The Lawyer Thread Where We Stop Ruining Other Threads (1 Viewer)

[T Bell]

. My only solace at this point is that I am picturing this guy to be -fish- and that he has concluded I'm a giant moron and will be pushing his clients to settle just so he doesn't have to deal with me anymore.

I've been a plaintiff's litigator my whole career. I would punish a floundering attorney with motion practice and discovery until his eyes bled.

Is this your first civil case as a plaintiff? Not meaning to be disparaging (this time) but you're doing some weird stuff.

How have you valued this case?

This. Want to freak out a defense attorney?

File a motion for partial summary judgment for each of those b.s. affirmative defenses they filed with their answer.

Can't do that in CA anymore (as of about 20 years ago). You can only file MSA's against causes of action, not against specific allegations or affirmative defenses.

 

[T Bell]

First, in your interrogatories ask them to identify every piece of evidence for each.

a/k/a "contention interrogatories"

"If you contend that ____________________________, please identify all facts/documents/witnesses* that support this contention."

*divided into three different, consecutive contention rogs. Great billing. And as a defense guy, I simply do this going allegation by allegation in the complaint, which forms a nice foundation for a later summary judgment motion.

 

[Zow]

This thread must have the highest tl;dr ratio of all time.

It's a bunch of lawyers posting in a thread. What did you expect?

 

[bigbottom]

First, in your interrogatories ask them to identify every piece of evidence for each.

a/k/a "contention interrogatories"

"If you contend that ____________________________, please identify all facts/documents/witnesses* that support this contention."

*divided into three different, consecutive contention rogs. Great billing. And as a defense guy, I simply do this going allegation by allegation in the complaint, which forms a nice foundation for a later summary judgment motion.

I rarely do contention interrogatories. The lawyer gets to answer them, and spend all the time he wants to craft a comprehensive answer designed to evade summary judgment dismissal. Instead, I ask those questions when I'm deposing the plaintiff under oath and on camera and his lawyer can't answer for him.Also, in many jurisdictions there are limits on the number of interrogatories.

 

[krista4]

This thread must have the highest tl;dr ratio of all time.

So true for me, and I'm a lawyer.

 

[Henry Ford]

Also, as a general matter, big firm civil defense lawyers are rarely bothered by motion practice as they typically have unlimited resources with respect to available attorneys and they get paid for all the work you create for them.

Big firm civil defense attorneys rarely work on personal injury defense from a bar fight in a small city in Arizona.

 

[Henry Ford]

Someone please answer my question. TIA

It's not really a fully formed question. You said you have a way of getting him out of it. What's that way? Kind of informs how it works. And yes, sometimes people admit that they did it.

 

[Henry Ford]

First, in your interrogatories ask them to identify every piece of evidence for each.

a/k/a "contention interrogatories"

"If you contend that ____________________________, please identify all facts/documents/witnesses* that support this contention."

*divided into three different, consecutive contention rogs. Great billing. And as a defense guy, I simply do this going allegation by allegation in the complaint, which forms a nice foundation for a later summary judgment motion.

I already know he contends it. It's a defense.

 

[T Bell]

Someone please answer my question. TIA

It's not really a fully formed question. You said you have a way of getting him out of it. What's that way? Kind of informs how it works. And yes, sometimes people admit that they did it.

How often does someone flat out admit they're guilty to their attorney? Does a defense attorney ask them this directly, or do they purposely not ask this question?

A defense attorney won't ask because if you know your client's guilty, you're ethically restricted in what you can present as evidence. You can't knowing present false evidence, for example, so if your client wanted to testify in his/her defense and lie, you would not be allowed to agree to do that.

As for how often it happens, I don't do enough criminal work to know.

 

[-fish-]

. My only solace at this point is that I am picturing this guy to be -fish- and that he has concluded I'm a giant moron and will be pushing his clients to settle just so he doesn't have to deal with me anymore.

I've been a plaintiff's litigator my whole career. I would punish a floundering attorney with motion practice and discovery until his eyes bled.

Is this your first civil case as a plaintiff? Not meaning to be disparaging (this time) but you're doing some weird stuff.

How have you valued this case?

This. Want to freak out a defense attorney?

File a motion for partial summary judgment for each of those b.s. affirmative defenses they filed with their answer.

Can't do that in CA anymore (as of about 20 years ago). You can only file MSA's against causes of action, not against specific allegations or affirmative defenses.

can't you still file a demurrer on affirmative defenses?

 

[T Bell]

. My only solace at this point is that I am picturing this guy to be -fish- and that he has concluded I'm a giant moron and will be pushing his clients to settle just so he doesn't have to deal with me anymore.

I've been a plaintiff's litigator my whole career. I would punish a floundering attorney with motion practice and discovery until his eyes bled.

Is this your first civil case as a plaintiff? Not meaning to be disparaging (this time) but you're doing some weird stuff.

How have you valued this case?

This. Want to freak out a defense attorney?

File a motion for partial summary judgment for each of those b.s. affirmative defenses they filed with their answer.

Can't do that in CA anymore (as of about 20 years ago). You can only file MSA's against causes of action, not against specific allegations or affirmative defenses.

can't you still file a demurrer on affirmative defenses?

Yes, and/or a motion to strike, although both of those are rarities on affirmative defenses. Typically that gets weeded out at trial.

 

[Sarnoff]

Got a question that came up watching an old episode of Law & Order. Bookie gets murdered. During voir dire the prosecution asks if the prospective juror ever gambles and if he's ever placed a bet with a bookie. Question is: can prospective jurors can plead the 5th in voir dire? Prosecution is asking if he's ever committed a crime. What are the rules here (in general)?

 

[thecatch]

. My only solace at this point is that I am picturing this guy to be -fish- and that he has concluded I'm a giant moron and will be pushing his clients to settle just so he doesn't have to deal with me anymore.

I've been a plaintiff's litigator my whole career. I would punish a floundering attorney with motion practice and discovery until his eyes bled.

Is this your first civil case as a plaintiff? Not meaning to be disparaging (this time) but you're doing some weird stuff.

How have you valued this case?

This. Want to freak out a defense attorney?File a motion for partial summary judgment for each of those b.s. affirmative defenses they filed with their answer.

Can't do that in CA anymore (as of about 20 years ago). You can only file MSA's against causes of action, not against specific allegations or affirmative defenses.

can't you still file a demurrer on affirmative defenses?

Yes, and/or a motion to strike, although both of those are rarities on affirmative defenses. Typically that gets weeded out at trial.

There's some interesting case law on the application of Iqbal pleading standards to affirmative defenses on the federal level out there.

 

[bigbottom]

Also, as a general matter, big firm civil defense lawyers are rarely bothered by motion practice as they typically have unlimited resources with respect to available attorneys and they get paid for all the work you create for them.

Big firm civil defense attorneys rarely work on personal injury defense from a bar fight in a small city in Arizona.

Good point. Carry on.

 

[Henry Ford]

Got a question that came up watching an old episode of Law & Order. Bookie gets murdered. During voir dire the prosecution asks if the prospective juror ever gambles and if he's ever placed a bet with a bookie. Question is: can prospective jurors can plead the 5th in voir dire? Prosecution is asking if he's ever committed a crime. What are the rules here (in general)?

Gotta defer to the criminal lawyers on this, but I will say that I've seen judges caution prospective jurors in civil trial against saying something incriminating.

"Juror 2, I would like to remind you that this is all on the record. Would you like to reconsider how you phrased that response, because it sounds like you're committing tax fraud."

 

[Otis]

Christ you guys love talking about lawyering.

 

[Otis]

LawNerds™

 

[Yankee23Fan]

I'm just glad that I'm not the only one with crazy clients and dumb courtroom crap stories.

 

[Zow]

Someone please answer my question. TIA

I will when I have a moment. Relax.

 

[Zow]

Got a question that came up watching an old episode of Law & Order. Bookie gets murdered. During voir dire the prosecution asks if the prospective juror ever gambles and if he's

ever placed a bet with a bookie. Question is: can prospective jurors can plead the 5th in voir dire? Prosecution is asking if he's ever committed a crime. What are the rules here (in

general)?

Absolutely. Generally the 5th applies to anyone whenever he is under oath. And if the prosecutor is smart, he rephrases it to be limited to his jurisdiction and offers immunity on the spot.

 

[Zow]

. My only solace at this point is that I am picturing this guy to be -fish- and that he has concluded I'm a giant moron and will be pushing his clients to settle just so he doesn't have to deal with me anymore.

I've been a plaintiff's litigator my whole career. I would punish a floundering attorney with motion practice and discovery until his eyes bled.

Is this your first civil case as a plaintiff? Not meaning to be disparaging (this time) but you're doing some weird stuff.

How have you valued this case?

1. Yes. First time as a Plaintiff's litigator (I've defended a couple civil actions in the lower court). It's a small county population-wise and I tried to refer out to only civil/PI firm in the area but they weren't taking cases. Client has been advised in writing that this is not my general area of practice. I imagine the two other attorneys (who I'm sure have looked me up and realized I'm young and generally practice criminal) are in line with your thinking.

2. Valuing this case has been tough. For starters, my lack of experience doesn't give me that "gut feeling" that I'm sure experienced civil litigators get (and which I have for criminal). The assailant comes from pretty good money and has an insurance company getting his back (for now). My case against him is strong as I have the act on video, a criminal conviction, and my client has doctors documenting his loss of sense of taste and smell. I couldn't find any recent awards for that injury, so I'm trying to equate it to the loss of a limb (valued at about 500k). That may be a stretch. I did do an extensive amount of pre-filing negotiation and got some headway, but no result.

 

[Zow]

So,,,hypothetically, you're a defense attorney and a guy is accused of murder. He lets you know he is guilty,but you have a way of getting him out of this. How does this work? Does a guilty guy ever admit to his own attorney that he's guilty?

1. You do your job and get him out of it. As a defense attorney your obligation is to your client's rights. If his right was violated (i.e. via involuntary confession, illegal search, etc.) you push the issue to its extent - as that is the mechanism in which our law has determined is best to deter police from violating rights. I'll caveat this with a couple of things though. First, I cannot stress how rarely the situation you are describing happens. What I mean is that there is pretty much never some clear, easy path to getting a defendant completely out of a criminal charge. Usually if there is a suppression issue, even if successful there is other inculpatory evidence which could get the defendant convicted. What happens then (again this is still relatively rare) is a prosecutor will recognize his case has some weaknesses and offer a plea which is "too good" to pass up.

2. Sure, but this is also very rare. I'd say the majority of criminal defendants have some version of the facts or some theory as to why they aren't guilty. Common examples are things like "I may have put the DVDs in my purse under my coat and walked out of the store, but I really meant to pay for it and forgot it was there" or "I never hit her. She started it. She must have given the bruise to herself" or mitigating stories like "Well, I have some undiagnosed medical issues which makes alcohol affect me differently…" Naturally, these defenses are pretty weak and the attorney's job is to explain why a plea bargain is probably a good idea. A smaller percentage of time people come in basically looking for the best deal the attorney can get them (high end drug dealers or runners are the best example of this). Their guilt is just then impliedly understood. Frankly, as a defense attorney I appreciate these cases because expectations are usually reasonable and it makes my job easy - get them the best plea possible. Only rarely then are the words "I'm guilty" or "I did it" actually spoken and in the rare instances they are it is in the rare instance where I am advised them they actually have a winnable case and out of some moral obligation they want to resolve with a plea deal.

 

[Henry Ford]

Christ you guys love talking about lawyering.

Shouldn't you be talking about carbs in your latest diet fad thread?

 

[T Bell]

Christ you guys love talking about lawyering.

Shouldn't you be talking about carbs in your latest diet fad thread?

Yeah, of all the people who'd wander in here to criticize, it's Otis?

 

[T Bell]

. My only solace at this point is that I am picturing this guy to be -fish- and that he has concluded I'm a giant moron and will be pushing his clients to settle just so he doesn't have to deal with me anymore.

I've been a plaintiff's litigator my whole career. I would punish a floundering attorney with motion practice and discovery until his eyes bled.

Is this your first civil case as a plaintiff? Not meaning to be disparaging (this time) but you're doing some weird stuff.

How have you valued this case?

1. Yes. First time as a Plaintiff's litigator (I've defended a couple civil actions in the lower court). It's a small county population-wise and I tried to refer out to only civil/PI firm in the area but they weren't taking cases. Client has been advised in writing that this is not my general area of practice. I imagine the two other attorneys (who I'm sure have looked me up and realized I'm young and generally practice criminal) are in line with your thinking.

2. Valuing this case has been tough. For starters, my lack of experience doesn't give me that "gut feeling" that I'm sure experienced civil litigators get (and which I have for criminal). The assailant comes from pretty good money and has an insurance company getting his back (for now). My case against him is strong as I have the act on video, a criminal conviction, and my client has doctors documenting his loss of sense of taste and smell. I couldn't find any recent awards for that injury, so I'm trying to equate it to the loss of a limb (valued at about 500k). That may be a stretch. I did do an extensive amount of pre-filing negotiation and got some headway, but no result.

Unless this guy's a professional gourmet who relies upon his senses of taste/smell to make his living, you're not going to be able to equate this to a loss of limb. Yes, it sucks and you've got a case that's worth some money, but it's not debilitating or disfiguring like a loss of limb is - the jury wouldn't be able to actually see the injury which is important in motivating them to award money.

You also need to be ruthlessly objective here about how your guy comes across in person. Is he likeable? Is he pretty bland? Is he an arrogant #####? Is the defendant likeable? This is more important than the criminal conviction in getting you damages.

The jury's default setting here in a battery case is going to be the proverbial "a paux upon both your houses" - it's just two drunk guys arguing and one guy got the worst of it. If you've got a client who's likeable, your case is worth a lot more.

 

[Henry Ford]

You need to explain that this is brain damage, not just loss of smell and taste. And the very least, you need to call it neurological damage. Only way that's happening is damage to the olfactory nerve. Get your treating neurologist on board with this now.

He was beaten so badly that he has brain damage. That's a very scary thing to defend against.

First questions on the stand of your doctor:

You're a neurologist?

That's a brain doctor, right?

And that's why you're qualified to talk about this damage to the nerves in Mr. X's brain, and to treat him?

 

[T Bell]

You need to explain that this is brain damage, not just loss of smell and taste. And the very least, you need to call it neurological damage. Only way that's happening is damage to the olfactory nerve. Get your treating neurologist on board with this now.

He was beaten so badly that he has brain damage. That's a very scary thing to defend against.

First questions on the stand of your doctor:

You're a neurologist?

That's a brain doctor, right?

And that's why you're qualified to talk about this damage to the nerves in Mr. X's brain, and to treat him?

I like this angle.

 

[Henry Ford]

Yeah, the more I think about it, the more I like it. Hell, get the guy a Tesla-3.0 MRI and have someone do a diffusion tensor fiber-tracking imaging study to show all the places he has neurological deficits. And we know that at the very least, he's got a total loss of his sense of smell and taste since the beating is a great way to sum up all that damage being new, while showing where that neurological deficit shows up as a dead zone.

 

[Yankee23Fan]

Nice. I like that.

Hmmm..... let me see if I have any cases going on that I could use a second opinion on.....

 

[Zow]

Yeah, the more I think about it, the more I like it. Hell, get the guy a Tesla-3.0 MRI and have someone do a diffusion tensor fiber-tracking imaging study to show all the places he has neurological deficits. And we know that at the very least, he's got a total loss of his sense of smell and taste since the beating is a great way to sum up all that damage being new, while showing where that neurological deficit shows up as a dead zone.

Your timing is impeccable and I'll pat myself on the back for already setting this up.

 

[Zow]

You need to explain that this is brain damage, not just loss of smell and taste. And the very least, you need to call it neurological damage. Only way that's happening is damage to the olfactory nerve. Get your treating neurologist on board with this now.

He was beaten so badly that he has brain damage. That's a very scary thing to defend against.

First questions on the stand of your doctor:

You're a neurologist?

That's a brain doctor, right?

And that's why you're qualified to talk about this damage to the nerves in Mr. X's brain, and to treat him?

My client also recently got married. I like the prospect of him explaining how he couldn't smell the flowers or taste his cake on his wedding day...

 

[T Bell]

You need to explain that this is brain damage, not just loss of smell and taste. And the very least, you need to call it neurological damage. Only way that's happening is damage to the olfactory nerve. Get your treating neurologist on board with this now.

He was beaten so badly that he has brain damage. That's a very scary thing to defend against.

First questions on the stand of your doctor:

You're a neurologist?

That's a brain doctor, right?

And that's why you're qualified to talk about this damage to the nerves in Mr. X's brain, and to treat him?

My client also recently got married. I like the prospect of him explaining how he couldn't smell the flowers or taste his cake on his wedding day...

...but at least his new wife doesn't need to dou che now, amiright?

/defense closing

 

[Henry Ford]

Yeah, the more I think about it, the more I like it. Hell, get the guy a Tesla-3.0 MRI and have someone do a diffusion tensor fiber-tracking imaging study to show all the places he has neurological deficits. And we know that at the very least, he's got a total loss of his sense of smell and taste since the beating is a great way to sum up all that damage being new, while showing where that neurological deficit shows up as a dead zone.

Your timing is impeccable and I'll pat myself on the back for already setting this up.

Make sure it's a 3.0, not a 1.5, and that someone who really knows what he's doing is doing the fiber-tracking study. You need someone who's good at explaining it and pointing out focal white matter lesions in the base MRI films.

 

[Henry Ford]

You need to explain that this is brain damage, not just loss of smell and taste. And the very least, you need to call it neurological damage. Only way that's happening is damage to the olfactory nerve. Get your treating neurologist on board with this now.

He was beaten so badly that he has brain damage. That's a very scary thing to defend against.

First questions on the stand of your doctor:

You're a neurologist?

That's a brain doctor, right?

And that's why you're qualified to talk about this damage to the nerves in Mr. X's brain, and to treat him?

My client also recently got married. I like the prospect of him explaining how he couldn't smell the flowers or taste his cake on his wedding day...

Only if there are young women or gay men on the jury. No one else cares.

 

[DocGonzo]

Woz --> To piggyback a little on Henry Ford's take: The other thing that might stretch out your damages is time. If the doctor can tell you that the brain damage is indefinite (and my somewhat limited experience with nerve damage tells me that often they can't tell you whether it'll be short-term, long-term, or forever) then you get to argue not just the severity of the injury, but the potential duration. Not only can he not smell or taste, but he may never be able to do so again. He used to enjoy wine tasting, cooking, craft beer making etc., and now he can't. Etc etc etc.

 

[Henry Ford]

Woz --> To piggyback a little on Henry Ford's take: The other thing that might stretch out your damages is time. If the doctor can tell you that the brain damage is indefinite (and my somewhat limited experience with nerve damage tells me that often they can't tell you whether it'll be short-term, long-term, or forever) then you get to argue not just the severity of the injury, but the potential duration. Not only can he not smell or taste, but he may never be able to do so again. He used to enjoy wine tasting, cooking, craft beer making etc., and now he can't. Etc etc etc.

I really feel like pushing the smell and taste can be secondary to all the other brain damage that's likely to begin to show as he deteriorates. Olfactory nerve is on the bottom. He's extremely likely to have at least some lesions in the frontal, parietal, and/or temporal lobes, and just like his olfactory nerve has deteriorated quickly, the other areas will, slowly. Language. Executive function. Logic. Memory. Basic intelligence. If the neurologist issues a "more likely than not" opinion on deterioration based on the MRI, this case jumps in value substantially. This is just the tip of the iceberg can be a huge argument.

 

[DocGonzo]

I think we should all take a trip to Arizona.

 

[T Bell]

Woz --> To piggyback a little on Henry Ford's take: The other thing that might stretch out your damages is time. If the doctor can tell you that the brain damage is indefinite (and my somewhat limited experience with nerve damage tells me that often they can't tell you whether it'll be short-term, long-term, or forever) then you get to argue not just the severity of the injury, but the potential duration. Not only can he not smell or taste, but he may never be able to do so again. He used to enjoy wine tasting, cooking, craft beer making etc., and now he can't. Etc etc etc.

I really feel like pushing the smell and taste can be secondary to all the other brain damage that's likely to begin to show as he deteriorates. Olfactory nerve is on the bottom. He's extremely likely to have at least some lesions in the frontal, parietal, and/or temporal lobes, and just like his olfactory nerve has deteriorated quickly, the other areas will, slowly. Language. Executive function. Logic. Memory. Basic intelligence. If the neurologist issues a "more likely than not" opinion on deterioration based on the MRI, this case jumps in value substantially. This is just the tip of the iceberg can be a huge argument.

Just the tip, you know, to see if he likes it.

 

[T Bell]

I think we should all take a trip to Arizona.

It's like the lawyers Traveling Road Show, where we evaluate cases.

 

[Henry Ford]

I'm desperately trying to shop a reality show involving lawyers. This could be it.

 

[Yankee23Fan]

I'm desperately trying to shop a reality show involving lawyers. This could be it.

I've been saying the same thing for years. Small firm law or something. Just video every day stuff and the clients. Have to figure out the whole ethical problem still.

 

[-fish-]

I'm desperately trying to shop a reality show involving lawyers. This could be it.

I've been saying the same thing for years. Small firm law or something. Just video every day stuff and the clients. Have to figure out the whole ethical problem still.

I think he means a team of hired gun litigators consulting with some solo and crushing some small town sap. Like kitchen nightmares with a law firm

 

[Zow]

I think we should all take a trip to Arizona.

It's like the lawyers Traveling Road Show, where we evaluate cases.

Quick, one of you get licensed in AZ and become of counsel...

 

[Zow]

Woz --> To piggyback a little on Henry Ford's take: The other thing that might stretch out your damages is time. If the doctor can tell you that the brain damage is indefinite (and my somewhat limited experience with nerve damage tells me that often they can't tell you whether it'll be short-term, long-term, or forever) then you get to argue not just the severity of the injury, but the potential duration. Not only can he not smell or taste, but he may never be able to do so again. He used to enjoy wine tasting, cooking, craft beer making etc., and now he can't. Etc etc etc.

Unfortunately reports are inconclusive as to permanence.

 

[Sarnoff]

I'm desperately trying to shop a reality show involving lawyers. This could be it.

I'd watch Woz conduct direct & cross using only questions posted in this thread.

 

[DocGonzo]

Woz --> To piggyback a little on Henry Ford's take: The other thing that might stretch out your damages is time. If the doctor can tell you that the brain damage is indefinite (and my somewhat limited experience with nerve damage tells me that often they can't tell you whether it'll be short-term, long-term, or forever) then you get to argue not just the severity of the injury, but the potential duration. Not only can he not smell or taste, but he may never be able to do so again. He used to enjoy wine tasting, cooking, craft beer making etc., and now he can't. Etc etc etc.

Unfortunately reports are inconclusive as to permanence.

Right. I think this is actually a good fact for you.

 

[DocGonzo]

But I know nothing of your case. I'm just trying to say that an uncertain duration is something you might be able to use to make some hay.

 

[-fish-]

Woz --> To piggyback a little on Henry Ford's take: The other thing that might stretch out your damages is time. If the doctor can tell you that the brain damage is indefinite (and my somewhat limited experience with nerve damage tells me that often they can't tell you whether it'll be short-term, long-term, or forever) then you get to argue not just the severity of the injury, but the potential duration. Not only can he not smell or taste, but he may never be able to do so again. He used to enjoy wine tasting, cooking, craft beer making etc., and now he can't. Etc etc etc.

Unfortunately reports are inconclusive as to permanence.

you mean, "he faces every day not knowing if he will ever even partially recover, or whether his quality of life will continue to deteriorate."

 

[Leeroy Jenkins]

Is woz sharing his fee here?

 

[Henry Ford]

I'm desperately trying to shop a reality show involving lawyers. This could be it.

I've been saying the same thing for years. Small firm law or something. Just video every day stuff and the clients. Have to figure out the whole ethical problem still.

I think he means a team of hired gun litigators consulting with some solo and crushing some small town sap. Like kitchen nightmares with a law firm

I actually want People's Court crossed with American Gladiators.