Winning Litigation

You know why your writing is so good? And I’m not just talking about ‘Winning Litigation.’ You’re like a man from Mars. All lawyers know what it takes to be a good lawyer. But you approach a situation with no pre-conceptions. And since you’ve got such an analytical mind, you see a problem and you figure out the solution.

– Linda Buzzell, psychologist, career counselor, one of the founders of eco-psychology, published author, How to Make it in Hollywood, founder, International Documentary Association, Sustainable Small Cities Project, International Association for Ecotherapy

A must read for every law student. The State Bar should increase its fees so it can afford to give a copy of this book to every new lawyer when it hands him his license.

– Patricia Goldsmith, attorney licensed in California for many years

Straight from the school of hard knocks. There are two ways to learn this. Spend 30 years in the trenches or read this book. Save the time, read the book.

– Dan Castro, attorney licensed in Texas for many years, published author who charges $5,000 to give a speech based on his published book Critical Choices That Change Lives: How Heroes Turn Tragedy into Triumph, founder, networking website, EntrepreneurOlogy.com

Winning Litigation:

Powerful Tools and Techniques You Didn’t Learn in Law School

by David Dantes

Copyright 2012 David Dantes & Raymond Hovsepian

Smashwords Edition

This ebook is licensed for your personal enjoyment only. This ebook may not be re-sold or given away to other people. If you would like to share this ebook with another person, please purchase an additional copy for each recipient. If you’re reading this ebook and did not purchase it, or it was not purchased for your use only, then please purchase your own copy. Thank you for respecting the hard work of this author.

All rights reserved. This book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the author except for the use of brief quotations in a book review.

The Law Offices of David Dantes

12400 Ventura Boulevard.

Suite 689

Studio City, CA 91604-2406

Phone 818-386-9333

Fax 818-386-9444

Cell 818-606-8314

e-mail: txmxesq@danteslaw.com

websites: www.landlordtenantquestions.com

This Book is Dedicated to:

All of the people mentioned in this book.

Because they’re the ones that taught me everything that’s in this book.

Table of Contents

First, a Note on Legal Terms

Introduction

Chapter 1. Attitude

Chapter 2. Clients

Chapter 3. Alternatives to Litigation

Chapter 4. Know the Enemy (Other Lawyers)

Chapter 5. Courtroom Basics

Chapter 6. Litigation Tactics: A Sampler

Chapter 7. Working with Others

Chapter 8. Settlement

Chapter 9. Forms

Chapter 10. Conclusion: Becoming a Better Lawyer

Bibliography

Filmography

Acknowledgements

Index

About the Author

Contact Information

Disclaimer

All of the incidents portrayed in this book are true. All of the people discussed in this book really exist.

Most of the names, including those of people, Courts, ethnic groups, cities, counties, states and countries, have been changed.

To protect me.

First, a Note on Legal Terms

This book is based on my personal legal experience, in the Los Angeles, California, area.

Other states, and even other parts of California, use different terms.

For example, the Law and Motion Courts might be called Law and Discovery.

Then, too, substantive law, Court procedure, the Rules of Court, and the Canons of Legal Ethics, vary somewhat from place to place, some even from Courtroom to Courtroom.

The exact grounds for, say, being relieved as counsel, or a motion to compel answers under oath to discovery, may vary a little.

I haven’t bothered to research all of those variables because, in the overall scope of this book, they’re minor. And you’ll learn those variations as you need to do so.

Nor is this a hornbook that teaches black letter (or, substantive) law.

It’s about your attitude, your clients, other lawyers, Court personnel, and tactics and techniques for everything you need for dealing with them all, from staying out of Court at the beginning, to either settling or winning your case at the end.

It’s about people. And those things don’t change.

Introduction

Why You Need this Book

You need this book because:

1. Most of what’s in here isn’t taught in law schools. Even if your school has a competent, experienced litigator teaching trial advocacy, you still won’t learn most of this information there; and

2. Working in the legal profession will not, without some outside help (like this book), teach it to you. At least not in the first 30 or 40 years or so.

How do I know that?

I’ve been working in the legal profession for over 30 years, as a law student, first in a legal aid clinic, then in the L. A. County Public Defender’s Office, for four years as a lawyer in an eviction mill, and free-lancing, first as a law clerk, then in private practice as an attorney, in both civil and criminal cases.

And I have met, worked for, worked with, partied with, opposed, negotiated with, negotiated against, represented, and just watched, in hundreds of offices, Courtrooms, and conference rooms, hundreds of lawyers, from sole practitioners to members of quite a number of the largest law firms in California, the United States, and beyond. And everything in between. I’ve worked for some very famous criminal attorneys, and a number of civil attorneys that I consider to be just as good as those were.

And guess what? MOST attorneys, until they’ve been practicing for quite a few years, don’t know most of what’s in this book. They ought to; they need to, right out of the gate. But they don’t.

We all need all of this, from Day One.

Let me put it in personal terms.

Some of the principles (or rules) in this book I learned over 30 years ago, while I was still in law school and had just started clerking for real lawyers.

On the other hand several of the principles in here I only figured out in the last few months.

And guess what else. I’ll bet a lot of money (and I’m not a gambling man) that there are quite a number of other principles out there that I have yet to learn.

What’s in this book will, if you actively practice it, move you into the top ranks among practicing litigators, short-cutting your learning curve by at least 20 years.

This book will not:

- Teach you a lot of actual in-trial, Courtroom techniques. Those fall into a variety of areas, many of which have already been well covered by other experts in other books. See the Bibliography at the back;

- Teach you how to run your office as a business. There are several good books out there that already do that;

- Teach you how to hire and fire staff.

What this book will do is teach you invaluable tricks, tools and techniques and, most importantly, attitudes and perspectives, that I’ve learned out there (and that all good lawyers know), that will enable you to out-think and out-plan your opponent

- partly because you’ll understand him or her better than he does himself;

- partly because you’ll have an introduction to the pitfalls of human nature that most lawyers have to spend years learning through trial and error;

- but mostly because you’ll be looking at a bigger picture than he even knows there is.

The One Assumption of this Book

There is one assumption I’m making in what I say here:

that the hundreds of lawyers I’ve worked with or against, or just observed, are not atypical of all the thousands of others out there.

That is to say, that my experience is NOT an aberration.

After you’ve been practicing for about two or three years, look around you, re-review this book, and you’ll agree.

How to Use this Book

I didn’t write this book as a workbook.

BUT, you can use it like a workbook. Here’s how:

It’s neatly divided into individual principles or rules. Every rule that I’ve already learned that applies to the subject of that chapter.

What I recommend is that, after reading it through once, you go back and take it one rule at a time, allow a set amount of time to that rule (and only that rule), say one week or one month.

Then, for that time, keep that rule on your desk, in your calendar, or wherever it needs to be, to remind you, over and over during the day, to try to apply that rule.

You know, like a word a day in every way. Except that you’ll be doing a principle (or rule) a week (or month).

I know. If you devote an entire month to each rule, it’ll take you YEARS to go through it all.

So, what else are you going to be doing all those years, that’s so important that you can’t devote a little time every day to, systematically and methodically, becoming a better lawyer, rather than having to rely on trial and error?

By the time you get to the Other Lawyers chapter (Know the Enemy), you’ll start finding rules that you’ve already learned (trust me on this), so you can skip them, and it won’t take nearly that long.

But, if you apply one rule at a time, in order, at the end of that time, you will have taken the entire book to heart.

And you will have learned a lot about how to be a good lawyer that most lawyers are still learning through decades of trial and error, the way I had to learn them.

Chapter 1. Attitude

The Most Important Rule in this Book: Self-Evaluation and Self-Criticism

You can’t learn if you don’t constantly evaluate and re-evaluate your work: How did I do, what did I learn, how do I feel about it, what would I change, what could I have done better?

If you put this book down now, and learn only this one lesson – but really learn it – and apply it – you will already be ahead of the pack.

What does that mean? Unfortunately, most people feel that once they finish school they can stop learning.

Which is why, when the California State Bar decided it might be a good idea if we continued learning after we got licensed as lawyers, there was so much grumbling. As if all the law, procedure, and technology we’d learned in law school would never change for the next 40 years or so.

Too many lawyers only do this evaluation for the first few years of practice, or until they stop making total fools of themselves in Court. After that those types figure they already know everything, so why try to learn anything new?

BUT, lawyering is a lot of hard work, and involves learning a lot of new skills. You can’t get better at it if you don’t constantly evaluate your performance. Then re-evaluate it. And keep learning. Every day. Yes. For the rest of your life.

I’ll cover this in prospective terms in Chapter 10.

Every time you hang up the phone with a potential client, or walk out of a Court appearance, or get a response to a letter you sent out, ask yourself:

Did I accomplish what I intended?

If so, did I do it the best way possible?

If not, where did I go wrong?

Either way, what could I have done better?

If you keep this one rule in mind, and really apply it, ALL THE TIME, you will be teaching yourself how to become a better lawyer all the time.

This is not to say that you shouldn’t get outside feed-back: That’s even more helpful (because others don’t have the myopia of Self to interfere with critical evaluation).

Exception:

When the feed-back tells you more about the other lawyer’s ego than about your performance. Which only happens when you did a very good job. You’ll figure it out real quick and learn to avoid that lawyer.

Example:

There’s a combination of two laws that are so obscure and convoluted that, in California, it’s not malpractice for a specialist in that field of law not to understand them. There’s a California Appellate Court case that says so. I’ll tell you that they’re called the Rule Against Perpetuities, but I’m not going to spend the rest of this book trying to explain – or even trying to remember – what they mean.

When I was just a lowly law clerk, worrying about just getting past the Bar exam, one of the lawyers I clerked for handed me a new case that was an obvious loser.

After struggling over it for a couple of days, I thought I’d spotted an argument based on those two obscure laws.

Unsure of myself, I called my girlfriend at the time (who was also preparing for the Bar). Because she was the only person (other than our real property professor) whom I’d ever known who actually understood the Rule(s).

The family trust involved in this case had been ruled on over a period of 40 years, by two Superior Court judges. And the Rule Against Perpetuities had never even been mentioned. So who was I to think I could spot what they both, and all the lawyers involved with the trust over all those years, had missed?

Well, my ex-girlfriend listened, then agreed I’d spotted a Perpetuities argument for our client.

I went to work on it and got the papers typed.

Here I’ll only say I was so jazzed that I went to share my exuberance with another law clerk in the suite. He listened, nodded, said nothing.

The next day, he came up to me and announced I’d have spotted that Perpetuities issue. The one that two judges and dozens of lawyers had missed for over 40 years! The one my ex-girlfriend had had to validate because it was so unlikely to be there!

Guess how many times I asked his advice on anything after that.

But, even when there’s no-one there to give you feedback, give it to yourself.

Sure, every once in a thousand times, you’ll be able to truthfully say that there was nothing you could have done better. That judge just hated your client, or that client obviously wasn’t interested in hiring a lawyer.

But these times are a lot rarer than most of us like to admit.

Which leads us to the next rule.

The Second Most Important Rule in this Book: Don’t Get Emotionally Involved Doesn’t Mean What Many Lawyers Think it Means

You will be told many times in the course of your career, Don’t get emotionally involved.

And a lot of lawyers – especially the younger ones – truly (but mistakenly) believe that it means Don’t care.

Think of the logic of that. Imagine telling your mechanic or your doctor I want you to do a good job. But I don’t want you to care. About me. Or my problem. Or even about doing a good job.

Doctors and psychologists are taught not to become too friendly with their patients, and none of them gets the idea that that means Don’t care about them. How can they do their job if they don’t care about their patients?

Where do so many lawyers get this impression? I don’t know. If you figure it out, let me know.

For now, just read the next two rules.

But Know the Limits: Avoid the Galahad Syndrome

The only limit on caring about your clients is avoiding the Galahad syndrome.

I’ve seen this most often in two kinds of specialties.

1. Male lawyers that represent women in divorces sometimes think they can fix all the client’s problems in that, one, divorce. Imagine: He’s going to single-handedly see to it that she doesn’t marry a fourth alcoholic wife-beater, or have that fifth out-of-wedlock child. That the high school drop-out gets herself a successful career so she won’t have to rely on that deadbeat that’s skipped the country. That her wastrel teenager stops shooting up heroin.

2. Many tenant defense lawyers in evictions try to save all the poor, huddled, down-trodden masses, in every single case. Even though most of their clients simply didn’t have the rent money. Which is NOT a defense. Even when I show them that the money went into drugs.

Example:

I got hired to evict two apartments of relatives in one building and a local legal aid clinic, which represents only the indigent, stepped in to defend them from this trumped-up, outrageous action. Well, my client was evicting them because he’d gotten a letter from the Los Angeles City Attorney telling him that, if he didn’t evict them, for dealing drugs, eventually the city would take the building away from him.

So I showed up in Court with a very pretty young L. A. P. D. cop, IN UNIFORM (because she was young and cute, so her usual undercover street clothes and tennis shoes would NOT have impressed anyone), and carrying her three weeks of videotapes showing these tenants dealing drugs out of both units.

Was the lawyer’s face red? More to the point, did they agree to move out?

Remember this when you read about Sam in The Client That Lies to You. Sam’s a perfectly competent lawyer – with TONS of tenant defense experience – who now refuses to represent tenants. Tenants that NEED his services. He does NOT refuse to defend them because too many of them lied to him. He refuses to defend them because he believed too many of their lies.

Example:

I was approached by two screenwriters that claimed a recent open-and-shut flop had been stolen from their script.

I listened, took notes, pointed out the problems, then quoted them my fees.

They said they’d expected me to take the case on, on a contingency basis (solely a percentage of what I’d collect for them).

They appealed to our common Latino heritage. They asked Don’t you think there’s an important principle involved here?

I pointed out that I had tried to save the world, back in the 1960’s and ‘70’s. Well, we failed.

I was not going to take on two of the richest movie producers in Hollywood, over a movie that actually lost money, especially since these guys had registered their script with the Writers Guild seven years ago (which has a policy of throwing away scripts after five years), instead of copyrighting it (which lasts forever), without getting paid for my time.

Nowadays, I said I save the world one client at a time. And, I normally charge for my time to do it.

Don’t Get Emotionally Involved Really Means: Keep Your Ego out of the Way

What it means in the bigger picture is Don’t let your emotions interfere with your better judgment.

Sure you can care too much, but don’t delude yourself; letting your emotions interfere with your job is less often a problem if you care too much about the poor client, and more often if you care too much about how you come across: if it’s your ego that gets in the way.

This book is full of examples of HOW this happens.

Lastly, if you can’t care about the clients (and some are damned hard to care for), at least care about winning, or about doing a good job!

That’s how, given my Leftist past, I got through four years of representing exclusively landlords. And, how I learned much that’s in this book. By caring, if nothing else for the moment, about winning!

You can’t do your best work if you don’t care about something!

Instead, there are many lawyers running around, trying their damnedest to not get emotionally involved in the client’s case – because that’s what they think they were taught – while letting their egos run rampant.

And, that makes them DOUBLY incompetent.

One of the finest lawyers I know – and a dear friend – has a HUGE ego. I actually worried when he was starting out about his being able to control it. And his ego is all wrapped up in his truly superior brain.

So you can imagine my relief when he was just starting out and we were chatting and he told me how he’d played dumb with Opposing Counsel in a case of his. For tactical reasons.

That was when I knew he really would become all the lawyer he was capable of. And he has.

Once you learn to keep your ego out of the way (which isn’t always so easy), not only will you be better able to keep your job in perspective, you’ll also be better able to evaluate your performance truthfully.

Which is what it takes to be able to practice The First Rule properly.

I’m Not Here to Make You Happy; I’m Here to Make You Win.

It’s very seductive for your client (as it is for you) to take specific actions, or make specific decisions, say specific things, just because it feels so good to do so: to show him!, or to get it off your chest.

The best example is sending off a letter in the heat of the moment. So you can regret it fully in the morning. After you’ve slept on it.

Save it. Stow it. Winning is when you can relax and be happy.

I have a client, an intelligent and experienced guy (let’s call him Rick) that took me a long time to figure out. When I finally did, I said to him If you had the choice, on the one hand, of playing hardball AND bending all the Court’s rules, AND LOSING, or, on the other hand, of being pleasant and professional, AND following all the rules, AND WINNING, you’d take the former. Because for you it’s not about winning; it’s all about playing hardball and taking chances.

I have to watch him very closely, to try to win despite his best efforts to sabotage his cases. In order to get the joy of playing hardball and thumbing his nose at the judge, just for the fun of it.

But I keep Beethoven’s Ode to Joy cued up on the boom box over my desk.

It’s ready whenever we want to celebrate. AFTER we win the whole case, not after we get it off our chests.

That’s when nothing but Ode to Joy will do.

Stop Worrying. That’s My Job.

I have clients that call me four times a day, worrying over some big or little aspect of their case.

I have one client as I’m writing this that’ll ask me the same question three times! In the same five-minute phone call!

Part of your job, as their lawyer, is reassuring them of your competence, and your control of their case, so they can go home and get a good night’s sleep. Comfortable in the knowledge that they’re in good hands.

I used to get positively abused by an associate of mine for being negative and my answer was that I wasn’t going to sugar-coat the client’s odds, and make promises I couldn’t keep, then just shrug my shoulders when we lose. As he did daily.

BUT it’s important to be honest with them without being a Cassandra. Unless it’s warranted, in which case,