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December 26, 2006

Search 7 Million U.S. Patents Using Google

The new Google Patent Search covers U.S. patents from the 1790s through 2006. Not covered are patent applications, international patents, or patents from the last few months.

There's more at The Invent Blog and Patent Baristas.

Related posts:

1. "Googling for Demonstratives"

2. "Searching for the Law"

December 21, 2006

Where and How to Stand During Direct and Cross-Examination

Assuming the trial judge gives you the freedom to move around the courtroom, does it matter where and how you stand during direct and cross-examination?

During direct examination, many lawyers recommend standing near the far end of the jury box, which forces the witness to look at the jury when answering.

Is cross-examination any different? According to Steven Puiszis, President of the Illinois Association of Defense Trial Counsel, it's best to move around during cross-examination. That's according to Helen Gunnarsson's "Cross-Examination: Beyond the Perry Mason Moment," in this month's Illinois Bar Journal--

Puiszis says that he paces around the courtroom during his cross-examination so that the witness will look at him and not at the jury. Doing so not only emphasized Puiszis's role as star but also further diminishes the witness's opportunity to gain credibility with the jury through eye contact.

What's the "role as star" business? During cross-examination, the cross-examining lawyer should be the main focus of the jury's attention. It's the complete opposite of direct, when the witness plays only a supporting role. During cross-examination, the jury's attention should be squarely on the questioning lawyer, who asks leading questions to which the witness can only answer yes or no.

To read Gunnarrson's entire article about cross-examination, look here (ISBA members only).

December 19, 2006

Technology Tip: Receive Faxes on Your Smart Phone

Though connected to email with devices like a BlackBerry or smart phone, lawyers might still have trouble receiving faxes when out of the office. Internet fax services like eFax can take care of the problem. For a modest fee, the company sends all your faxes to your email address as a pdf file. To do this, they'll also need to provide you with a new fax number, but you can simply set things up so that faxes to your current number are automatically forwarded to the new one. That way, you don't need to change your stationery.

Note: This tip was suggested by an article written by Allan Press for the 12/06 newsletter of the Illinois Bar Associations Standing Committee on Legal Technology. ISBA members may be able to access the newsletter here.

December 14, 2006

Finding Other Law-Related Weblogs

There are two new legal blog search tools from Justia.com you might want to know about: BlawgSearch.com for legal weblogs and Blawgs.fm for law-related audio and video content.

If you want an introduction to these new tools, see the Justia weblog, where Tim Stanley has a long post explaining the site's Blawg Directory, Blawg Rankings, and more. There are already 48 law-related weblogs in the "trials and litigation" category, with other law-related weblogs being added each day.

That's a lot of useful, free information from lawyers who have no problem sharing their secrets with others--much more than when I started Illinois Trial Practice three years ago.

December 12, 2006

What to Do When Your Cross-Examination Fails

What can you do when your cross-examination fails not because of your own incompetence, but because the witness is so, well, slippery?

One answer: During closing, talk about what happened. You might even call the witness a "greased pig."

Full details at The Maryland Injury Lawyer Blog.

December 07, 2006

New Amendments to the Illinois Supreme Court Rules

The Illinois Supreme Court has made a pdf file of the new amendments to the Illinois Supreme Court Rules available online. The amended rules are 40, 213, 316, and 527; some of the amendments are effective immediately, and some not until January 1.

Litigators might be most interested in the amendments to Rule 213(g), which explain how an expert's trial testimony is circumscribed by the opinions disclosed in interrogatory answers and discovery depositions. The amendments are an attempt to make clear that an expert cannot disclose new opinions in an evidence deposition and then testify to those opinions live at trial. Opinions are to be disclosed before the evidence deposition, in an interrogatory response or a discovery deposition.

The amended rule reads as follows, with the new amendments noted in italics:

213(g) Limitation on Testimony and Freedom to Cross-Examine.

The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition. Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial.

Without making disclosure under this rule, however, a cross-examining party can elicit information, including opinions, from the witness. This freedom to cross-examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.

December 05, 2006

New Frontiers in Electronic Discovery

It's likely you already think about email when drafting your e-discovery requests. But there are several other newfangled ways of communicating you might not think to consider--

  • Web-based email;
  • Instant messaging;
  • Voicemail;
  • Company-provided productivity tools;
  • Portable storage devices.

According to forensic technologists David Sumner and Damon Reissman, these other communication tools are "often overlooked." To find out why this might be a mistake, read their article at Law.com, "E-Discovery May Target Unexpected Sources."

November 30, 2006

Searching for the Law

In his article "What can Google do for you?" (Trial, 9/06), David Ratcliff suggests a number of Google-powered search engines that might be useful to lawyers, including these:

Ratcliff also reminds readers to try Google's advanced search options, which allow Boolean operators. There are still other suggestions in the article.

Extra-serious Google users should check out the book Google Hacks, which documents a number of useful but little-known Google capabilities.

November 21, 2006

Closing Argument: Comparing Your Experts to Theirs

Juries in personal injury cases generally hear two versions of the medical facts, each presented by an opposing group of experts. If this isn't confusing enough, there's also testimony about the medical facts from the treating doctors, who may not agree with any of the experts. The treating doctors might disagree with each other too.

How can you help the jury sort it out? If the better set of experts and treating physicians is on your side, emphasize this point with a chart that compares your doctors and experts to their doctors and experts. Here are some points of comparison you might use:

  • Where the doctors went to medical school;
  • The doctors' board certifications;
  • The doctors' research interests;
  • The doctors' publishing history;
  • The doctors' teaching experience.

In closing, you can use the chart to point out that the most qualified doctors and experts support your view of the case. Example: "You heard a lot in this case about a diagnosis of adhesive capsulitis, which was presented mostly through the testimony of Dr. Jones. Remember Dr. Jones? He's the doctor who said he's not yet board certified, though he's 'working on it.' Let's take a closer look at Dr. Jones--let's compare his credentials to those of Dr. Smith, who disagreed with him about the diagnosis of adhesive capsulitis. Dr. Smith should know about adhesive capsulitis. He's treated it every single day, day in and day out, for more than twenty-five years. He's published more than thirty articles specifically on the topic -- adhesive capsulitis has been his primary research interest since just after he graduated from Harvard medical school. Not only is Dr. Smith board-certified in orthopedic surgery, but he helps to write and administer the board-certification exam to new doctors and teaches orthopedic surgery to medical students. Now let's look at Dr. Jones. Dr. Jones isn't board certified, has never published on adhesive capsulitis, and has only done original research about knees, not shoulders. Although he treats shoulders in his practice, he's only been doing it for two years--no, sorry, only a year and a half, only eighteen months."

The example is a little over-the-top but you get the idea. Although the example relies on only a few points of comparison, there might be many others in any given case. Don't wait until your closing argument to start thinking about them. Instead, get into the habit of viewing the medical part of the case through a points-of-comparison lens. If you do, you'll automatically think about comparisons as you prepare the case, especially when you review C.V.s and depose the treating doctors and experts.

November 16, 2006

The ABA Weighs In on Metadata

The ABA has issued a new ethics opinion concerning the uses and misuses of metadata. I have details at Legal Underground, "New ABA Ethics Opinion on Metadata," which also lists all my prior posts on the topic.

November 14, 2006

Expert Depositions: The World's Shortest Outline

I knew a lawyer who used to say that expert depositions were extremely easy. "You only need to ask a single question," he'd say. "'What are your opinions?'"

Expert depositions aren't quite that easy. Even so, there's something about expert depositions that make lawyers want to boil them down to their bare essence. It's a sort of game, like trying to prove a math theorem in the fewest steps possible.

It's in this spirit that one should read a post at the Trial Lawyer Resource Center: "Expert Witness Deposition: Five Questions To Ask." Here's most of the post--

Expert’s deposition. While there is no substitute for being prepared, you can take an effective deposition "on the fly" by remembering five essential questions and their logical subquestions:

1. Who engaged you in this case.
2. What they ask you to do?
3. What did you do?
4. What conclusions, opinions did you reach and what do you intend to testify to at trial?

It might be the world's shortest expert-deposition outline. Four questions plus a fifth I didn't include--to see it, you'll have to read the original post.

Is it a good idea to start an expert deposition with such a simple plan? If nothing else, the exercise of writing a very short outline is a helpful one, as it will force you to consider what's most important about the deposition.

I'll talk more about this idea in my third podcast on advanced deposition techniques, coming soon.

Related posts:

1. "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial."

2. Advanced Deposition Techniques, Part 1

3. Advanced Deposition Techniques, Part 2

November 09, 2006

A Taped Discussion about the New Federal E-Discovery Rules

Here's how the Coast to Coast show on the new federal e-discovery rules is described at the Legal Talk Network--

On December 1, 2006, new amendments to the Federal Rules of Civil Procedure will take effect and change how civil cases will be tried forever. In this Coast to Coast we discuss the e-discovery changes, what the impact will be for corporate America and how companies can prepare themselves before the new rules take effect.

The show participants are hosts J.Craig Willams and Robert Ambrogi and their two guests,  Michele C.S. Lange, Esq., of Kroll Ontrack Inc., and Dennis Kennedy, the legal technology consultant and weblogger.

You can listen to the show on your computer or download it as a podcast.

November 07, 2006

Featured at the Wall Street Journal Law Blog: The Curmudgeon's Guide to Practicing Law

I've written about Mark Hermann's excellent Curmudgeon's Guide to Practicing Law on two earlier occasions, here and here. Now the Wall Street Journal Law Blog has also joined the bandwagon, highlighting the book and excerpting it in a series of posts, as follows:

If you're interested in learning more about the book, these posts are a good place to start.

November 02, 2006

A Second Podcast on Advanced Deposition Techniques

You'll find my second podcast in the deposition series at Legal Underground: The Legal Underground Podcast Episode #50: Advanced Deposition Techniques, Part 2.

In Part 1, I covered five tips for asserting control at depositions. The new podcast covers four tips for using psychology at depositions.

October 31, 2006

Oral Argument Tips from Someone Who Does It a Lot

From Law.com: "Making the Most of Oral Argument," by Howard Bashman--

When I am representing the appellant, and thus am the first to take the lectern when the case is called for argument, I know that I will have at least a few moments of uninterrupted time before the onset of a barrage of questions. That time is best used to focus directly on the result I am asking the court to reach and the several reasons (to be covered in more detail during the argument, if the court allows) why the court should reach that result.

There's that and much more in Bashman's column. Read it before your next oral argument.

October 26, 2006

All You Need to Know About Electronic Discovery

At Law Practice Today, Dennis Kennedy and Tom Mighell have a very useful article titled "EDD-ucating Yourself About Electronic Discovery." It begins like this--

It was back in July 2004  when Tom published the first Strongest Links article on the subject of electronic discovery as part of an influential EDD-themed issue of Law Practice Today.  Since that time, the electronic evidence landscape has changed considerably, and EDD is more important that ever.  With December 1 -- the date the amended Federal Rules of Civil Procedure will take effect -- fast approaching, we thought it would be a good idea to revisit those links, and provide an update to those of you who are still learning about the intricacies of e-discovery.

The rest of the article collects links to portals, resources, blogs, and cases on electronic discovery. It's an article worth bookmarking.

October 24, 2006

Admissibility of Medical Records as Business Records in Illinois

A recent case from the Illinois Appellate Court, Troyan v. Reyes (3d Distr. 9/29/06), contains a helpful primer for getting medical records into evidence without a doctor to sponsor them. Though plaintiff's counsel wanted to introduce medical records at trial, the doctors were not available to testify. As a work-around, plaintiff's counsel called the record keepers from the various hospitals and had them testify to the foundational requirements for business records, which are found in Illinois Supreme Court Rule 236.

Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter . . .

At trial, the record keepers testified to these foundational requirements. During closing, plaintiff's counsel wanted to publish the records to the jury. When the defendant objected, the trial court denied the request as to a radiology report and some of the other medical records that contained "observations, assessments, diagnoses and impressions of certain doctors."

On appeal, the Troyan court considered whether the medical records, which contained the opinions and diagnoses of absent doctors, should have been published to the jury under the business-records exception to the hearsay rule.

After setting out the foundational requirements for business records from Rule 236, the court made the following points:

  • First, in order to introduce a record under the business-records exception to the hearsay rule, "it is not necessary that the author or creator of the record testify or be cross-examined about the contents of the record";
  • Second, once a witness has established the foundational requirements, "the records themselves should be introduced";
  • Third, these rules apply even to "diagnoses and opinions contained in medical records," which should be "admissible and published to the jury as a proper part of the business records exception to the hearsay rule";
  • Fourth, there is an important exception: when the medical records either aren't relevant or are "too complex for the jury to understand on its own," then these rules do not apply and the medical records should not be introduced into evidence.

Applying these principles, the Troyan court held that the radiology report, which contained "complicated medical terminology," was "too complex and confusing to aid the jury absent medical testimony." Most of the other medical records were admissible, however, since the jury "could have easily understood the opinions and diagnoses contained" in the reports in that they did not contain "difficult medical terminology or opinions."

Related post: "Police Accident Reports and the Business Records Rule."

October 19, 2006

My Deposition Book Is Coming Soon

My book about depositions, Deposition Checklists and Strategies, will be published next month by James Publishing. You can find details at the publisher's website here (pdf) and at Legal Underground.

October 17, 2006

A New Discovery Resources Column: Metadata Revisited

The latest "Thinking E-Discovery" column is up at DiscoveryResources.org: "Metadata Revisited: Recent Developments, Correcting Common Misconceptions and Analyzing the Florida Approach," by Dennis Kennedy, Tom Mighell, and me.

Our past columns are available there as well:

October 12, 2006

The Illinois Supreme Court on Class-Action Waivers in Arbitration Agreements

In Kinkel v. Cingular Wireless, ____ N.E.2d ____ (Ill. 10/5/06), the Illinois Supreme Court held that an arbitration clause that prohibited class-wide arbitration was unconscionable.

The case began as an Illinois state-court class action in which plaintiff alleged that Cingular's $150 early-termination fee was an illegal penalty in violation of the Illinois Consumer Fraud Act. Plaintiff's agreement with Cingular included an arbitration clause with a class-action waiver, that is, a provision that “no arbitrator has the authority” to resolve class claims. Based on this clause, Cingular moved to compel arbitration solely on plaintiff's individual claims. The arbitration fee was $125. Cingular did not desire arbitration on a class-wide basis.

The trial court denied the motion to compel arbitration, holding that the class-action waiver was unconscionable and that the entire arbitration agreement unenforceable. After an intermediate appeal, the Illinois Supreme Court reviewed the case. The Supreme Court agreed that the prohibition of class arbitration was unconscionable. However, it also ruled that the class-action waiver was severable and that the arbitration clause could be enforced without it. The practical effect is that although Cingular can arbitrate the plaintiff's individual claims, it cannot preclude arbitration of the class claims, a result it was hoping to avoid.

The Supreme Court summarized its reasoning on unconscionability as follows:

In sum, we hold that under the circumstances of this case, the waiver on class actions is unconscionable. It is not unconscionable merely because it is contained in an arbitration clause. It is unconscionable because it is contained in a contract of adhesion that fails to inform the customer of the cost to her of arbitration, and that does not provide a cost-effective mechanism for individual customers to obtain a remedy for the specific injury alleged in either a judicial or an arbitral forum. We further hold that the offending clause is severable from the arbitration clause.

We do not hold that class action waivers are per se unconscionable. It is not unconscionable or even unethical for a business to attempt to limit its exposure to class arbitration or litigation, but to prefer to resolve the claims of customers or clients individually. Indeed, it has been suggested that, as a matter of economic theory, consumers may benefit from reduced costs if companies are allowed to engage in this strategy. See, e.g., J. Sternlight & E. Jensen, Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, 67 Law & Contemp. Probs. 75, 92-99 (2004). The unconscionability of class action waivers must be determined on a case-by-case basis, considering the totality of the circumstances.

At Workplace Prog Blog, Richard Bales has more, including thoughts about the article that was cited in the quoted portion of the Supreme Court opinion.

Related posts:

1. "Those Pesky Arbitration Clauses" (7/9/04)

2. "Recommended Reading About Arbitration Clauses: Bess v. Direct TV" (8/30/04)

3. "Another Class Action/Arbitration Clause Decision" (3/4/05)