to curb their appetite for discovery. Also, other litigation discovery devices, such as interrogatories, depositions on written questions, requests for admissions, physi-cal and mental examinations, are, as a rule, unavailable in international arbitration.

evidence Preparation and submission

The most critical difference between liti-gation and international arbitration—and one that is intrinsically tied to the differ-ences in the discovery processes—is the timing of both the preparation and the submission of evidence.

As a domestic litigator, you normally get down to putting your case together for trial after discovery is completed and the court has decided motions for summary judgment. It is at that point that you be-gin to contemplate your most important decisions: who your witnesses will be and what they will say.

Once you decide who your trial fact witnesses will be, you will outline their direct testimony and prepare each wit-ness thoroughly. Your goal is to avoid surprises that will thwart your theory of the case, while ideally throwing up road-blocks that will frustrate your opponent’s drive to the goalposts. As you prepare for trial, you will have the benefit of all the documents produced in discovery by the other side, as well as the prior deposition testimony of your opponent’s witnesses and any affidavits previously submitted by your opponent. If you have done your witness prep job well, you will have great assurance that your witnesses’ direct tes-timony at trial will contain no surprises and will fully support your client’s case. This sounds unremarkable, of course, to trial lawyers who work exclusively in state or federal court.

The process in international arbitra-tion is radically different. The schedule

set by the tribunal at the very beginning of the arbitration typically provides for sequential written submissions by the parties. These are usually spaced several weeks apart: claimant’s memorial, respon-dent’s counter-memorial, claimant’s reply, and respondent’s rejoinder. Each submis-sion is required to contain a brief setting forth the legal and factual arguments in support of the party’s case; witness state-ments, both factual and expert; and doc-umentary evidence on which the party relies. Each party thus gets two written submissions, each containing a legal brief, witness statements, and documents. Each subsequent submission is limited in scope to the issues raised in the opponent’s prior submission. The claimant’s initial submis-sion is normally due about two months af-ter the constitution of the tribunal.

Witness statements function as the di-rect testimony of witnesses at the hearing. Thus, under Article 4(5) of the IBA’s rules, a witness statement is required to provide

“a full and detailed description of the facts and the source of the witness’s informa-tion as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute.” Witness statements are typically narratives that strive to tell the complete story from the witness’s perspective and may run as long as 50 pages, with expert witness statements running even longer. At the time of the hearing, witness state-ments—often prepared several months earlier—will be offered into evidence as direct testimony, and the witnesses will be subjected to cross-examination on those statements by the opposing counsel. Oral direct testimony is virtually nonexistent in international arbitration (although some tribunals allow witnesses to supple-ment their written statements at the hear-ing, for a few minutes at the most).

As a rule, an arbitral tribunal will not admit into evidence at the hearing any tes-timony of witnesses under the control of a party that was not contained in a wit-ness statement and submitted as part of one of the sequential memorials. Similarly,

the tribunal likely will not admit into evi-dence documents that were not produced with the parties’ written submissions (or at least identified in them). These are two critical rules that draw the sharpest con-trast between litigation and international arbitration. Although these rules normally carry a “reasonable cause” exception, tri-bunals tend to adhere to them strictly.

The implications of these rules for counsel in international arbitration are obvious. Unlike in domestic litigation, where you can adopt a wait-and-see at-titude and track the development of the evidence before having witnesses com-mit to specific testimony, in international arbitration you must land on your facts and the manner in which you will present them early in the process and without the benefit of a record to help you (especially if you represent the claimant, whose written submission comes first). You must make many key strategic decisions—including who will testify; what each witness will and will not say; how they will say it; how you will navigate the anticipated hazards and, indeed, what those hazards might be; what documents the witness will and will not be shown and asked to explain; and many others—virtually at the inception of the arbitration. In domestic litigation, you have the luxury of waiting to make these decisions until the weeks and days before the trial on the basis of a substantial re-cord. To a certain extent, this means you must lead with your chin in an interna-tional arbitration. If you do this carefully and well, you can hope to avoid the kind of knockout punch early in the fight that comes as a startling surprise to many U.S. litigators in international arbitration. q


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The author, a senior editor of Litigation, is with speiser, Krause, nolan & Granito, new York City, and

the author of A Streetwise Guide to Litigation (American Bar Association 2013).

Sidebar

I hate change. I’ve always lived within five miles of where I was born. I’ve prac-ticed with only one firm since law school graduation in 1977. Many close friends are people I met more than 50 years ago in Holy Name grammar school. And I always order penne with lobster sauce whenever I dine at Gargiulo’s in Coney Island.

I’m not a Neanderthal or anything—I love my iPhone and texting and the in-stant video of my grandson Luke taking his first steps. What would we do with-out GPS, E-ZPass, Google, or the new TaylorMade golf clubs that occasionally help me find the fairway? Even typing this article is ecstasy compared with us-ing manual typewriters and medieval printing presses, which were dirty and slow when I worked at the New York Times. From driving a car to watching TV, technology has made life so much easier, better, and more efficient.

I even understand those who move to the sunshine states. Who wants to

pay $7.50 to drive through a tunnel to Manhattan while bundled against the annoying cold? Who wants to dance through the potholed, poop-stained streets, or make the Federal Bureau of Investigation’s most wanted list by sell-ing a 16-ounce Pepsi (even though every saloon serves 16-ounce beers)?

The gated communities of Florida with their soothing lawns, charming palm trees, and civility are, I’m sure, wonder-ful. Low taxes, too. But no thanks. I’m kinda stuck in my ways, and even though I love to complain about New York’s cra-ziness, I take comfort in familiar streets and sights, in having the checkout wom-an at the supermarket order me to grab another container of laundry detergent because “your wife always buys two.” I delight in seeing Muslim girls in their hi-jabs adorned with green when they march in the Bay Ridge St. Patrick’s Day parade.

Even though I’d prefer to be 14 again playing three-on-three in the schoolyard,

Ch a nge

k e n n e T h p. n o l a n

I realize that change is life. I read books on a Nook, keep up with my many cous-ins on Facebook, and email or text rather than converse. Even my Brooklyn, once dangerous and derided, has become oh-so-trendy, although I’ve never been ac-cused of being a hipster. The most drastic and rapid changes are not in gentrified neighborhoods, or in how we communi-cate, but in law. It’s not only the dearth of jobs but also an attitude that questions our very purpose.

The Transformation of Law

Perhaps it was inevitable, the radical transformation of our profession. The re-cession, which seems interminable, has scrutinized not only our practice and how we resolve disputes but also whether our services are essential, productive. Is law a fulfilling career? Why are legal fees so high? Why litigate for years only to set-tle on the courthouse steps? What is the value of a law school education, and is it worth a hundred grand of debt? Why do law firms work associates like mules? Is law compatible with raising a family? Has the proliferation of lawyers throughout society and, in particular, government been beneficial? All of a sudden the stock answers seem a bit shallow.

When times were flush, these ques-tions were dismissed or, more likely, not raised. In trying times, families, business-es—unlike government—examine every expenditure and cut waste. I wore hand-me-downs from my brother and cousin until I was in high school. It’s not help-ful, of course, for Dewey & LeBoeuf to promise enormous salaries, borrow like a crack addict, and then go belly up. Or for DLA Piper emails to read, “churn that bill baby,” “the bill shall have no limits”—highlighting a perception of greed and waste. Or for specious law school statis-tics to promise a rainbow of jobs when few exist. One columnist compared law school to a Ponzi scheme.


63

Just recently, we hired a firm for its expertise in an unfamiliar area of law. A motion or two had to be made, a few court appearances and some telephone conferences. We received a discounted bill, but if we were billed the normal rate, the cost was prohibitive. At $250 an hour, it would have been equal to 700 hours of work. Even at $500 an hour, no way you could spend 350 hours on this relatively straightforward issue. Some big-shot liti-gators bill at $1,150 an hour. I’m a capi-talist and believe everyone should guzzle Dom Perignon, but c’mon, we’re killing the goose that laid the golden eggs.

We need to change and quickly. Like me, you can cling to the past and deny the inevitable, but the old ways of unques-tioned bills, jobs galore, and unimpeded growth have vanished like the stickball games of my youth.

needed Changes

small is good. Clients are scrutinizing and negotiating legal bills. Some refuse to pay for work done by first-year associates. They examine staffing and object to court appearances by a partner and her entou-rage. Lawyers remain indispensable, but the proclivity to pay limitless amounts has subsided. And we must adapt. Law firms will become leaner, and even those that are successful will not grow as in the past.

Profits can be maintained as costs are cut, but let’s be honest, income will shrink. We’ve seen it in newspapers, music, bank-ing—what was once lucrative is no longer. Wasn’t Newsweek sold for one dollar? Law is no exception.

stop working associates to death. Most young attorneys at large firms hate their jobs. Stressful work, 16 hours a day, on anniversaries, holidays, grandma’s 75th birthday. Don’t get me wrong. I don’t feel sorry for them. They knew the deal and are earning a ton of money. Making partner at Skadden, Davis Polk, or Cravath ain’t so bad. Perhaps less pay for less work

is a solution. All I know is bright, person-able, diligent lawyers are miserable—truly and profoundly.

Be honest. From law schools to bar as-sociations, we must admit the obvious—law is rough, demanding (and rewarding) work. When I started, the promise, mostly true, was that you could live comfortably writing wills, doing divorces, or handling fender benders. Today I don’t know. It’s like every other job—you may not make it; you may fail. There are too many of us. Teaching, walking a beat, repairing cars may be not only more satisfying but more lucrative.

Law school is too expensive. Where I grew up, everyone was cheap. A neighbor, now retired, said he turned down a half scholarship to Yale Law to accept a full ride at Brooklyn Law. Why pay when you could go for free? It certainly didn’t pre-vent him from having an interesting and successful career. The only advantage of an Ivy League education is the contacts you make. At Brooklyn Law, I sat next to intelligent and hilarious classmates, but not John Roberts or Hillary Clinton.

A law school education is invaluable but not worth incurring debt that will take decades to repay. If it doesn’t become more affordable and more practical—like learning how to draft a contract, take a deposition—law schools will shrink and some will close.

Litigate economically. Try to resolve issues before going to war. At times, full-blown litigation is inescapable. Yet, the expense of litigating for years followed by a month-long trial is prohibitive. Hence

the growth of mediation. Not as exhilarat-ing as a jury trial but quicker and cheaper. Judges demand a speedy resolution, order-ing mediation shortly after issue is joined, and then again and again. Trials will be-come scarcer, especially on the civil side. Oh well, most litigators don’t try cases anyway.

Email and the Internet have created tons of new electronically stored informa-tion. But technology will eventually allow you to locate that smoking gun document in a nanosecond, making obsolete hordes of lawyers spending weeks thumbing through files. Less time spent in discov-ery means, for most, less income, which means fewer jobs.

In the future, our profession will con-tract and be less profitable. Thankfully, the need for our ability to analyze, to write, to persuade, to question a witness, to argue an appeal—the essence of a trial lawyer—will always be there. Individuals and industries will continue to seek our counsel to resolve a dispute, protect their rights, resolve complex problems.

We must accept this new normal and sever those nostalgic bonds to the past, which is so difficult for those like me. I never want to hear about our world what was said to a print journalist on The Simpsons: “Ha, ha, your industry’s dying.” We are essential to business, to govern-ment, and to each other. Embrace change; conquer it. q

i’m a capitalist, but c’mon, we’re killing the goose that laid the golden eggs.


64

M i c h a e l d o w n e y

The author is with Armstrong Teasdale LLP, st. Louis. He also teaches legal ethics at Washington university

of Law.

Scruples

“Nemesis stole our client!” Paradox dropped into the chair opposite Ethox.

“This is too much! We have to get Nemesis. Let’s sue! Let’s file an ethics complaint!”

Ethox weighed in quietly, “What did Nemesis do?”

“Nemesis stole our client,” Paradox barked the response.

Ethox again tried a quiet, deliber-ate voice. “I heard you say that before. But I still don’t know the details of what happened.”

Now Paradox understood. “Remember Lance?” Paradox asked.

“Wasn’t that the client you thought was lying?” Ethox responded.

“Well, yes . . . ,” Paradox was slowing. “It turns out Lance was not lying. In fact, we learned that Lance had a pretty strong case.”

“That’s great,” said Ethox, sounding sur-prised. “Shouldn’t you be happier?”

“I would be,” Paradox muttered, “except that then we lost Lance as a client. The moment I challenged Lance’s truthfulness,

Nemesis swooped. Nemesis apparently convinced Lance to hire a new lawyer, one that fully believed in Lance’s case. Lance listened, hired Nemesis, and fired us.

“The matter is still going,” Paradox add-ed. “That’s why I want to get the ethics complaint filed right away. You’ll help me with the ethics complaint, right?”

“I can help you,” Ethox answered, “but I am not sure you have a valid ethics complaint.”

“What?” Paradox fired back. “Nemesis spoke to—and stole—our client!”

“There was probably nothing wrong with Nemesis speaking to our client,” Ethox explained. “Rule 4.2 prevents a lawyer from communicating with another lawyer’s client about the subject matter of the representation. But Rule 4.2’s so-called anti-contact rule only applies when the lawyer having the communication—here, Nemesis—is also representing a cli-ent. People often skip over the first words of Rule 4.2, ‘In representing a client . . . .’”

Paradox caught Ethox’s lesson. “Since

inTer Fer ing wiTh CLienT r eL aTionshiPs

Nemesis was not representing a client in Lance’s matter, Rule 4.2 did not prevent Nemesis from speaking to Lance about the matter, right?”

“Exactly,” Ethox said, sounding like a proud teacher. “Rule 4.2 is designed to pre-vent a lawyer from benefiting his or her cli-ent by taking advantage of another lawyer’s client. Since Nemesis was not representing a client, the anti-contact rule did not apply.”

“But surely some rule must prevent cli-ent-stealing!” Paradox retorted.

“Nemesis had to obey a lot of other rules in dealing with Lance,” Ethox answered.

“For example, the limits on in-person and targeted solicitations in Rule 7.3. Also, the duties to avoid fraud and misrepresentation in Rules 7.1 and 8.4.”

Paradox was not out of ideas yet, in-quiring, “So, what about a lawsuit—say for tortious interference with business relationship?”

“That may be very difficult as well,” Ethox answered. Ethox picked up a print-ed opinion from the desk. “The New Jersey Supreme Court just looked at this issue in its March 2013 decision in Nostrame v. Santiago. There, the court found such an interference claim very hard to state.”

Passing Paradox the opinion, Ethox con-tinued, “The opinion notes there could be circumstances where a lawyer could be li-able for ‘stealing’ another lawyer’s client. In fact, the court suggests finding a violation of another rule—like Rules 7.1, 7.3, and 8.4 that I mentioned earlier—may give rise to a tort claim. But even then the claims are pretty hard to make.”

Looking forlorn, Paradox f lipped through the Nostrame opinion. “I guess I should have challenged Lance a little more softly,” Paradox mused.

“Well, everyone loses clients,” Ethox said, trying to be reassuring. “At least you didn’t write Nemesis a threatening letter with eth-ics charges or claims you ultimately could not back up. After all, that might have given rise to an ethics problem—for you.”

In the next issue: the ethics of making threats. q

3 2 1 n o r T h c L A r k S T r e e T c h ic Ag o , i L 6 0 6 5 4

T h e Jou r n A L o f T h e S e c T io n o f L i T ig AT io nA m e r ic A n B A r A S S o c i AT ion

CiviL Cases in u.s. DisTr iCT CourTs By JuDiCia L CirCuiT(See “Rethinking Civil Litigation in Federal District Court,” by Hon. Patrick J. Walsh, page 6.)

OR

WA

ID

MT

NV

CA

AK

TX

WY

UT

NM

KS

OK

CO

LA

MS

AR

MO

NEIA

SD

NDMN

WI

INIL

MI

IN

TN

KY

ME

6

8

5

7

4

2

910

11

3

1NH

ALGA

FL

SC

NC

VAWV

PA

NY

VT

CT

MA

FED

NJ

DEMDDC

HI

AZ

PR

VI

GU MP

TOTAL NUMBER OF CASES47,4379

42,8253

37,98811

27,094522,351222,1356

18,5067

17,5934

16,4528

10,82510

5,7211

% REACHING TRIAL

1.9%

.9%

.9%

1.4%

1.6%

1.0%

1.5%

1.0%

1.1%

1.5%

1.9%Statist ics from Judicial Business of the United States Courts,

www.uscourts.gov.


Data, Documents, and Decisions

Documents

Transcript of Data, Documents, and Decisions