Posted on December 5, 2008 by Angelo Tartaro

Two Blog Posts With Good Advice About E-mail

Recently, two blog posts had some very good advice about e-mail in the context of litigation.

Daniel Schwartz in the Connecticut Employment Law Blog entitle his post, “You’ve Been Sued, What Phrases Are ‘Hot’ for Electronic Discovery Searches?”   ABAJournal.com, carried a post by Molly McDonough entitled “Things You Should Never Put in an E-mail.”

 

Here is, for me, the simple version of Mr. Schwartz’ advice:

 

don't put something in an e-mail that you wouldn't want your mother to see on the front page of the New York Times six months later.

 

Here is the essence of Ms. McDonough’s advice, quoting a court reporter, Ron Sylvester:

 

My wife says you should never put anything in a company e-mail that you don’t want to be shown to 12 strangers on a big movie screen.

 

How could I say it any better? Thus, I merely make a modest effort to distribute the message further.

 

The message is on the surface merely defensive. In the context of litigation, it says that through discovery, things you put in e-mail will come back to hurt your case. Or, in a more general context, it says e-mail can come back to really embarrass you. More positively, careful attention to what and how you communicate, by e-mail in this case but in any medium generally, can only be beneficial to the business and all connected with it.

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Posted on November 24, 2008 by Angelo Tartaro

Article: Keep It Simple a Trial

ABAJournal.com, as it often does, brought out attention to an interesting article, this time on keeping things simple at trial. The article is by Kris W Scibriorski is in New Jersey Lawyer and entitled “Tools of the trade: Here’s how to win (or blow) a trial.”

The primary tip that the article offers is its “seven little words” tip” “Say it. Prove it. Say it again.”

 

The point is made in a clever way. And, the entire article is a lively, quick read.

 

The article is targeted, of course, to lawyers. But, reprints might be handed to clients on the eve of trial. They are likely to be nervous. Sometimes, unsure of the dynamics of the trial, they will sometimes try to second-guess the trial strategy or, afraid something important will be left out, urge their attorneys to throw in the proverbial “kitchen sink.”

 

The essence of winning at trial, should you be unfortunate enough not to be able to settle your case first, is to communicate the fundamental aspects of your case - - simply and clearly.

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Posted on June 20, 2008 by Beverley Rogers

The Sudoku Mistrial Lesson: Trial Attorneys Should Be Alert to Possible Distractions

The recent Sudoku mistrial post in the Wall Street Journal Law Blog caught my attention (“The Sudoku Jury, Redux: Are the Lawyers to Blame?”). It was about a mistrial declared after a 105-day drug trial in Australia because some of the jurors were playing Sudoku. LB was following-up on an earlier post (“Can You Blame Them? Lengthy Trial Aborted After Jurors Played Sudoku”).

While every trial has its moments when the testimony is not titillating, it's the job of the attorneys to keep an eye on the jurors to make sure they are not otherwise distracted from listening to the witnesses' testimony. The distraction need not be Sudoku or any game.   More often it is simple fatigue. Not every juror gets a good night's sleep so they are sleepy during the day (especially in the afternoon if they had a big lunch).  And, no juror is focusing on the witnesses' testimony one hundred percent of the time. 

Successful trial attorneys are entertaining because they love being on trial.  Trials are the original improv and successful trial attorneys are great actors who enjoy performing.  Successful trial attorneys sense the mood of the jurors and tailor their trial tactics accordingly.  Sleepy jurors may need to take a break to grab a cup of coffee. Or, they may need to take a break to stretch their legs. Regardless, the successful trial attorney needs to make sure he or she has the jurors' attention and can hold it in the palm of their hand.  

The parties in any litigation rarely benefit when a mistrial is declared.  

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