Blog by Peggy Smith Bush, Esq. of Southern Trial Counsel
Applying Pretrial Practice Skills to Everyday Practice
Everyone knows that good pretrial practice skills and preparation help trial attorneys develop confidence before they stand up to ask the first question of voir dire. An often overlooked benefit is that many of these skills are simply time and case management tools which are helpful even if yours is not a trial based practice.
If you or your firm has a preferred format for trial notebooks use that format to set up a “case notebook” early on and keep it updated. If yours is not a trial based practice use whatever format makes sense for the type of cases you handle. Whether you prefer to go old school with paper in a tabbed binder or maintain the information electronically is up to you. Either way, you will save time and effort if called upon to prepare a trial notebook. Having up to date information in one place will help you formulate and adjust your discovery plan and strategy as you prepare case status reports, outlines for hearings, mediation statements, and those out-of-the-blue questions from the partner on the case, your client, or opposing counsel. This “living notebook” can be a particularly helpful reference for attorneys who step into to cover depositions and hearings throughout the case.
A simple case information sheet can become a more useful tool if you customize it with information that you learn along the way. You may begin with style of the case, assigned judge, the parties, and the names of lead counsel. As time goes on add information which is most useful in your day handling of the case. For instance, add opposing attorneys who are responsible for the day to day handling of the case in addition to lead counsel. As the case develops add important deadlines, the names and areas of expertise of experts, and so forth.
Add a “tab” which includes bullet points of standard jury instructions which are applicable to this case. There may be special instructions drafted on the eve of trial but you can be pretty sure there are at least some standard instructions which will come into play. In the alternative, if yours is not a trial practice you might include standards and grounds applicable to type of action and the outcome you seek. Including a tab with statutes and seminal cases upon which you and the other side rely for your respective positions may help you formulate deposition questions to obtain sound bites for motion practice and/or cross-examination later on.
Include a section of operative pleadings. Some cases “live” for years, parties come and go, and causes of action may change. Maintain a separate section of superseded pleadings as an easy reference as to how the landscape changed over the course of the case. Having a separate section for these changes can save you a lot of time searching your electronic database and trying remember out why Party B is no longer in the case.
Even if you never step foot in front of a jury formulate a 5 to 7 minute opening statement and include the bullet points in your case notebook. An opening statement is simply a roadmap to help you visualize the case in a cohesive fashion, help you develop strategy, and identify the strengths and weaknesses in your case. Read the opening statement outloud to see if it makes sense in the context of this case. In other words, will this map get you to where you want to be?
In cases with complicated legal issues and/or factual scenarios charts can take time to create but will be helpful throughout the case. Witness charts may include whether the witness is an expert or fact witness, whether and when deposed, subpoena dates, and so forth. Document production charts are especially helpful as you prepare exhibit lists. Developing an exhibit chart early and keeping it updated is a wonderful time saving tool throughout the case whether you are preparing an outline for an expert’s deposition, mediation, or of course, trial. As you develop your exhibit chart include objections you may face and how you will respond.
Finally, putting this information in one place is merely a tool and the goal is to make your practice easier and more time efficient. Once you find format with which you are comfortable you may, as I have, find time to spend doing much more enjoyable things than searching through your files on a sunny Saturday afternoon before your Monday morning hearing.
Blog by A. Michelle Jernigan
Nothing Can Replace the Face-to-Face
By A. Michelle Jernigan of Upchurch Watson White & Max
Years of litigation and mediation experience have confirmed what I already knew intuitively – that face-to-face communication is superior to every other form of communication. In our modern age, we rely heavily on technology to facilitate efficient communication. The fax machine replaced the hand delivered letter; email replaced the fax machine and the telephone. Now we utilize text messages, skype and videoconferencing as a means of saving time and money. Not too many years ago a litigation attorney could spend hours daily on the telephone talking with opposing counsel, adjusters, clients and experts. Most of that telephonic communication has been replaced by keyboards and electronic devices.
Why is face-to-face communication superior to other modes of communication? Most of us have heard the theory that 93 percent of communication is non-verbal. This generalization has been referenced for years but has recently been criticized for its limited applicability. American psychologist Albert Mehrabian originated the idea in his 1971 book, “Silent Messages,” for which he confined his observations to a specific type of communication in a specific context. Mehrabian concluded that 7 percent of communication was the spoken words, 38 percent was the tone of voice and 55 percent was the non-verbal cues. Pop psychology took this conclusion and generalized it to all forms of communication.
Whether or not Mehrabian’s conclusions are accurate, they do offer insight into our quest for why face-to-face communication is superior. The primary reason is biological. Have you ever noticed that when you are face-to-face with someone who smiles at you that you also have a tendency to smile? Why is that? It is because our brain has mirror neurons that respond to the visible actions or cues of others. Mirror neurons are a neurological mechanism that enables humans to “mirror” another’s experience. The body language of the speaker conversing with the listener causes the stimulation of mirror neurons in the listener’s brain so that the listener actually experiences the same neurological response that the speaker does. In concrete terms, if speakers “scratch their head, swat a fly, or wipe away a tear, the listeners’ brains experience similar neural activity as if they were taking that action.” The firing of the mirror neurons also sends signals to the emotional centers of the brain so that the listener can experience the same feelings as the speaker. It is this neural synchronization between the speaker and the listener that distinguishes face-to-face communication from all other types of communication. This neural synchronization is based on multimodal sensory information integration and turn-taking behavior during communication.
So, what are the implications of this in your personal and professional life? Given the recent recession, businesses have explored the return on investment with regard to in-person business meetings and the costs associated with them. A 2009 Forbes Insight study revealed that, “while many companies are turning to technology to provide an alternative to face-to-face meetings, an overwhelming majority of executives expressed a preference for face-to-face meetings…” In their article titled The Future of Meetings: The Case for Face-to-Face, Duffy and McEuen identified three business needs that cry out for face-to-face meetings: 1) To capture attention; 2) To inspire a positive emotional climate and 3) To build human networks and relationships.
When we examine these three needs in the context of our business as lawyers we can see the value in face-to-face meetings. We always prefer decision makers to be physically present during mediation. How often have you spoken with client representatives by phone and encountered the difficulties of keeping them focused on the issues at hand? Likewise, the power to persuade and build trust is enhanced by face-to-face communication. Lawyers are frequently engaged in the process of advocating positions and encouraging others to give those positions weight and credibility. Lawyers are in positions of trust with their clients, the general public, mediators, judges, arbitrators and even with opposing counsel.
As lawyers, we tend to sterilize human interactions. We focus on the facts and the law. However, our clients are people and people are complex, multi-dimensional beings. People comprise the social, political, emotional, spiritual, physical and intellectual. All of these facets of our humanity are in play as we encounter disputes and engage in decision making. Show me a dispute that contains no emotional component and I will show you a dispute that does not involve people! “The most compelling argument in favor of personal meetings is their ability to generate emotions in support of learning and collaboration.” Given this argument, does it not make sense to deal face-to-face in dispute resolution, client meetings, presentations, and even the marketing of legal services? There is also a tremendous benefit to having the opportunity to work face-to-face with opposing parties or lawyers for the purpose of gauging their receptivity to your suggestions and arguments and being able to adjust your communication and behavior in an attempt to influence them or to connect with them emotionally to build trust or affiliation.
I have heard it said that the fabric of life is relationships. That rings true with family, community and business. Lawyers are well aware that building a successful law practice is all about relationships. “Regular face-to-face meetings are critical to effective networking and relationship-building.” These face-to-face meetings allow an opportunity for individuals to be less formal, less structured and simply get to know one another. With the impact of mirror neurons, these interactions can promote positive emotion and increase the likelihood that the participants enjoy and like each other. After all, it is rewarding to do business with people you like and unrewarding to do business with people you don’t like.
As lawyers, we use multiple modes of communication. Each of those modes should be evaluated in the context of what we are seeking to accomplish. If we want to communicate facts and data, email is a great way to communicate. If we want to negotiate a settlement, we could pick up the phone and talk to the other attorney. Better yet, we could take them to lunch, get to know them and ascertain the best way to persuade them. If we want to “land” a client, we might try a more personal face-to-face approach. If we want to build trust, we want not only to meet face-to-face, but also to look that person in the eye. In summary, if we want to build trust, build relationships, persuade, sell, evoke positive emotions, encourage, or confront, there simply is no way to replace a face-to-face.
 Duffy C., & McEuen, M.B. (2010). The Future of Meetings: The case for face-to-face (Electronic article). Cornell Hospitality Industry Perspectives, 1 (6), 6-13.
 Id. at p. 10.
 Jiang, Dai, Peng, Zhu, Liu and Lu (November 7, 2012) Neural Synchronization during Face-to-Face Communication. Journal of Neuroscience, DOI:https://doi.org/10.1523/JNEUROSCI.2926-12.2012. Turn-taking is a feature that has been shown to play a pivotal role in social interactions.
 Duffy C. & McEuen, M.B. (2010).
 Chang, M. (February 20, 2015) Why Face to Face Meetings are So Important, (Electronic Article)https://www.forbes.com/sites/ellevate/2015/02/20/why-face-to-face-meetings-are-so-important/#68c549b0aee9 and Bohns, V.K. (April 11, 2017) A Face-to-Face Request Is 34 Times more Successful than an Email, Harvard Business Review (Electronic article) https://hbr.org/2017/04/a-face-to-face-request-is-34-times-more-successful-than-an-email
 Duffy C., & McEuen, M.B. at p. 9.
 Duffy C., & McEuen, M.B. at p. 12.