The Young Texas Lawyer

New York Judge Gerald Lebovits has written a fairly comprehensive article regarding how lawyers should utilize email. The article, entitled E-Mail Netiquette for Lawyers, appears in the November/December 2009 New York State Bar Association Journal. The article is a bit overly cautious when addressing how one should send emails. If you were to go through every one of these tips before you hit send each time then you would have a hard time sending more than a few emails per day. There are some decent points that this reader did not think about such as writing “no reply necessary” to save your recipient’s time and avoid an additional mail item in your inbox, however, that nugget of knowledge was buried at the end of the long drawn out article. In fact, the sheer complexity of these tips reminds of the number of steps that a golf instructor requires for a successful golf swing. Only after ignoring that golf instructor and doing what just felt right did the ball go where it was intended to. Most of the tips are common sense, but they are probably worth a quick read below:

1. Don’t write something in an email that you wouldn’t say to someone’s face
2. If email leads to confrontational messages then speak by phone
3. Don’t turn your email into a back and forth chat… pick up the phone
4. Give the author the benefit of the doubt
5. Always edit
6. Be concise
7. Front load your emails and summarize questions and answers
8. Use the subject line to its full potential
9. Format your replies for clarity
10. Don’t overuse abbreviations
11. Be careful when responding from mobile devices
12. Don’t use emoticons
13. All CAPS is ineffective
14. Exclamation points aren’t so bad
15. Avoid format hyperbole, no memo pad pictures or pink backgrounds
16. Be respectful
17. Start your emails with a concise introduction
18. Tell the recipient how they can contact you
19. Announce if you will be away from your email for long periods of time
20. Never forward without permission and assume that yours will always be forwarded
21. Don’t send SPAM
22. Limit urgent emails
23. Take the time to respond appropriately
24. Only fill in the address box once you are ready to send
25. Manage your inbox daily
26. Watch out for Reply to All
27. Use CC and BCC Properly
28. Check and explain attachments
29. Use your address book wisely
30. Set up email groups
31. Request acknowledgment of receipt
32. Rely on timestamps cautiously
33. Be careful with interoffice email
34. Don’t be afraid to write “no reply needed”

From The Legal Intelligencer, comes an article about staying on top in a down economy and although most of the information is intuitive, it doesn’t hurt to have it in a short concise list.

1. Be the best lawyer you can be
2. Be respectful, conscientious, polite, and courteous to everybody
3. Bill, baby, bill
4. Don’t be a downer
5. Stay away from troublemakers
6. Become an expert
7. Develop and maintain client relationships
8. Get involved in firm activities
9. Obtain some business for the firm
10. Look for another job, but be smart

These tips aren’t limited to surviving the recession and most are much easier said than done but if you keep them in the back of your mind then you won’t miss an opportunity when it presents itself. For more details check out the full article by clicking the link above.

Most attorneys these days are carrying Blackberry smart phones to help them stay organized, keep in touch, and access the internet on the go. Although the iPhone has started to make its way into the legal marketplace, it still hasn’t seemed to get the job done for what lawyers need on a daily basis. Recently, and similar to Apple’s App Store, Research in Motion has started the “Blackberry App World” and YTL has combed through the myriad of applications to bring you the Top 10 Blackberry Apps for Lawyers.

1. The Law Pod – View the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy Procedure, Federal Rules of Evidence and the U.S. Constitution all on your phone.
2. LawPDA – State statutes for California, Texas, and Florida.
3. DateMathica – Helps you figure out the date of a deadline so you don’t miss it. See how many days you have left until a deadline. Easy to use and accurate.
4. BizTrackIt – Simple to use, project-based, time tracking tool. Only provides the functionality you really need to track your time painlessly so you don’t miss out on a single billable hour. Just select a project from a list you create, clock in and clock out.
5. WikiPock - Allows you to search and read the wiki encyclopedia articles without an internet connection (offline). All the articles are stored in your mobile phone’s memory so there is no need to download anything from the network. Over 2.8 million articles in English
6. Evernote – Allows you to easily capture information in any environment using whatever device or platform you find most convenient, and makes this information accessible and searchable at any time, from anywhere.
7. RDM+ – Remotely access your computer, even through NAT and Firewall from your phone. You can send and receive emails, edit word documents, surf web, manage files and folders and do hundreds of other things that you usually do sitting in front of your home or office computer.
8. Google Maps – Offers most of what you love about the desktop version—including satellite views, turn-by-turn directions, and local business searching—and adds a GPS-enabled, location-based search component for use with your BlackBerry.
9. WorldMate Live – Lets you check flight status, book hotels, connect with friends, and share your itineraries right from your phone. There’s also a currency converter, a time zone calculator, and BlackBerry Maps integration.
10. Quick Pull – Offers the same functionality as pulling your battery and can even be scheduled to do so at predetermined times. Sometimes your Blackberry will begin to slow down and this is a quick way to reset it and start fresh.

Under the Federal Rules of Civil Procedure, a company may be served with a 30(b)(6) deposition notice which will require a corporate representative to testify on behalf of the corporation. It is a powerful tool that allows requires the corporation to respond to questions regarding specific topics contained in the notice. It is then the corporation’s responsibility to seek out the right officers and employees to speak on each topic. A company can provide as many witnesses as it needs to cover all the requested topics.

For young lawyers it is imperative to conduct proper due diligence on the topics contained in the notice. When you fully understand the important issues, only then can you identify the right person to speak on behalf of your client. Also, even though a 30(b)(6) designee is testifying on behalf of the corporation, that does not generally limit the scope of questions. Most judges will allow the witness to answer questions outside the scope of the notice as long as the witness is testifying in an individual capacity regarding the out-of-scope topics and not as a corporate spokesperson.

The most important part of this process is making sure you pick good designees and fully prepare them to only answer the questions asked. It is the witness’s job to force the questioning attorney to ask questions. Designees that are too helpful or over explain themselves always hurt the company. Concisely answering questions is the only way to go.

A very successful attorney once told me that I should always act like a “duck swimming.” I was taken aback by the exact meaning of this, but luckily he went on to explain that ducks swim gracefully over a pond with no indication of the madness that is occurring under water. When you see the duck you don’t immediately think about how hard or fast his feet are moving or the possible predators that he is avoiding beneath him. All you see is the duck gliding across the water as if it is the easiest task in the world.

Similarly, the best lawyers make their jobs look easy without ever letting you know about the mayhem most likely occurring beneath the surface. They are positive and always seem to be in total control. The more you have on your plate, the more you have to act as if you aren’t on the verge of a nervous breakdown. Who wants to hire the attorney that is always complaining about being tired or too busy. Who wants to give the exhausted associate an important project when it appears as though he or she is on the verge of pulling their own hair out. Regardless of what is going on in your life and how you feel, it’s best to keep a poker face. You don’t want to miss out on the next big thing while you’re stressed about the current one. After all, your time is your product and it doesn’t make sense to act as though you’re constantly sold out.

Fortune online has a great article about advice that most influenced some very accomplished individuals’ lives. As they put it, “in a world of uncertainty, we could all use a little advice.” Some are mere cliches, but they make for a good read and provide some invaluable information.

As more people begin posting personal information on sites such as Facebook, Twitter, and Myspace, lawyers are beginning to realize that access to such sites can become a big advantage. These pages contain a variety of personal facts, pictures, videos, and sometimes even a user’s state of mind. Utilizing proper discovery is essential to uncovering this evidence for both civil and criminal matters. Each site carries its own privacy features, therefore formal discovery is necessary to remain ethical in gaining full access. Some courts have even gone as far as issuing a subpoena to site administrators in order to obtain all previous versions of the pages stored on remote servers in case the user deletes or changes information. Information on these sites can give you insight on your opponent as well as some ammunition to attack witness credibility.

Dr. Robert Lindeman and his attorney found out about this the hard way in May of 2007. Lindeman was blogging under the alias “Flea” about his experience as a medical malpractice defendant during the trial. The plaintiff’s attorney discovered his true identity and exposed the blog on the witness stand, the case immediately settled.

After conducting extensive due diligence on opposing parties, follow up by clearing up any questions during depositions to prevent an ambush at trial. It’s also fair to assume that your opponent will be conducting a similar search of your client’s online presence. Make sure you ask your clients about all of their online activity and conduct a thorough review prior to filing any type of legal action. Risk management of such pages becomes an important issue the more readily personal information becomes available on these sites.

Important evidence can be found on social networking sites, but make sure you ask properly. There are some very serious ethical concerns and consequences regarding the use of these sites by attorneys. Preparation and awareness about these sites is an absolute must for both your client’s sake and the case.

Anthony H. Lowenberg writes an informative article on the ins and outs of the commonly used ‘fishing expedition’ objection. Essentially this objection is made when an overly broad discovery request is made for information or documents that are not reasonably calculated to lead to the discovery of admissible evidence. When a request is so broad that opposing counsel cannot state exactly what they are looking for then this type of request should be objected to on the above grounds. The article is a good read for any young attorney and references some important case law clarifying the rule.

Ari Kaplan, author of The Opportunity Marker: Strategies for Inspiring Your Legal Career Through Creative Networking and Business Development, has written a fantastic article on leveraging the millennial generation’s knowledge of technology. Some of Mr. Kaplan’s suggestions include having partners and associates sit down together and discuss Web 2.0 and social networking sites, such as LinkedIn and Facebook. As we have written before, regardless of your age or inexperience, young attorneys have something to offer those with more legal experience. The hardest part is usually trying to convince each generation that the other knows more than them about something.

For the past few weeks, the Houston Chronicle has been reporting about the shortcomings of the current court appointment system in the Houston area. Specifically, the paper has brought to light the fact that capital defenders are taking too many cases and spreading themselves far too thin.

Here’s a remedy: (1) stop giving the same attorneys all the work; (2) start gradating the work based on ability and case experience; and (3) start a formal mentoring system to develop a farm league of sorts for young defense attorneys.

Stop giving the same attorneys all the work. I was shocked to read that the attorney suffering the most criticism, Jerome Godinich, accepts misdemeanors and federal cases in addition to the over 300 state cases he handles. Can it be that no other attorneys are available, and that Godinich is simply filling the gap left by a paucity of attorneys? Take a look at the bar register, and I think you’ll find that isn’t the case. Perhaps the people assigning the cases think he is just the best man for the job. If that’s true, I would like the people heading the appointment office in Harris County and the people heading the CJA panel for the Southern District to explain how it is that a man who accepts nearly three times the ABA recommended number of clients is the best person to keep getting cases. Share the wealth, and give some young attorneys some experience.

Start gradating the work based on ability and case experience. The appointment system, so far as I can tell, requires only that an attorney show proof that she has handled a requisite number of cases. The system doesn’t look to the ability of the attorney or the attorney’s skill set. Frankly, as a former public defender, I can tell you that I would rather have a young, diligent attorney with limited experience than an attorney who is running a plea mill. Of course, the current system doesn’t make the distinction. Until the current system begins evaluating attorneys based on ability, Houston won’t develop enough competent attorneys to handle the overflow of complex, high-stakes cases against indigent defendants.

Start a formal mentoring system. Houston, for some reason, prefers a patronage appointment system to a public defender’s office. Putting aside the debate over which is better, I can say that the current method does not provide a true mentoring system in the area. Defense attorneys, unlike district attorneys, are faced with running a business in addition to practicing law. Hence, every new face accepting criminal clients is another competitor in the world of Houston defense attorneys. That isn’t to say there aren’t helpful defense lawyers. I’ve met a few. That said, business people aren’t in the business of helping the competition. For every attorney helping you out, there are ten others looking at defense work as a zero sum game. It is time for the defense bar to push for a formal mentoring system that will create a generation of competent, dedicated defense attorneys.

Fix those problems, and perhaps Houston will begin to develop a farm league of sorts for the defense bar. Houston desperately needs a base of attorneys that are capable of taking higher level cases off the hands of attorneys handling capital offenses, but to get that, you have to develop a generation of young attorneys capable of taking the lower level cases off the hands of more senior defense lawyers. Until that happens, I think the current system will continue denying acceptable representation to criminal defendants.

Written by YTL Contributing Author Eric Hudson