Because it's the beginning of the new "school" year and the beginning of many first year attorneys' first law jobs, I'm providing as much advice as possible to help ease former law students into their new professional careers.

EMPATHIC ASIDE:  If you're feeling like EVERYTHING is taking you WAY too long, I share with you the fact that my own first two weeks of practice were consumed by 10-hour days drafting a simple motion to amend a complaint on the eve of trial -- a motion that, two years later, I could draft in my sleep. 

Fear not.  We've all been first year's and we all understand.  If your superior doesn't, you might wish to remind him that though you're one of the hardest working new associates in rock 'n roll, you are doing for the first time tasks he's been doing for a lifetime.  

THE GOOD ADVICE 

Today I bring you good advice on writing summary judgment motions from a series of posts on that topic by a defense employment litigator, George Lenard, with the St. Louis, Missouri firm of Harris, Dowell, Fisher and Harris.   The blog entry is from George's Employment Blawg and it covers the practicalities of strategically planning for, preparing, and drafting summary judgment motions.

The only thoughts I have to add to George's are deposition-related since I teach deposition skills to young lawyers once or twice a year and hence am always thinking about their questions and challenges.  

The winning summary judgment motion is the foremost reason that you need to make a clear factual record containing party admissions in the depositions that you take.

• too many attorneys of all levels of experience treat the deposition as purely a discovery device, thereby losing the true benefit of this "discovery" procedure, i.e., it is often your sole opportunity to obtain the admissions necessary to prevail before trial.
• how do you get a clear admission?  PLANNING, PLANNING, PLANNING
  • you need to know what you need the witness to say to prevail in the summary judgment motion before you take the deposition
  • you must therefore have done the necessary prep work on the summary judgment motion before taking the deposition
  • once you know what you need the witness to say, you must "set him up" to say it. 
  • how do you do that?
  • learn how to use documents skillfully to elicit admissions -- this requires not only ease with authenticating and establishing the business records exception to the hearsay rule for those documents but also . . . .
  • the ability to ask leading cross-examination questions (one question, one fact) about those documents
    • i.e., this is the employment agreement you signed, correct?  that's  your signature at the bottom, is it not?  your signature indicates that you read and understood the terms of this employment agreement  at the time you signed it, correct? (directing the witness' attention to the relevant clause).  You were telling the truth when you signed your name there, correct?  You had in fact read and understood the agreements terms, isn't that so?  Turning to paragraph 6, yes, please do take all the time you need to read it.  Have you read all of paragraph 6?  O.K.  You read and understood this paragraph when you signed the agreement, isn't that right?  And this paragraph provides that, quote, employee agrees that his employment can be terminated for any or no reason at any time unquote.  That's one of the terms you agreed to correct?
  • then, of course, you'll have to move on to the "meat" of the case, which generally requires you to counter the assertion that the "at will" provisions of the employment agreement are irrelevant because the employee was fired for whistle blowing, or left her company's employ because of a hostile environment or in respone to sexual harassment. 
  • this, of course, is trickier and more difficult but you must plan a line of cross-examination with the goal of eliciting the admissions you need to prevail on a summary judgment motion in an extremely fact intensive area of the law.

Once again, I remind my readers that favorable negotiated settlements often depend far more upon the credible threat you present to your opponent than any of your own negotiating skills or those of your mediator.  There are many techniques for successfully bargaining from a position of weakness.  We will be writing about those techniques over the next few weeks. But we'd really rather see you bargaining from a position of strength, which is why we're providing these first-year  tutorials on building the best factual and legal case at the earliest possible opportunity to speed your client to its probable sole litigation destination -- settlement.

C'MON, BE A REAL LAWYER:  USE THE WITNESS' DOCUMENTS AGAINST HIM IN DEPOSITION

And here's more on using a witness' documents against him.  This is cross-examination at its finest -- the witness either admits the damning "spin" in the "testimony" being given by the cross-examiner or he looks evasive at best, like a liar at worst.  This cross-examination from one of the Vioxx trials is from the Illinois Trial Practice Blog care of this week's Blawg Review (the Labor Day Special Historical Edition). 

SPEAKING OF THE VIOXX TRIALS .... my good friend and colleague Judge Victoria Chaney of the Los Angeles Complex Court who presided over the first Los Angeles Vioxx trial will be speaking with me, Judge Alexander Williams, III (full time Superior Court settlement Judge), arbitrator and mediator Jay McCauley (formerly of Paul, Hastings), the Hon. John Leo Wanger, Ret. (former U.S. Magistrate and fomer partner at Irell & Manella) and registered patent attorney and arbitrator-mediator, Les Weinstein of Sheldon Mack and the AAA here in Los Angeles on November 13 -- Settlement Techniques that Give You the Winning Edge.