Trial Practice Series
Panelists: John W. Allured James J. Brosnahan Elizabeth Cabraser Max L. Gillam Reiko Hasuike Susan Iliston Clayton R. Janssen Raoul Kennedy Dennis E. Kinnaird Hon. Charles A. Legge Jan Neilsen Little
Hon. William A. Masterson Thomas J. McDermott, Jr. Robert A. Meyer Donn P. Pickett Ronald Rus Hon. Barry Russell Hon. William W. Schwarzer Leonard B. Simon Hon. Alicemarie H. Stotler Stephen E. Taylor Hon. John K. Trotter
EDUCATION OF THE BAR· BERKELEY,CALIFORNIA
Advocacy and Management In Complex Litigation: The FirstThirty Days
Thomas J. McDermott, Jr., with Donn P. Pickett and Elizabeth J. Cabraser
TABLE OF CONTENTS
INITIAL CLIENT CONTACT
Establishing and Delegating Responsibility for Ongoing Client Contacts and Relations Necessity of Establishing Rapport and Access to Information and Documents Location of Key Employees and Documents
C. D. E. F. G. II.
View of Physical Retention Billing Letter
Practices Fee Agreements
BUDGET A. B.
FOR LITIGATION of Litigation Budget Budgeting . Evaluation a "True"
III. CONFLICTS A. B. C. IMMEDIATE
EVALUATION of Conflicting
Difficulties in Completing conflicts Evaluation Methods of Conflicts Checks
STEPS IMMEDIATE STEPS AND INVESTIGATION FACTS . . . . . . . . . . A. B. C. D. E. Document Privilege Preservation Preservation of Facts of Law OF LAW AND . . . . . .
Initial Investigation Initial Investigation Coverage 3
of a Computer
and the "NICENESS •
RULES" 58 COUNSEL
INITIAL CONTACT WITH OPPOSING A.
The initial contact with opposing counsel sets the tone for the entire litigation. It can mean the difference between courteous ongoing relations, or an enduring enmity which frustrates the legitimate goals of both sides. The initial contact should be civil, firm and forthright The defendant's perspective: and how to request reasonable extensions for pleading and discovery why, when,
The plaintiff's perspective: why, when, and how to grant reasonable extensions without getting the case off track
III. ONGOING CONTACTS WITH OPPOSING COUNSEL: INCORPORATING "THE NICENESS RULES" OF THE APPLICABLE JURISDICTION IV. HOW TO BE "NICE" . • A. Reading and Interpreting Local Guidelines, the Manual for Complex Litigation 2d, and Utilizing Common Sense Institutionalizing Effective "Niceness" as Firm Policy Tolling Agreements Stipulations and Other
INITIAL CLIENT CONTACT
and Delegating and Relations
It is very important to earn the confidence personnel,
of a client's
so that a full and candid account of pertinent quickly.
facts may be obtained
of Key Employees
Study client filing and data processing identify personnel materials. data is a
able to access them for relevant of computerized adversary client may
Note: The availability two-way street. Your your
the court to require
to make is
runs of relevant data where the only alternative a laborious examination of the original
Arrange for preservation of routine document
and suspension Even is a
programs. order, there
Items to include in a retention letter:
otherwise the agreed basis of fee calculation. In a lengthy, complex case, it is desirable to include a provision for increases in billing rates in future years or a method by which such increases are to be announced or
Identity of attorneys who will work on the matter or an agreed method by which attorneys will be selected. In cases which are expected
to last for some time, it is desirable to include a provision for subsequent changes in staffing.
principally Just as in
responsible for directing counsel. the client has a legitimate
knowing who will be handling its case, it is often 'helpful to counsel if it is made clear at the outset which members of the client s
frequency with which bills are to be rendered, the form of the bills (i.e -the amount of
detail to be included), which
the time period within and the interest bills.
bills are to be paid, on overdue
rate to be charged
provide done who the
descriptions lawyers In a
and paralegals complex case,
rendered need to
It is best to do so and complexity to forget
on a monthly basis, since the volume of the work often cause the
most of the tasks performed.
the broad scope of the work will often cause amounts of fees to accrue quickly, disagreement leading
if there has been any misunderstanding
as to the nature of the assignment.
consideration: bills with become
in a large, complex daily entries by
to comprehend, Consider
in a loss of the "big picture."
detailed bills with a cover letter or describing
fees, of the
recovery" standard for fee awards in class actions. In re Activision Securities Litigation, 723 F.Supp. 1373 (N.D. Cal. 1989)· (Setting 30% of Johnson. 268 (9th Alston Cir.
recovery Hunt v. (25%
"benchmark"); Graulty, 886
Advancing and Costs on the Client's Behalf
The plaintiff's lawyer in complex litigation, such as a securities or consumer fraud class action, must often make an initial commitment to advance the out-of-pocket costs of the litigation on the clients' behalf. Defrauded investors and consumers
typically simply do not have the wherewi thaI to invest in complex litigation, or may have, on an individual basis, lost sums which do not justify the costly pursuit of civil relief. circumstances, counsel must Under these at the
outset, whether she is ready, willing, and able to advance costs which may range in the hundreds of thousands of dollars. cutting takes on Here, the concept, of cost particular urgency. The
association of co-counsel willing to share these costs is a conunon solution: indeed, much complex
litigation is prosecuted by a formal or informal
Lona Island Lighting Co., 710 F.Supp. 1407, 1413-14
BUDGET FOR LITIGATION
A. Purposes of Litigation Budget
Encourages detailed specific goal.
preparation statement of
litigation to of be
path, useful moves.
of specific litigation helpful when quick
(This is particularly must be made in the
course of pretrial
to Litigation for all 15
Budgeting tasks during specified time
· paying fees based on hourly rates on a regular basis will impact every aspect of the plaintiffs' litigation plan, from the number of attorneys and support staff involved, to the type of document organization representation oriented which is utilized. a pragmatic litigation Contingent and result and
Here it is well to remember
that the "frills" for which a corporate client may readily pay, such as computerized litigation
support, paralegals and investigators, and other enhanced staffing may be beyond the budget of the plaintiff or his counsel. On the plaintiff's side,
the emphasis must be on lean and result oriented staffing and support. This is just as well:
computerized litigation support cannot develop, on its own, the theory of the casp-,or an intelligent analysis of the facts it stores. The plaintiff's free basic the federal of Civil
lawyer must remember to utilize the tools of complex these are litigation. the Federal In
Procedure themselves, and the Manual for Complex Litigation2d, guidelines California's Practice and such as as well the as local rules District and of
provisions are the means to streamline the process of discovery, enhance
1MMEDIATE.STEPS I. IMMEDIATE STEPS AND INVESTIGATION OF LAW AND FACTS
state of the attorney-client privileges
Insurance Coverage Issues
Review of policies
To Tender or not to tender
The Non-plan Litigation Plan
To do lists
of time might although
few documents latter might
and limited be far more
than the former.
The Time Problems.
How long will the case last?
considered. is settled;
Most however, a class any
it is not settled action grounded class until action a
For example, fraud
in securities that matter)
(or almost be
upon which to base a settlement
which can for the for
be determined class members. Complex
by the court to be reasonable See Fed.R.Civ.P. 2d § 30.4.
it may be a long time between resolution,
case and ultimate
how much of that time work and how much
will be spent in active pretrial simply waiting for a docket
date to open?
Iv1anycases normal is
A criminal by be
anti-trust suits by
prosecution for damages
followed lost, may
are not beyond subpoena range and often go right into the jury room.
The building of a factual record from documents is a job ideally suited to the paralegal. No training
as a lawyer is necessary to grasp the factual side of a case. Thus, the intelligent paralegal can
review documents with about the same perception as a lawyer and at a far lower cost to the client.
Of . course, good paralegals can be used at just about every stage of the litigation process with the exception of actually appearing in court or at a deposition. However, some of the more likely
uses in complex litigation include, in addition to the review of the documents, management the of abstracting evidence, of the
operation of computer retrieval systems, witness and document management at trial, and coordinator and documenter of staff meetings.
Establishing Costs Parameters and Forming a Litigation Team: The Plaintiff's Perspective
St~ffing and budget decisions are determinative of the economic feasibility of prosecuting a complex case. By definition,
supervising to the
attorney dangers of
delegation: as a task
and the dilution to personnel
of meaning with
ever-decreasing or ability.
levels of experience, II. THE STAFF-BOOK
of a "staff"
is to provide to The in
each member of the legal team with a ready reference everything existence orienting that of is going book on in a complex case. helpful
of the team.
In any complex
utilizing ten or more lawyers and paralegals
to last two or more years, the staff book is a necessity.
of a Staff Book.
inclusion in a staff book. are suggestions or less
It should be noted that these might dictate pleadings are more not
only and imagination For example,
included too bulky
in the following to be included
list because in a staff depending
they are usually book, but certain
pleadings might be necessary case.
on the individual
can be set aside for minutes of completed staff meetings.
util~zed in the case, full instructions should be set forth in the staff book so that any authorized member of the legal team may have a ready reference to computer procedures.
involving corporations, it is often handy to keep an updated list of all officers and directors of the corporation over the years which are relevant to the issues in this case.
In this section, all files being
maintained should be listed, together with their location. This will serve not only as a ready
reference to find files, but also as a reference to issues in the case (since evidence files are
usually maintained by issue), and as a guide to directing newly discovered documents to the
approach to evidence litigation, "material" are to
files is, at the commencement the case into various,
of the broad
After the material then the client's which
areas of inquiry files should be
and each document
to a material If a
issue should be filed within
the file so labeled.
document reflects on several material issues, it probably should Document been be duplicated and placed in each file (see have in the
Files below). and
After all of the documents they a may then
be placed view of
evidence which your client has generated each material issue in the litigation.
with respect to It is usually rather than
best to frame "material" legal, issues.
issues as factual,
files may be utilized
to hold areas of
lengthy documents which reflect on many material the case. lengthy Examples might be SEe Registration contractual materials. agreements, or
Since these documents
reflect on it is not
many issues likely to be placed in contention, profitable each
to duplicate them many times and place them in file. However, consideration contained should be
given to marking files and placing evidence files.
up documents appropriate
in the document into the
DOCUMENT MARSHALLING AND ORGANIZATION
There are essentially three steps or stages in the document marshalling and organization process.
Screening ~ Screening is the actual physical process of reviewing the client's or other files to collect relevant documents.
Organizing - The documents collected in the screening according process to some must then be organized so that
documents may be readily retrieved.
documents then be
determine their evidentiary significance or, as is often the to case, to determine requests. their It
should be noted that the process of organizing the documents is often also a step in the analytical organizing source. process, documents by ~, subject physically matter or
The above steps must often be done simultaneously,
will usually defer a large-scale files until a significant as the filing of actual
review of its
impetus arises, such litigation.
Typically, process either against filing given is in
the trigger for the document the commencement to a of
litigation, filed of the Again, review of a
your client of an action the expense
or in preparation by your of the client. document
process, an early
you should consider settlement before
the prospects commencing files.
review of your client's
Who Should Screen
the of of
document documents documents
screening, to be
to be collected.
definition by of
initial "hands on" involvement since the actual inspection
the client's documents of the review, involved both and
will redefine as as to to the
significant type of
to be captured.
Once the scope of the document
This will enable this attorney
to better handle the myriad of decisions which must constantly be made in the
document review process.
Consider using your
client s personnel
certain types of documeI1t screening. usually less expensive for the
This is client.
However, also consider the problem of divided loyalties if the client IS· personnel are not assigned full time to the document screening team. A good solution is to have the client
hire paralegals who are assigned exclusively to the litigation team.
Which Documents Should Be Reviewed and Collected?
Defining the types of documents which should be reviewed and the types which should be
collected is really a two-step procedure:
First it is necessary
to identify the
document universe, i.e., what types of documents have been generated by the
client and which of those documents are relevant Often it to is the present to litigation. limit the
For example, in an
cost of the document of thoroughness of documents areas
desired, to be
i.e., the more types and in the the more issue
subject analysis, the must review because
consuming you to time
initial also the
document consider client's
review. the cost a
However, of having
files a degree
of too great review.
in the initial
How Should the Documents
You should prioritize
files and For
review the most significant example, files legal of the correspondence management will will
files first. and and the be
memoranda client's the most early of the
as to the factual background
document files were
process, whom and
i.e., which on 39 what
interrelationship, (author, type matter or of
bibliographic etc.), subject The it a
advantage of allows manual easier or
such organization retrieval without
that use of
disadvantages are that rational organization requires careful identification of relevant groupings, which may later prove less than useful, and such organization ~, a leads to
which discusses ten subject areas and must be filed in each subject area grouping.
merely collected and numbered. rely on your indexing system
You must then to retrieve
system if you have a computer indexing system, ~ince it eliminates the time and consuming tends to
rational organization reduce duplication.
Whichever system you select, you should establish a master file which will consist of one complete, clean, centrally
in the master red ink. a
file with a distinctive This allows
you to instantly
from a photocopy
important system is
system which will allow ready retrieval documents. The details of
of specific indexing
systems will be discussed
of two types:
- Documents to
must often be reviewed whether document they are
to a particular
whether they contain information incorporated interrogatory. in a response to
which must be a particular
to determine or to the
the factual background prepare
of the litigation
for your own discovery, of witnesses
III. COMPUTER SUPPORT SYSTEMS
To Computerize or Not to Computerize
Once relevant documents have been collected
organized, it is necessary to create a system to index those documents so that specific documents can be readily retrieved.
Manual Filing Systems - The documents can be organized sequence. according to a specific filing
For example, the documents might be However, if
arranged in chronological order.
you wanted to find all documents authored
particular person or all documents relating to a specific issue in such a system, you would have to review the entire chronological file. Therefore, it would be desirable also to order the documents by author, or other If is
bibliographic information, and by issue. the number of documents involved
significant, the creation of such duplicative filing sequences will prove burdensome.
Card Index Systems - The documents can be left
considered for selection.
Speed - The document search will be done many times faster than a manual search.
Cost - Once the system is established computer document search is much
expensive than the same search done using attorneys or paralegals and a manual
Full Text - The complete text of each document is fed into system the is computer then and stored. for The
words contained ("key mention system up-front documents subjective coding words") ,
in the text of the documents ~, The it all documents of which this
"pricing." are that of
advantages the large
tremendous number of the the the are
additionally, making can
avoids in in
miscoding of documents. numerous.
The cost of keying a large number 47
criteria is involved the coders must be more sophisticated about the case and they must spend more time with the documents, both of which significantly increase costs.
Hybrid Systems - It is possible to combine features of both a full text and an abstract system. In such a "hybrid" system the
bibliographic information is still coded, but important captured sections in of the document are
Additionally , the for attorney or
capacity is often provided
paralegal summaries of the document, which can also be searched for key words.
Selecting a System Vendor
Normally, you will want to contract with an outside litigation support system vendor ("vendor") to
create your computer index system.
However, do not
overlook the possibility of creating the system in-house· using personnel, your client's if the data processing has a
se~eral disadvantages to this approach though:
In selecting the following
a vendor, approach:
of several yourself
and generally capabilities.
specific and ask
statement that all
their proposals probably will
on your statement. not know be, what make
Since you your your final best
requirements guess, ~, of 3 pages
100,000 documents per document information. the
with an average coding only of
The purpose cost
is to make
by the vendors
Ask for cost proposals of requirements and
based on your statement compare the cost
Ask for explanations
for any high
or low cost quotes.
be assigned project you
to your manager.
project, You must you
particularly realize are
general size of those matters and the general stage of litigation. Ask also how many new
customers the vendor has acquired in the last year or two.
Implementing a Computer Index System
System Design - Once you have selected a vendor, you will immediately begin the design phase of the implementation process. This is the most important
phase of that process, since it is at this phase that the trial attorney defines what he wants from the system. The vendor will assign one or more
people to work with the attorney to design the system, but you The must best not abdicate
your work you then
backwards, i.e., determine what expect to need at the time of
information trial and
determine what type of system will capture that information at the lowest cost.
Deveioping Coding Criteria - The key decisions in the system design phase will probably relate to the selection of coding criteria, i.e., the
determination of what information will be encoded from each document. Several observations should be
made concerning this process:
more time to encode the chances
each document errors.
of coding increase
This will significantly the coding process.
the cost of
Do not overlook in the system. as deposition capacity
the future use of documents If they are likely to be used the
or trial exhibits,
such use on your system, for months or
even though years.
it might not occur
the future document
which you are going create
might be performing.
to review the documents a code to reflect the attorney-client work-product
which documents privilege
or the are
going to review the documents document capacity analysis memoranda,
to prepare create the of
to enter short attorney and their relevance.
- The coding of a large number be the most expensive index system.
will probably creation
item in the Therefore,
of a computer
it should be closely
index by making an on-line search, i.e., a direct inquiry of the computer index from a remote
The safest use of the computer is to all
search it for bibliographic information, ~, documents authored by X and sent to y. true because the bibliographic
This is is
easier to code accurately.
If you are searching
the system for subjective information like subject matter, it is safer to use the most general subject matter code and use paralegals of to review for the more
specific subject areas.
attorney should also rely on hard copy indices of the documents on the system. This will drastically
reduce the cost of using the computer index, since ·on-line search time tends to be expensive. These
"off-line" -se~rches are generally of two types:
Routine Digest - The vendor should produce digests of all documents on the system broken down by selected criteria. should be a listing order, of
For example, there all documents of in all
documents. by author and chronological order within the author breakdown, etc.
sets the tone the difference
for the entire between enmi ty sides.
It can mean relations, legitimate should
courteous which The
enduring of firm both and
The plaintiff's reasonable
why, when, and how to grant
without getting the case off track
III. ONGOING CONTACTS WITH OPPOSING COUNSEL: INCORPORATING "THE NICENESS RULES" OF THE APPLICABLE JURISDICTION Ongoing a mode contacts with opposing and candor: counsel this must continue is essential with court. in to
establishing counsel, procedural
and maintaining ultimately,
credibility with the
opposing Some prepare attacks counsel.
or discovery disputes are inevitable:
to win these on their merits by avoiding personal or attempts to "slip one past" opposing
Remember that there is a community of complex litigators: you will be meeting your opposing counsel again. These
are sel f-evident truisms, but they constitute of all formalized "niceness rules".
investigate the claims, or an atmosphere conducive to settlement. Additionally , virtually every subject of
judicial determination can also be the subject of a stipulation. litigating This avoids and the can cost be and delay of
effectively as a tool to streamline the litigation, and to expedite the hearing and determination of those issues which are clearly in dispute. is particularly effective This aspect of "niceness" in earning trust and
credibility with the court.
The court will appreciate
counsel who lighten its workload and simplify its task by the affirmative use of stipulations which clear away procedural underbrush, avoid or resolve discovery and scheduling disputes, and allow the merits of the
litigation to be reached.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
GUIDELINES FOR DISCOVERY MOTION PRACTICE AND TRIAL
GUIDELINES These guidelines are furnished for the convenience of counsel and the Co.urt to promote the just, speedy and economical disposition of cases. They should be accepted in that spirit. GENERAL HATTERS Court in civil litigation
Attorneys appearing in the District must observe three sets of rules: The Federal The District Rules of Civil
Procedure, and judge
The rules and practices of the particular to whom the case is assigned.
You can become familiar with the rules and practices of the judge assigned to your case in three ways: (1) By obtaining from that judge's courtroom deputy copies of the standing orders used by that judge; and By inquiring of the deputy (not the law clerks) how that judge wants things done. By consulting the Courtroom Interview Project. matters require Proceedings
1. Removal from the state court. Before filing a notice of removal from state to federal court, consider the jurisdictional facts carefully in light of 28 U.S.C. § 1441 and other applicable law: Do not attempt to remove unless you are satisfied that good grounds exist. Note that the existence of a federal normally create federal jurisdiction. law defense does not
2. Related Cases (L.R. 205-2). If you have a case that you believe may be related to another case on file in the court (whether closed or not),· you must promptly file a notice of related case. The judge with the lower numbered case will decide whether to relate the cases, depending on whether assignment to a single judge will be conducive to economy or efficiency. 3. Status Conferences (L.R. 235-3; Fed. R. civ. P. 16). Judges generally hold a status conference in a case within three months of filing of the complaint. The purpose of this conference is to formulate and narrow the issues; to schedule a discovery cutoff, pretrial conference and trial date and to explore the
restrictions on the scope of discovery stated in Rule 26 (b) (1) and the good faith obligations implicit in Rul~ 26 (g). Direct and informal communication between counsel 1S encouraged to facilitate discovery and resolve disputes. 2. Timeliness. The time limits specified in the rules and applicable orders must be observed. If additional time is needed, a continuance must be sought in advance by stipulation and order. 3. Discovery cut-Off. Discovery cut-off dates in orders are the last date for filing discovery responses, unless otherwise specified. L.R. 230-6. To be timely, therefore, discovery requests must be filed sufficiently in advance of the deadline for responses to be made. The court will normally set cut-off dates only after consultation with counsel. Once they are set, however, they will be changed only for good cause shown. 4. Supplementing Discovery Responses. Rule 26 (e) requires that an earlier discovery response be supplemented if it was incorrect or is no longer true or to the extent it relates to potential expert or other witnesses. Failure to comply may result in exclusion of evidence or witnesses at trial. 5. Depositions
a. Scheduling. Barring extraordinary circumstances, opposing counsel should be consulted and the convenience of counsel, witnesses and parties accommodated before a deposition is noticed. When a deposition has been noticed by the opponent in the reasonably near future, you should ordinarily not notice one in advance of or concurrent with that deposition without counsel's consent. Note that it is often less expensive to bring the witness to the deposition (and for the parties to share the expense) than for the lawyers to travel. b. Stipulations. When counsel enter into stipUlations at the beginning of a deposition, the terms of the stipUlation should be fully stated on the record of the deposition. c. Questioning. Questions should be brief, clear and simple. Rarely should a question exceed ten words. Each question should deal with only a single point. Argumentative questions are out of order. The purpose of a deposition is not to harass or intimidate, but simply to make a clear and unambiguous record of what that witness's testimony would be at trial. d. Documents. Normally, except in the case of impeachment, a witness should be shown a document before being questioned about it. e. Objections. Under Rule 30 (c), objections to the manner of taking the deposition, to the evidence or to the conduct
c. Preambles and Definitions. Avoid lengthy preambles and complex and "all-inclusive" definitions. d. Responses. Rule 33 (a) requires the respondent to produce whatever information is available (but only what is available), even if other information is lacking or an objection is made. When in doubt about the meaning of an interrogatory, give it a reasonable interpretation (which may be specified in the response) and answer it so· as to give rather than deny information. Generally ,the responding party is required to produce information only in the form in which it is maintained. If an answer is made by reference to a document, attach it or identify it and make it available for inspection. (See Rule 33 (c) and! 7, below.) Generalized cross-references, such as to a deposition, are no~ an a~ceptable answer. e. Objections. Unless the objection is based on pr:ivilege or burdensomeness, or a motion for protective order is made, the information requested must be supplied to the extent available, even if subject to objection. Counsel's signature on the answer constitutes a certification of compliance with the requirements of.Rule 26 (g).
·f. Privilege. A claim of privilege must be supported by a statement of particulars sufficient to enable the court to assess its validity. (See L.R. 230-5.) In the case of a document, such a statement should specify the privilege relied on and include the.date, title, description, subject and purpose of the document; the name and position of the author and the addresses of other recipients. In the case of a communication, the statement should include the date, place, subject and purpose of the communication and the names and positions of all persons present.
Requests for Production of Inspection a. Informal Requests. See! 6.a. above.
b. Number and Scope of Requests. Requests should specify with particularity the title and description of documents or records requested. Information needed for specification can often be obtained by . informal discovery, or by depositions or intertogatories if necessary. Argumentative or catchall requests, such as "all documents which support your claim," are objectionable. The certification requirement of Rule 26 (g) applies. c. Responses. Materials should be produced either with labels identifying .. t.he specific requ~sts to which they respond or in the manner in whiCh they are kept in the ordinary course of business. Burying docUments, swamping one's opponent with vast numbers of irrelevant documents and similar procedures do not meet
MOTION PRACTICE 1. General. Do not file a motion without first exploring with opposing counsel the possibility of resolving the dispute by stipulation. Many motions now being filed could be avoided.
2. Motion to Dismiss or for Summary Judgment. Motions to dismiss for failure to state a claim under Rule 12 (b) (6) must be made solely on the pleading~. If matter outside the pleadings is referred to, the motion 1S treated as a motion for summary judgment. Fed. R. civ. P. 56. Do not file a summary judgment motion unless you are satisfied that a material issue can be resolved without reference to disputable evidentiary facts. A motion devoted to arguing evidentiary facts is likely to lose. If you think your opponent has admitted the material facts, make it of record by using requests for admission.
3. Supportina Memoranda and Other guidelines:
Be helpful: State the grounds for the motion and the issues ~learly at the outset, marshal the supporting facts and law and distinguish opposing authority. Check all citations, include jump citations, and verify the continuing validity of decisions relied on. Keep it short: Rarely if ever should it be necessary to exceed the 25-page limit under L.R. 220-4. Approval for filing a brief in excess of 25 pages will only be granted when deemed necessary by the judge, and without it the brief will not be filed. Avoid voluminous supporting documentation; the larger the motion, the less its chance for success. Be candid: Address directly the hard issues that must be decided; do not sweep them under the rug. cite adverse authority and explain why it does not support a ruling against you. Don't gamble on the judge not finding it. Don't mislead the court, either as to the facts or the law; once your credibility is in question, it is difficult to restore it. See California Rules of Professional Conduct 5-200. Avoid invective and vituperation: Argument advances your case far less than exposition and analysis. Adjectives and adverbs, other than those having independent legal significance, do not make a brief persuasive; avoid them. Submit a proposed order, retaining the original. Submit an extra copy of all papers for use by the judge's chambers.
':":"j" b. Ask brief, direct and simply stated questions. Cover o:n~point at a time. Do not ask a witness "do you recall " unless the fact of his recollection is material. Use leading questions for background material. Write out the examination or have-at least a complete outline.
c. Cross-examination similarlY should consist of brief, simple and clearly stated questions. It is helpful to write out questions in advance but do not read them. Cross-examination should not be a restatement of the direct examination nor should it be used for discovery or to argue with the witness. d. without leave of court, only one lawyer for each party may examine anyone witness, and only one may make objections during the testimony of any witness. 4. Using Depositions
a. The deposition of an adverse party may be used for any purpose. It is unnec;:essary ask a witnes$ if he "recalls" to it or otherwise to lay a foundation. Simply identify the deposition and page and line numbers and read the relevant portion. Opposing counsel may then immediately ask to read such additional testimony as is necessary to complete the context. b. The deposition of a witness not a party may be used for impeachment or if the witness has been shown to be unavailable. For impeachment, allow the witness to read to himself the designated portion first, ask simply if he gave that testimony, and then read it. Opposing counsel may immediately read additional testimony necessary to complete the context. c. A deposition may be used to refresh a witness's recollection by showing it to him, or, just as any other document, as a basis for relevant questions. d. In bench trials, do not offer depositions wholesale. Unless all of the testimony is important, copy the rel~~ant pages only, staple the extracts from each deposition, and Offer each as an exhibit. e. Note: It is the responsibility of counsel anticipating use of a deposition at trial to check in advance of trial that it has been made available to the witness for signature and to have the original available in court. 5. Obiections "
a. To make an objection, rise, say "objection" and briefly state the legal ground (e.g. "hearsay," "privilege," "irrelevant") .
Use of Prepared Direct Testimony
In bench trials when the direct testimony of witnesses has previously been submitted in narrative wri.ttenstate~ent form, the proponent of the witness must have the w1tness ava1lable for cross-examination unless cross-examination has been waived. The following procedure should be followed: When the witness is called to the stand, ask the witness as an to identify the statement, which should be premarked exhibit, as his testimony and to state that it is true and correct. Then offer the exhibit. 9. Conduct of Trial
a. The court expects counsel and the witnesses to be present and ready to proceed promptly at the appointed hour. A witness on the stand when a recess is taken should be back on the stand when the recess ends. b. Bench conferences should be minimized. Raise anticipated problems at the start or the end of the trial day or during a recess. c. Have a sufficient number of witnesses available in court to fill the time available. Running out of witnesses may be taken by the court as resting your case. d. Trials normally are conducted each day except on the day scheduled for the motion calendar. Do not assume that the court will recess on any of those days unless prior arrangements have been made with the court and counsel. e. Counsel are expected to cooperate with each other in the scheduling and production of witnesses. Witnesses may be taken out of order where necessary. Every effort should be made to avoid calling a witness twice (as an adverse witness and later as a party's witness). f. Counsel should be prepared each day to discuss with the court the next day's schedule of witnesses and exhibits.
a. When trial is to a jury, counsel should present the case so that the jury can follow it. witnesses should be instructed to speak clearly and in plain language. When documents play an important part, an enlargement or an overhead projector and screen should be used to display the exhibit while a witness testifies about it.
Los Angeles County Bar Association
Adopted by the Board of Trustees April, 1989
have so deteriorated that our profession nears a crisis-one that not only implicates how we deal with each other but threatens our usefulness to society. the ability of our clients to bear the cost of our work and the essential values that mark us as professionals. There have always been lawyers who have abused each other and the judicial system. but they seemed to be few in number. Now. some perceive. abusive conduct is gaining new adherents cloaked in the mantle of forceful advocacy. They proclaim that clients are best served by the intimidation of opponents.a relentless refusal to accommodate and the use of tactics that impose escalating expense on an adversary. Be difficult and the other side may cave. they think.. The Committee on Professionalism of the Los Anzeles Counrv~ Bar Association thinks otherwise. For us. ••... -. .. : filing needless interrogatories or oppressive document demands are not acceptable tactical. ploys just because they will divert the other side by requiring useless work. For us. the refusal to accommodate other counsel is not a sign of strength or determination but a simple act of unreasonableness likely to be revisited on the instigator. all to no productive end. For us. the idea that civility and candor stand in the way of desired results is in fact inconsistent with the achievement of long term goals. including successful results for our clients. Most lawyers impose high standards on themselves. They are courteous. candid. and accommodating toopponents. judges and witnesses-even when faced with less professional behavior by their adversaries. ·By meeting those high standards. lawyers do not sacrifice their clients' interests: they advance them. They do not com-
promise principles: they show a steady resolve to stand by them. Still. lawyers are said to be held in low esteem by the public-and sinking lower. Many see us as unpleasant people who put their own egos and monetary arnbition-, before the interests of clients or society. We know that is not a true picture of the profession as a whole. but growing incidents of questionable conduct make our case an increasingly hard one to make. If we are right. something must be done. As a modest first step. the Committee has prepared the following guidelines for lirigators. We do not expect every lawyer will agree with every guideline. They simply reflect our best effort at encouraging decency and courtesy in our professional lives without intruding unreasonably on each lawyer's choice of style or tactics, We have not come out against "hardball" as such nor do we advocate anything less than forceful. dedicated advocacy. But we think our profession will be a better one if the guidelines become the accepted norm. Nothing in the guidelines is intended to conflict WIth any court policies or rules which are. of course. paramount. The Committee on Professionalism of the Los Angeles County Bar Association: William W. Vaughn (Chain. Maxwell M. Blecher. Michael J. Bonesteel. John R. Cadarette.Jr .. Richard E. Drooyan. Charles R. Engtivh. Catherine B. Hazen. Rex S. Heinke. Clinton \-1. Hodzes. ~ C. Douglas Kranwinkle , James J. McCarthy. Gavin Miller. Margaret M. Morrow. Andrea S. Ordin. Ja:- Joel Plotkin. Hon. David M. Rothman. Hen. Pamela A. Rymer. Robert S. Schlitkin. Hon. Diane W~I~ Lee B. ne. Wenzel.
The Comrnince a~.:lr-.lhl\~h..·d~t·, Ih.lIll, the: hl.:aJ -rart It \\a' ,l!1\cn In fUmlUI~lIrt:! I" guidl!llI'~(," h~ Iht: "Prnp,,'cd Code or LIII~~llinn CI1f1dll l· w uh •. 1'1"" h~th.: Curnrnun-e on FCl.kr,1I Court- "f the ~''''':'~I,un<,f the Bar "'th.· Ci" IIf \c •.•. Yur], .:h",'cd h~ Jchr, K,,:I!i<1.1,1'1", c-,,\
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Copyright 1989 Los Angeles permission.
County Bar Association.
a. Depositions should be taken only where actually needed to ascertain facts or information or to perpetuate testimony. They should never be used as a means of harassment or to generate expense. b. In scheduling depositions. reasonable consideration should be given to accommodating schedules of opposing counsel and of the deponent. where it is possible to do so without prejudicing the client's rights. c. When a deposition is noticed by another party in the reasonably near future. counsel should ordinarily not notice another deposition for an earlier date without the agreement of opposing counsel. d. Counsel should not attempt to delay a deposition for dilatory purposes but only if necessary to meet real scheduling problems. e. Counsel should nOI inquire into a deponent's personal affairs or question a deponent's integrity where such inquiry is irrelevant to the subject mailer of the deposition. f. Counsel should refrain from repetiti ve or argumentative questions or those asked solely for purposes of harassment g. Counsel defending a deposition should limit objections to those that are well founded and necessary for the protection of a client's interest. Counsel should bear in mind that most objections are preserved and need be interposed only when the form of a question is defective or privileged information is sought. h. While a question is pending. counsel should not. through objections or otherwise. coach the deponent or suggest answers. i. Counsel should not direct a deponent to refuse to answer questions unless they seek privileged information or are manifestly irrelevant or calculated to harass. j. Counsel for all parties should refrain from self-serving speeches during depositions. k. Counsel should not engage in any conduct durinz a deposition that would not be allowed in the presence of a judicial officer.
6. Document Demands
a. Demands for production of documents -hould be limited to documents actually and reasonably believed to be needed for the prosecution or defense of an action and not made to harass or embarrass a party or witness or to impose an inordinate burden or expense in responding. b. Demands for document production should not be so broad as to encompass documents clearly not relevant (0 the subject matter of the case. c. In responding to document demands. counsel should not strain to interpret the request in an artificially restrictive manner in order to avoid disclosure. d. Documents should be withheld privilege only where appropriate. on the grounds of
e. Counsel should not produce documents in J disorganized or unintelligible fashion. or in a way calculated to hide or obscure the existence of particular documents. f. DOCument production should not be delayed to prevent opposing counsel from inspecting documents prior to scheduled depositions or for any other tactical reason. 7. Interrogatories a. Interrogatories should be used sparingly and never to harass or impose undue burden or expense on adversaries. b. Interrogatories should not be read by the recipient in an artificial manner designed to assure that answers are not truly responsive. c. Objections to interrogatories should be based on a good faith belief in their merit and not be made for the purpose of withholding relevant information. If an interrogatory is objectionable only in part. the unobjectionable portion should be answered. 8. Motion Practice a. Before filing a motion. counsel should engage in more than a mere pro forma discussion of its purpose In an effort to resol ve the issue. b. A lawyer should not force his or her udversary a motion and then not oppose it.
Rules Like White Elephants
(A HemillgtL'aynightmare after reading Litigatum Guidelines by the Los Angeles Coumy Bar Association)
read the niceness rules and they were good. Men (and some women, I am told) have slaved over the rules to make the world better. Fat chance. Lawyers are lawyers. a rotten lot, even in Paris. Doc told me that time we were up in Michigan killing caribou that lawyers were rotten. Doc was a lawyer. I could see by the squint in his eye and the snide grin that he knew. That's when I decided to become a lawyer. If Carstan had not introduced me to the Pemod at Harvard Law. it might have been fine. Perhaps the dean, well-lighted office of the corporate lawyer. Or the deep fresh earth of real estate law. But by the third year the Pernod had acted. my brain was gone, and alii wanted was to fight, to kill, to war. When I told this to the old gringo, I saw the look of fear come into his eyes. "You are a trial lawyer," .he said softly. On graduation I enlisted - the ABTl.., worst of the lot - and was posted to the heavy fighting in L.A. .' When we disembarked, the smoke . and haze that filled the air spoke." volurnesof the fighting, now and' past. I was immediately sent to the:' hottest spot, Central District, U.S;·:. Fed. Walking the halls, I saw the' scruffy glassy-eyed men' (and', women) who had been in it too long;',: too many defaults taken on the' twenty-first day, too many expletives, . hurled at opposing' counsel, too' many letters written only to create a Anon_ record. Civility could not exist here, should not exist. These men (and women) were the killers. Better to place them together; kill each other, be done with it. When Ilett Boston, Fr-mcis said, "You'll live a short life." "But happy," I replied, . And at first it was good. The clean swish of the papers as they went out the door to be served on Christmas Eve. The sharp jolt of m~ "No" as some poor bastard begged for an extension. •. The queer feeling of exaltation as I crafted a !act out of whole cloth . .But the sanctions. Command had promised us sanctions and soon we had them. We lobbed demands for sanctions into their midst interminably and they gave the same; Year after year after year the shelling grew. One landed outside Whitley's office, sanction demanded for failure to give 1947 telephone number of plaihtiff, unexploded .. but he went mad just the same, Yet there were times when the beauty ran clear. To slide the sword swiftly into a deposition witness, after' he .has been weaicened by innumerable bandolier pricks of.badgering irrelevant questions was sweet. The startled look on the trustee's face as he realizes the incision 1 have made when I state for the record: "You immovable beast, we sue your charitable foundation and you won't even tell us Whom the hell doles." It seems only yesterday that Faulkner and I had our mano a mane over the deposition table and I bested him. The damn niceness rules would bar it today. .
Faulkner had the temerity to hire on with a bastard that sued my biggest motion picture studio client over its Trademark. He noticed a 30(b)6 deposition of the corporation. When I appeared in the deposition room, I could see.the fear in their faces. "What the hell are you doing here with that lion!" "This is my client. He speaks Ior the corporation." "What does he know about Trademarks?" "He is the Trademark!" Leo let out a roar and they all jumped a foot. "What was that?" "That's the rest of the Trademark:' "How can he answer questions?" "One roar for 'Yes: two for 'No.' and three for 'irrelevant, immaterial and ambiguous.' " I could see the sweat forming on Faulkner's lip. "All right, let him sit here opposite the window." . 'My client does not face the sun. It reminds him of his home veld." "You rnean.we'Il all have to move our seats." "It would be advisable." Faulkner's note-taking hand was beginning to shake. I could see he was the coward I thought him to be. "I-I can't go on!" "Then I shall move to dismiss the Complaint for failure to complete discovery and request 525.000 in fees for my linn and two dead gazelles for my client." "Damn you! Some day the County Bar will make niceness rules and your ilk will die out." "1b hell with Fascist niceness rules' They will come and they will prevail. But some of us will die with head high and ball low and inside." Those were the days. Now it is over. The regiamenteros of the County Bar have begun their mop-up. Firing squads go day and night. The old amigos, Nick. Frederick, Henry, Manuei. all dead. What can be said? Codes of honor were my life. I believed in them. But it was . the code of steel, the steel ball of the IBM Selectric, smashing, smashing into paper, day and night, multiplied by millions untiI the paper crushed all in my way. Now, the young whelps over their Perriers build their code. It is fine, but God help them when the client wants blood. The old man will see. The young ones will come to him to taIIc long of the days before we said a farewell to arms.
(The. author desires to remain
anonymous due to fear of repnsals. Houever: we may reveal that he is a former Editor of this publication.)
Reprinted with permission of the Association of Business Trial Lawyers,
2 3 4 5
IN THE UNITED STATES FOR THE NORTHERN DISTRICT COURT
In Re ORACLE SECURITIES LITIGATION ) C-90-0931-VRW STIPULATION TOLLING FOR DISMISSAL
This Document DERIVATIVE Relates to: ACTIONS
) WITHOUT PREJUDICE AND
10 11 12 13 14 15 16 17
The Plaintiffs Arnold N. Silverman, respective follows: 1. named defendant Arnold N. Silverman in the Consolidated counsel
in the derivative
and defendant their
by and through hereby
the undersigned, stipulate
and agree as
will not be included Amended Derivative
as a Complaint
to be filed and served herein. 2. are dismissed, costs. 3. Any and all statutes claims against Arnold of limitations N. Silverman, against asserted applicable including, to but The derivative without claims against Arnold N. Silverman
with each party to bear its own
not limited to, the claims asserted 'Derivative Complaint defendants and the claims
him in the original against the named are
in the Consolidated
for a period of three
from March 29,
for Dismissal Without and Tolling Agreement
C. OLIVER BURT, III JAMES R. MALONE, JR. GREENFIELD & CHIMICLES 361 West Lancaster Avenue Haverford, Pennsylvania 19041 Telephone: (215) 649-3900
By: Attorneys for Derivative Plaintiffs
MICHAEL L. RUGEN HELLER, EHRMAN, WHITE & McAULIFFE 333 Bush Street San Francisco, California 94104 Telephone: (41 -6000
Attorney~ for Arnold
RUGEN N. Silverman
19 20 21 22
26 27 28
-3for Dismissal Without and Tolling Agreement