How Do You Avoid Those How Do You Avoid Those ““What the Hell Just Happened?” Moments at Trial?What the Hell Just Happened?” Moments at Trial?

Simple Answer:Simple Answer:Just Follow Ethical Rules 1.1, 1.3, and Just Follow Ethical Rules 1.1, 1.3, and

1.41.4

Failing to Prepare is Preparing to Fail

SpeakersSpeakers

S. Todd Willson

Brittany Nasradinaj

Nicholas Szokoly

RULE 1.1: COMPETENCERULE 1.1: COMPETENCE

Rule 1.1: CompetenceRule 1.1: Competence

• A lawyer shall provide competent A lawyer shall provide competent representation to a clientrepresentation to a client

• Competent representation requires the Competent representation requires the legallegal knowledgeknowledge, , skillsskills, , thoroughnessthoroughness, and , and preparationpreparation reasonably necessary for the reasonably necessary for the representation.representation.

Competency Factors Competency Factors • Relative Relative complexity and complexity and

specialized nature specialized nature of the of the matter;matter;

• General experienceGeneral experience of of the lawyer;the lawyer;

• Training/experience in a Training/experience in a particular fieldparticular field;;

• PreparationPreparation lawyer lawyer devotes to the matterdevotes to the matter;;

• Feasibility of Feasibility of consulting consulting with other lawyerswith other lawyers of of established competence established competence in the particular field.in the particular field.

Preparation is Key!Preparation is Key! Top 5 PTop 5 P’’s of Litigation:s of Litigation:

1.1. PreparePrepare2.2. PreparePrepare3.3. PreparePrepare4.4. PreparePrepare5.5. PreparePrepare

HELPFUL TIPS TO REMEMBERHELPFUL TIPS TO REMEMBER• Know the file Know the file inside and outinside and out

• Know the case better than your adversaryKnow the case better than your adversary• Know the factsKnow the facts• Know each and every issue, as well as what could Know each and every issue, as well as what could

become an issuebecome an issue• Keep organizedKeep organized

Case ExampleCase Example• Albritton v. GillespieAlbritton v. Gillespie, 180 S.W.3d 889 (2005):, 180 S.W.3d 889 (2005):

• Breach of contract action against employerBreach of contract action against employer• Attorney advised both clients to testify as to their own Attorney advised both clients to testify as to their own

damagesdamages• One client had a financial background, while other clientOne client had a financial background, while other client’’s s

expertise was in theologyexpertise was in theology• Jury found employer had breached its contract…Jury found employer had breached its contract…• BUT… Client with financial background recovered $4 million, BUT… Client with financial background recovered $4 million,

while client without financial background recovered $0while client without financial background recovered $0TAKE AWAYTAKE AWAY: An action for malpractice may be : An action for malpractice may be grounded in an attorneygrounded in an attorney’’s failure to provide well-s failure to provide well-prepared expert testimony.prepared expert testimony.

Case ExampleCase Example• Perkins v. American Transit Insurance Co.Perkins v. American Transit Insurance Co.,, 2013 WL 174426 2013 WL 174426

(2013):(2013):• The need to retain a replacement expertThe need to retain a replacement expert• Motor vehicle accident caseMotor vehicle accident case• Attorney failed to call medical expert at trial because expert was Attorney failed to call medical expert at trial because expert was

unavailableunavailable• Judgment was entered against clients, forcing them into bankruptcyJudgment was entered against clients, forcing them into bankruptcy• Court held a trier of fact could find attorney negligent for failing to Court held a trier of fact could find attorney negligent for failing to

apply for and procure a 2apply for and procure a 2ndnd IME IMETAKE AWAYTAKE AWAY: An attorney: An attorney’’s failure to seek leave for another s failure to seek leave for another

IME, even shortly before trial, is not a protected judgment call.IME, even shortly before trial, is not a protected judgment call.

Avoid Neglect of CasesAvoid Neglect of Cases• Respond to clients, follow deadlines, and keep clients Respond to clients, follow deadlines, and keep clients

informed of important issues!informed of important issues!

• NEW YORK Cases:NEW YORK Cases:• ACG v. Brian Kellogg ACG v. Brian Kellogg

• (2013 New York Attorney Grievance case)(2013 New York Attorney Grievance case)

• In the Matter of Warren Scott GoodmanIn the Matter of Warren Scott Goodman• 76 A.D.3d 218 (2010)76 A.D.3d 218 (2010)

• In Re McGinnisIn Re McGinnis• 274 A.D.2d 269 (2000)274 A.D.2d 269 (2000)

TIPS (Continued…)TIPS (Continued…)

How to Get Trial Experience… …How to Get Trial Experience… …Without Having Trial Experience.Without Having Trial Experience.• More settlements and fewer trialsMore settlements and fewer trials• Take on other matters (small claims cases, motions, Take on other matters (small claims cases, motions,

depositions, small personal injury cases, mediations, depositions, small personal injury cases, mediations, infant settlement hearings, etc.)infant settlement hearings, etc.)

• DonDon’’t be in a hurry to leave the court buildingt be in a hurry to leave the court building• Talk to law clerks, judges, experienced attorneys Talk to law clerks, judges, experienced attorneys • Read the Rules of Evidence, over and over againRead the Rules of Evidence, over and over again

Exxon Valdez Oil Spill

This Duck Knows the Price of Failing to Prepare

Rule 1.3: DiligenceRule 1.3: Diligence

ABA Comment: A lawyer must act with ABA Comment: A lawyer must act with commitment, dedication, and zeal on commitment, dedication, and zeal on the clientthe client’’s behalf/s behalf/

A lawyer shall act with reasonable diligence and promptness in representing a client

Rule 1.3: DiligenceRule 1.3: Diligence A lawyer should pursue a matter on behalf of a A lawyer should pursue a matter on behalf of a

client despite opposition and obstruction client despite opposition and obstruction A lawyerA lawyer’’s workload must be controlled so that s workload must be controlled so that

each matter must be handled competentlyeach matter must be handled competently 31 years - Problem case – Center of Your Desk31 years - Problem case – Center of Your Desk Diligence = DeterminationDiligence = Determination 1.3 - Protect those who trust you - Fulfill their Trust! 1.3 - Protect those who trust you - Fulfill their Trust! Secret Powerful Weapon/Secret Powerful Weapon/

This Is a Flare Gun

Real Life Story Real Life Story - - The Prepared The Prepared AttorneyAttorney

A lawyer who believed in A lawyer who believed in thoroughly preparing his thoroughly preparing his cases was retainedcases was retained

Insurance limited to Insurance limited to $100,000$100,000

Lawyer agreed to reduce Lawyer agreed to reduce contingent fee to give contingent fee to give client max recoveryclient max recovery

Advised client to keep Advised client to keep car in storagecar in storage

The PirateThe Pirate Another attorney approached Another attorney approached

client and learned of proposed client and learned of proposed settlementsettlement

Had the client fire the attorney, Had the client fire the attorney, calling him an calling him an ““ambulance chaserambulance chaser””

Told the client to get rid of the car Told the client to get rid of the car for the storage feesfor the storage fees

He promised to conduct the He promised to conduct the necessary discoverynecessary discovery

A $100,000 was a A $100,000 was a ““drop in the drop in the bucketbucket””

Promised to recover $1 millionPromised to recover $1 million Three important words /Three important words /

You Did What?You Did What? Despite his promises, the pirating attorney failed to conduct the necessary discovery

Failed to prepare the expert discovery necessary to prove $1,740,000 in damages

Ignored his client’s numerous requests for information

Failed to act with diligence and settled the case for $100,000, taking $33,000 for himself

Guess what happened to the Pirate?/

The Malpractice VerdictThe Malpractice Verdict

As a result of his malpractice, the Pirate was As a result of his malpractice, the Pirate was found liable for:found liable for: $740,000 for $740,000 for medical billsmedical bills $1 million for $1 million for loss of wagesloss of wages $250,000 for $250,000 for pain and sufferingpain and suffering $250,000 for $250,000 for loss of consortiumloss of consortium $33,333.33 for $33,333.33 for attorney’s feesattorney’s fees

But it doesn’t end there…/But it doesn’t end there…/

The Attorney Grievance TrialThe Attorney Grievance Trial At the Attorney Grievance trial, the pirate was At the Attorney Grievance trial, the pirate was

found in violation of:found in violation of: 1.1 (for not providing competent representation)1.1 (for not providing competent representation) 1.3 (for not being diligent in his cases)1.3 (for not being diligent in his cases) 1.4 (for not communicating properly)1.4 (for not communicating properly)

The Pirate was suspended from the practice of law The Pirate was suspended from the practice of law INDEFINITELYINDEFINITELY

All HELL just happenedAll HELL just happened Another Great Weapon - Our Friend and Buddy../Another Great Weapon - Our Friend and Buddy../

Using Fear to Avoid Those “What the Using Fear to Avoid Those “What the Hell Just Happened?” Moments at TrialHell Just Happened?” Moments at Trial

““I have been at this I have been at this 60 years and every 60 years and every time I start a jury trial, time I start a jury trial, I am afraid.”I am afraid.”““You would think You would think that after all those that after all those years that I wouldn’t years that I wouldn’t be that way but I be that way but I am.”/am.”/

FEAR

Fear is Your BuddyFear is Your Buddy “We’re all really very afraid. I think we have to recognize

our fear and use it.” “Once we face it and own up to it, it will energize us, and

magically it will retreat like a cowering dog.” “If you’re not afraid, you don’t care. If you don’t care, how

can you ask the jury to care?”

Fear Diligence = Determination Preparation = Will Avoid “What the Hell Just Happened?” Moments Will Protect Those Who Trust You

My Story - My ConfessionMy Story - My Confession 31 years – First 10 years31 years – First 10 years

If Insurance Try it! Try everything!If Insurance Try it! Try everything!

The Bigger the Better. The Worse the The Bigger the Better. The Worse the Better.Better.

I have no fear. No Worry. I have no fear. No Worry.

And Then… And Then…

Over 20 years ago – Legal Malpractice Trial – Over 20 years ago – Legal Malpractice Trial – Big, Tough, Rugged, Strong, Seasoned LawyerBig, Tough, Rugged, Strong, Seasoned Lawyer

Courageous, Ferocious BattleCourageous, Ferocious Battle Win – Defense VerdictWin – Defense Verdict The Tough Lawyer The Claims Rep. The Tough Lawyer The Claims Rep. Instead of denying fear – More Worried, Afraid Instead of denying fear – More Worried, Afraid

For People Who Trust Me More Diligent, For People Who Trust Me More Diligent, Determined, Prepared – To Protect Attorney, Determined, Prepared – To Protect Attorney, Claims Representative/Claims Representative/

SummarySummary

DonDon’’t Deny Fear – Use It Greatlyt Deny Fear – Use It Greatly Fear is Your Friend and the Buddy of Those Fear is Your Friend and the Buddy of Those

Who Trust YouWho Trust You Fear Diligence = Determination

Preparation Will Fulfill 1.3 Will Avoid “What the Hell Just Happened?”

Moments Will Protect Those Who Trust You/

RULE 1.4: COMMUNICATIONRULE 1.4: COMMUNICATION

How to overcome your worst cross-How to overcome your worst cross-examination and still win at trialexamination and still win at trial

Rule 1.4: CommunicationRule 1.4: CommunicationRule 1.4: Rule 1.4: (a) A lawyer shall:(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent is requiredto which the client's informed consent is required(2) reasonably consult with the client about the means by which the (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;client's objectives are to be accomplished;(3) keep the client reasonably informed about the status of the matter;(3) keep the client reasonably informed about the status of the matter;(4) promptly comply with reasonable requests for information; and(4) promptly comply with reasonable requests for information; and(5) consult with the client about any relevant limitation on the lawyer's (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.permitted by the Rules of Professional Conduct or other law.(b) A lawyer shall explain a matter to the extent reasonably necessary to (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.permit the client to make informed decisions regarding the representation.

And you thought the GOP debates And you thought the GOP debates were scary?were scary?

Mixter v. M.E. BurtonMixter v. M.E. Burton, ___ Md.App. ___, Sept. , ___ Md.App. ___, Sept. Term 2015 (September 15, 2015).Term 2015 (September 15, 2015).

Client, Plaintiff Railey, tanks the deposition as Client, Plaintiff Railey, tanks the deposition as to Claims against the Cochran Defendants.to Claims against the Cochran Defendants.

Was 1.4 followed? Was Client advised that the Was 1.4 followed? Was Client advised that the Claims against those Defendants were beyond Claims against those Defendants were beyond saving? Sure doesnsaving? Sure doesn’’t sound like it…t sound like it…

Ruh Roh Shaggy!Ruh Roh Shaggy! Counsel for the Cochran Defendants argued that had Counsel for the Cochran Defendants argued that had

this matter simply been dropped after this this matter simply been dropped after this deposition, probably no sanctions would have been deposition, probably no sanctions would have been sought. sought. It was certainly blatantly obvious after Ms. It was certainly blatantly obvious after Ms. Railey's deposition that her case against the Railey's deposition that her case against the Cochran Defendants was nonexistent. Counsel for Cochran Defendants was nonexistent. Counsel for the Cochran defendants argues that the Cochran defendants argues that Mr. Mixter proceeded nevertheless to prosecute Mr. Mixter proceeded nevertheless to prosecute this case up through the ultimate dismissal by way this case up through the ultimate dismissal by way of this Court's order granting summary judgment.of this Court's order granting summary judgment.

Check please.Check please.This Court now finds that the deposition of Ms. Railey so seriously This Court now finds that the deposition of Ms. Railey so seriously undermined her complaint that she and her attorney should have undermined her complaint that she and her attorney should have known that the case against J.G. Cochran Auctioneers & Associates known that the case against J.G. Cochran Auctioneers & Associates was frivolous from the start. Consequently, the various motions, was frivolous from the start. Consequently, the various motions, notices of deposition and subpoenas advanced by Ms. Railey, through notices of deposition and subpoenas advanced by Ms. Railey, through her attorney Mr. Mixter, were both in bad faith and without her attorney Mr. Mixter, were both in bad faith and without substantial justification.substantial justification.

Sanctions: $111,886.25.Sanctions: $111,886.25.ClientClient’’s share: $10,000s share: $10,000

““[F]or not properly communicating [F]or not properly communicating with Mr. Mixter, and for with Mr. Mixter, and for not instructing Mr. Mixter to dismiss the litigation.not instructing Mr. Mixter to dismiss the litigation.””

AttorneyAttorney’’s share: $101,886.25.s share: $101,886.25.

1.4: Communication - Sometimes, you have 1.4: Communication - Sometimes, you have to admit that it all went wrong.to admit that it all went wrong.

We are in trial, what do the ethical rules have to do with it?

……(2) reasonably consult with the client about the means (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;by which the client's objectives are to be accomplished;(3) keep the client reasonably informed about the (3) keep the client reasonably informed about the status of the matter;status of the matter;……(5)b A lawyer shall explain a matter to the extent (5)b A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make reasonably necessary to permit the client to make informed decisions regarding the representation.informed decisions regarding the representation.

Oh, it happened.Oh, it happened.

Setting the stage:Setting the stage:Client as next friend of Plaintiffs has one job, Client as next friend of Plaintiffs has one job, testify about the dates of tenancy and about the testify about the dates of tenancy and about the deteriorated paint conditions.deteriorated paint conditions.Tenancy period is clear based on lease and Tenancy period is clear based on lease and move out documentation.move out documentation.

But, thereBut, there’’s just one thing…s just one thing…

During the tenancy, witnessDuring the tenancy, witness’’ wife sent a letter wife sent a letter to the landlord advising that she was about to to the landlord advising that she was about to move. move.

She didnShe didn’’t move and testified as much, but, t move and testified as much, but, [damn ethical rules] attorneys could not tell [damn ethical rules] attorneys could not tell her husband what she testified to.her husband what she testified to.

And, off we go.And, off we go.

Direct was uneventful.Direct was uneventful. Cross, however was an adventure.Cross, however was an adventure. Witness adopted Defense assertion that the Witness adopted Defense assertion that the

notice letter was the date they moved out.notice letter was the date they moved out.

How he looked on cross was very How he looked on cross was very similar to my face watching it happen.similar to my face watching it happen.

CODE BLUE!CODE BLUE!

Recovery - I take 0.001% credit.Recovery - I take 0.001% credit.

Remember the six people and two of their Remember the six people and two of their friends that couldnfriends that couldn’’t get out of jury duty.t get out of jury duty.

Disaster is in the eye of the beholder.Disaster is in the eye of the beholder. Give people some credit before you break out Give people some credit before you break out

the lifeboats.the lifeboats.

Back to 1.4Back to 1.4

Honest appraisal of how the trial is going.Honest appraisal of how the trial is going. Honest appraisal of what can and is likely to Honest appraisal of what can and is likely to

happen next.happen next. Written communication of settlement offers Written communication of settlement offers

and decisionsand decisions..