Court Procedure and Demeanor

Copyright: redrockerz / 123RF Stock Photo
Copyright: redrockerz / 123RF Stock Photo

Few things in the course of litigation can come back to bite you with the ferocity of a spoliation instruction. Even the threat of one can cause seasoned litigators to lose sleep and ponder the extent to which their case can be damaged, despite the months or years of hard work in building a defense. Worse yet, these fiascos tend to catch lawyers off-guard, as they seemingly come out of nowhere when opposing counsel inquires about the location of a certain document.

Up until a few years ago, there was a lack of clarity among the courts as to what type of culpability was required in order to warrant a spoliation instruction. Some courts went so far as to punish a defendant even when the destruction of evidence was unintentional. However, in 2014 the Texas Supreme Court issued a decision in Brookshire Brothers, Ltd. v. Aldridge that (somewhat) clarified the landscape of this area of law. The Court held that a party must act intentionally in the destruction of evidence in order to have a spoliation instruction issued against them. Further, a party’s negligent destruction of evidence can only be punishable when it deprives the requesting party of any meaningful ability to present its claim.

On the surface, this sounds like good news for defendants since it seems to take negligent destruction out of play. But it doesn’t take a stretch of the imagination to envision a movant arguing that the destruction of evidence, even if accidental, deprived them of the smoking gun they needed to prove their claim. These smoking guns are now more aptly described as needles in a haystack given today’s massive exchange of electronic data during a lawsuit. And it only takes one needle to give rise to a spoliation instruction.

Therefore, the takeaway from Brookshire Brothers is that clients should be just as diligent in preserving evidence as they have always been. Reasonable document retention policies must be maintained at all times, and lawyers should be in constant communication with their clients about the types of information that will be discoverable in a case and the best efforts to preserve that information. A few years from now we should have more guidance from the courts as to what type of unintentional actions are worthy of punishment. But until then, it is better to be safe than sorry.

Why do courts seem to hate temporary injunctions?  By the very nature of the relief requested, the parties come to court with urgency for immediate action.  The trial judge has to find time on her docket for a hearing in a case that probably did not exist a week ago.  The parties scramble to conduct discovery on shortened deadlines, and present issues that may not be ready for judicial action yet.  Then there is the inevitable appeal by the losing side.  Temporary injunctions are expensive, time-consuming, but seem to be the new version of “your day in court.”

And procedural pitfalls abound.  The Fifth Court of Appeals at Dallas issued an opinion last week vacating a trial court’s temporary injunction because the trial court’s order failed to identify the irreparable harm that would result if the trial court did not issue the temporary injunction.  Liberty Fed. Sav. Bank v. 2908 Lovers Lane Enter., LLC, No. 05-16-00389-CV.  Specifically, the court took issue with the boiler plate statement that irreparable harm would occur with any indication of what the harm might be.

The case involved the plaintiffs attempts to stop a threatened foreclosure by obtaining a temporary injunction from the trial court, which the trial court granted.  The Fifth Court of Appeals dissolved the temporary injunction because the boiler plate language that  “Plaintiffs will suffer immediate and irreparable harm unless the Defendant is enjoined …” did not spell out the specific irreparable injury that the applicant would suffer absent the injunction.  The court ruled that the boilerplate language did not satisfy Tex. R. Civ. P. 683’s requirement that “[e]very order granting an injunction and every restraining order … shall be specific in terms[.]”

This Dallas Court of Appeals opinion is something to keep in the back of your mind when preparing the form of the temporary injunction that you want the trial judge to sign.  You also probably should keep it in mind when you are evaluating whether to seek interlocutory appellate review of a decision granting a temporary injunction.

 

My father recently sent me a N.Y. Times article describing how the game of professional hockey and the NHL have changed in the last twenty years.  According to veteran sports writer Dave Caldwell, the NHL has changed from a game that was equal parts speed and obstruction/fighting to a game that primarily is about speed and finesse.  Fighting and hard hits still have a role in the NHL, but according to the stats compiled by Caldwell, as well as the players interviewed, the roles of fighting and “enforcers” are greatly reduced in today’s game.

44532438 - ice hockey player on the ice, outdoors
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Being from Brooklyn, NY, and having spent the first twenty-seven years of my life in New York, New Jersey, Rhode Island, and Boston, I have always been a hockey fan.  I still love hard hits and checks.  When I go to a Dallas Stars game, part of me still yearns for the “good old days” of hockey when N.Y. Islanders goalie Billy Smith seemingly would slash a player just for skating by his crease.  But even I, as an old school hockey fan, am forced to admit that the truly great hockey players of years past, such as Wayne Gretzsky, and of today, such as Jamie Benn, are skill, speed, and finesse guys, not brawlers.

This got me thinking – can the same be said for the practice of law?  Practicing law is a second career for me, so I usually have to rely upon folks older than me (in lawyers years, but not necessarily in years on this planet) to hear about the “good old days” of law practice before the Texas Rules of Civil Procedure were changed in 1999.  According to a paper co-authored by Texas Supreme Court Chief Justice Nathan Hecht, the rule changes were enacted to simultaneously allow more pre-trial discovery and put limits on discovery, and virtually eliminate trial by ambush in the much same way as the NHL largely has eliminated fighting.

Aren’t the truly great lawyers of today also skill and finesse people, as opposed to brawlers?  I cringe when I hear lawyers talk about times when a case was overstaffed with a team of associates to flood the other side with motion after motion, discovery request after discovery request, and letter after letter, to attempt to beat the other side into submission (the 1999 rule changes also addressed this problem and the inequities it caused).

I believe that clients are better served today by having an experienced lawyer properly staff a case to represent her client’s best interests. I also believe that while we lawyers are ethically required to zealously represent our clients, we can do so in an efficient, nimble, and strategic manner.  And the practice of law is continuing to evolve in line with this trend, with the recent changes to the Federal Rules of Civil Procedure now requiring all discovery sought to be proportional to the needs of the case.

A lawyer can be both strong and respectful – in fact, in my opinion, respect is a sign of strength.  So, yes, in law, as in hockey, there still is a place for the occasional brawl.  However, these are the exceptions, not the rule.

I have seen it many times.  A deposition is taken in a federal case, and the lawyers agree to take it by the Texas rules.  They may even be vague and simply agree to take it “by the rules”, or even stay silent for that matter.  I have a sneaky suspicion that many times these agreements are made due to a lack of familiarity with the federal rules with respect to depositions.  But if you are a lawyer defending your client’s deposition, you are missing out on a key opportunity to use the federal rules to your advantage when it comes to objections.  And if you are a lawyer taking the deposition, you are missing out on an opportunity to fine tune your questions to the witness.

All Texas litigators are familiar with the trio of objections allowed under the state rules: “Form”, “Nonresponsive”, and “Leading”.  Perhaps this familiarity breeds a bit of laziness in agreeing to these same rules in federal depositions.  However, FRCP 30(c)(2) allows for a concise objection to be made in a nonargumentative and nonsuggestive manner.  In other words, you are not limited to the three basic state court objections.  Keep in mind that certain federal jurisdictions, such as the Eastern District of Texas, allow for objections similar to the state rules.  But in most others you should generally be abiding by the federal rules.

As a lawyer defending your client’s deposition, your Rule 30 objections will provide more information to your client as to why a certain question was not proper.  Of course, that also affords the questioning attorney an opportunity to “fix” his question once he hears the type of objection being made.  Therefore, you can decide if the federal rules provide a worthwhile advantage to you based on the demeanor of the witness, as well as the skill and experience of opposing counsel.  But don’t leave any such advantage on the table for the sake of expediency, or worse, a lack of familiarity with the rules.

Copyright: macor / 123RF Stock Photo
Copyright: macor / 123RF Stock Photo

Before becoming a lawyer, I spent a couple of years working in media relations for a university athletic department. For those who don’t know, the media relations team is essentially the PR wing of the sports organization.

At the time, Twitter was coming onto the scene as a popular tool in the realm of sports media. Universities and professional sports organizations were using it to promote their athletes for national awards, fans were using it to consume information about their favorite teams, and writers were using it as a way to promote their columns and feature stories.

Twitter became the fastest and most convenient way to consume information. Except, it terrified—and continues to terrify—the media relations professionals whose job it is to control the message coming out of their sports organization.

I will never forget one of my mentors in media relations telling an athlete, after a particularly embarrassing tweet that garnered substantial media coverage: “Every time you send a tweet, pretend you are giving an interview on ESPN. Then re-read the tweet, and decide whether you want to send it.”

That particular lesson has stuck with me ever since then, and I think it applies equally for attorneys. Many of today’s lawyers, especially “millennials” like myself, use Twitter and other social media as a way to market themselves and their firms. Intermingled in those professional tweets are often the person’s (likely unsolicited) personal opinions.

Lawyers should think the same way as media relations professionals. Every time you send a tweet, pretend you are giving an interview with the national media. By sending that tweet you are potentially representing your firm and your clients to an unlimited audience. Unfortunately, many people in this profession have learned this lesson the hard way.

So, lawyers. Before you hit the “Tweet” button, remember: you are giving an interview to a potentially international audience, whether you realize it or not. That interview could provide a fantastic marketing opportunity for you and your firm, but it could also cause you to lose a client, your case, or even your job.

Outside of my work as a litigator I train in Brazilian Jiu-Jitsu.

Fighting
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I am a beginning white belt in jiu-jitsu, while I am entering my 17th year of practice as a lawyer.  But the parallels were immediately obvious to me when I started martial arts training.

At its most fundamental, jiu-jitsu is about positioning and leverage.  How can you improve your position and increase your leverage over your opponent?  How do you survive the attack from a bigger or stronger opponent, stay comfortable in the middle of the fight, and wait for your opportunity to improve your position and submit your opponent.

This principle informs my litigation strategy.

Recently I represented a partner in a business.  The partnership had soured and my client was accused of theft of hundreds of thousands of dollars’ worth of products and cash belonging to the partnership.  Like many small businesses, the records were less than impeccable.

My client, while absolutely innocent, was very nervous.  She was such an honest person that the mere accusation of theft made her feel guilty.  And, in feeling guilty, she looked guilty. On the other side we faced a professional litigant of sorts who had made a second career out of filing dozens of lawsuits. She had also always gotten her way in the relationship.

Our opponents’ strength lay in the disparity between the two key witnesses in what amounted to a she said/she said case.  My client, while innocent, appeared nervous and guilty. In contrast, our opponent had plenty of experience on the witness stand.

The business lacked good records and the Plaintiff and her lawyer were resistant to readily and fully providing information.  So, we built a record through discovery requests and written correspondence.

This resistance became the theme of our case. We set the traps, improved our position and waited for our opponent to give us our opportunity.

At the beginning of trial, we pushed a motion to exclude key evidence of Plaintiff’s claimed damages because of their failure to timely disclose information.

After a half-day evidentiary hearing the Court was poised to strike Plaintiff’s evidence because the Plaintiff and her attorney had repeatedly resisted legitimate discovery requests.

As the trial began, Plaintiff’s counsel realized the damages evidence would likely be struck by the Court.  We settled at the end of the first day of trial.  Plaintiff took nothing and agreed as a condition of the dismissal to put in writing that it had been a misunderstanding that had led her to file the lawsuit.

We had survived the stronger adversary’s attack, improved our position, and were ready for the opportunity we were given.

My client never took the stand.  And, in the end, we submitted our opponent.

Zanshin.

In Zen philosophy and Japanese influenced martial arts, there is the concept of Zanshin.

Zen businessman
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The literal translation is “remaining mind.”  But, it really means a state of relaxed situational awareness.

In the martial arts, Zanshin translates into being aware of one’s surroundings and enemies, while being prepared to act.

But you are already familiar with this concept from sports.  Elite athletes call it “being in the zone.”  Or, you may think of it as living in the moment – being fully present and aware.  It is the polar opposite of being inside your own head.

The practice of Zanshin is a practical and useful tool when you are in trial.

Years ago, when I was still a baby lawyer, another associate attorney asked me to assist her in trial as her second chair.  I had a little more experience having first chaired my own trials.  This was her first trial as the lead lawyer.  And, it was a daunting task.  We were up against a partner and her trial team from a major international law firm.

But for all the experience our opponents had under their belts, we seemed to be far more in tune with the developing situation in the courtroom.

Our opponents had a trial plan.  And, like politicians with their favored talking points, they were going to stay on message come Hell or high water.  Unfortunately, as any combat veteran will tell you, the plan goes out the window the minute the first shots are fired.

The reason we won the trial in no small part was our ability to read the judge and adapt our trial presentation on the fly.  Throughout the trial the other side remained seemingly oblivious to the direction the Court was headed.  The most extreme example of this was at closing.

The morning of the last day of trial the judge let us know that he understood the evidence and the arguments and was ready to rule, and he stated that unless we had our hearts set on making closing arguments, he had a funeral of a good friend to attend later in the day.

We represented the Plaintiff, and my trial partner immediately said she was happy to waive closing argument.  The lead partner for the Defendants told the judge she did have her heart set on making her closing argument.  She proceeded to put on a 45 minute closing argument with a full power point presentation.

The moment she sat down, the judge asked her if she was finished.  When she said yes, he immediately gave his full ruling from the bench-pouring out their counterclaims and ruling in our client’s favor.

We knew we were going to win sometime past the middle of trial.  Defendants’ counsel was blindsided.  They were surprised by the result because they lacked situational awareness.  They had not learned the practice of Zanshin.

Copyright: chagin / 123RF Stock Photo
Copyright: chagin / 123RF Stock Photo

Of all the methods of discovery permitted under the Texas Rules of Civil Procedure, Rule 194 Disclosures are often the most overlooked. Although this type of discovery is exchanged in virtually every civil matter, it is easy for attorneys to become formulaic in their approach to answering disclosure requests. Rule 194 provides parties with the framework for discoverable information under the Texas Rules.

Specifically, Rule 194.2(i) permits parties to request disclosure of “any witness statements described in Rule 192.3(h).” The Rules define witness statements as: “(1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness’s oral statement, or any substantially verbatim transcription of such a recording.” Tex. R. Civ. P. 192.3(h).

At first blush, this provision appears to encompass traditional written accounts of an event, such as incident reports, statements provided to a governmental agency, or recorded accounts taken pursuant to an internal investigation. However, it is important for attorneys to consider other forms of statements which may not fall under the purview of those traditionally provided in response to disclosure requests. After all, if a party wishes to introduce such a statement at trial, it must have been disclosed to the other parties pursuant to Rule 194. See Tex. R. Civ. P. 193.6 (stating that, as a general rule, “[a] party who fails to make, amend, or supplement, a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness . . . who was not timely identified.”).

With this in mind, and with the influx of the use of social media and other forms of new technology, it is imperative that parties disclose any posting to Facebook, Twitter, Instagram, or other statement given on the internet in which the person making the statement can be identified. Similarly, parties need to disclose quotes given to the media, whether such statements be in written or recorded form. Should a party wish to offer these accounts into evidence at trial, they must be included in the party’s responses to Requests for Disclosure.

The implications of this are two-fold. Not only must an attorney cast a wide net on what courts may consider to be “witness” statements under the Texas Rules of Civil Procedure, but there are also lessons to be learned when counseling your clients. Texas attorneys must be diligent in reminding their clients that any post to social media or any statement given to the media regarding the subject matter of a lawsuit may come into evidence at trial. We have seen myriad examples of the negative implications of posting to social media without considering the potential consequences of making such a statement. Beyond public embarrassment and negative implications from the person’s employer, a simple Facebook post or tweet could have significant bearing on the evidence admitted in a litigation matter should a lawsuit ensue.