Minor Wisdom

How to conduct more effective jury voir dire

I just finished a month’s worth of jury duty at Criminal District Court here in New Orleans. In a day or two, I will write about what lawyers ought not do when examining potential jurors. Meanwhile, for trial lawyers brave enough to try this, here’s a tip from the Invisible Gorilla on how to get potential jurors to confide in you.

Soon to come: Thoughts on jury duty

Every Monday and Wednesday of this month, I’ve been reporting to Criminal District Court here in New Orleans for jury duty. While I haven’t been picked yet, sitting in the courtroom or the jury box for voir dire has been educational. When the whole thing is over and my comments can’t be tied to any particular case, I may post something about what the lawyers did right and did wrong—from the potential jurors’ perspective. Meanwhile, I have these two observations:

First, it appears that our still relatively new D.A., Leon Cannizzaro, is pushing more cases to jury trial. The last time I had jury duty at Criminal District Court (about 4 years ago), most days I never was called from the juror lounge to a courtroom. This time, I’ve gotten into the courtroom and into the jury box all but one day. So from this admittedly narrow perspective, it seems that more cases are going to trial under this D.A. compared to his predecessor.

Second, while lawyers should not be immune from jury duty, we really should get CLE credit for it. Whatever kind of law you practice, you get a refresher in criminal law and procedure. And perhaps more importantly, you observe the lawyers’ work from the jurors’ perspective. That education is probably far more valuable than any lecture or PowerPoint presentation you sit through.

Today’s sign of the Apocalypse is ...

... The Ashley Madison Agency. It’s sort of like a dating service, except it’s not for singles—it’s for married people looking for someone to have an affair with. Its proprietor, Noel Biderman, explains what it’s all about in this interview.

Noel says that lawyers form his clientele’s largest professional group. Which brings to mind my favorite lawyer joke. A female client of a married male divorce lawyer tells him one day that she is in love with him and wants his, uh, whatever. He tells her, “Is that what you want—sneaking around, meeting in dark barrooms for drinks, having trysts in cheap hotel rooms?” The client, reduced to tears, says, “No, I guess not.” Says the lawyer, “Oh, well. It was just a suggestion.”

Preserving error for appeal

Today Adams and Reese partner Mark Surprenant and I have the privilege and pleasure of presenting a one-hour class on preserving issues for appeal, as part of the Louisiana Justice Community Conference. For seminar participants, and other Louisiana lawyers interested in the topic, here are PDF copies of:

• Written materials
• PowerPoint presentation

If you view the PowerPoint presentation, you'll see several slide about sandbagging. There is a story behind my fixation on that word, which I will tell one day on The (New) Legal Writer. For today, suffice to say that sandbagging is a legal term of art, well understood by legal writers such as Bryan Garner (editor of Black's Law Dictionary) and Supreme Court Justices Scalia, Stevens, and O'Connor.

A new form of alternative dispute resolution

After some lawyers in Florida couldn't agree on the site for a deposition, one of them filed a motion to have the judge decide the site. The judge denied the motion, and instead ordered the lawyers to decide the issue by playing one round of rock-paper-scissors; the winner would get to decide where to hold the deposition. The court's order is here, and the CNN.com story is here. (Hat tip to my pal Roger Hughes for this one.)

Update: May It Please the Court has a copy of the order itself.

A reflection on technology and practicing law

Today, to get done a couple of things that I needed to get done, I relied on technology — no cutting-edge stuff, but stuff that nowadays is run of the mill. The accomplishment of both tasks got me thinking about how much change has occurred where technology intersects with the practice of law.

This morning at home, between breakfast and showering, I checked my office e-mail via the Web and my home computer (in itself, something unheard of in 1990). A team of lawyers was collaborating on putting together a document that needed to be finished by mid-morning. Among other things needed to finish the document were insertions of quotations from and citations to some caselaw. So I ran down those quotations and citations on my home computer via Westlaw web access, cut and pasted them into an e-mail, and sent them to the lawyer who was putting everything together. Then the writing lawyer needed a quotation from a court decision in our case. I thought the decision could probably be found on a legal blog. So I visited the blog, searched for and found the decision, downloaded it, and located the quotation that the writing lawyer needed.

When I started practicing law in 1990, I couldn't have done any of this from home. To help the team, I would have needed to be physically present in the office, running to the law library and the file room to pull what was needed. But in 2006, technology made it easy to do all this at home, between breakfast and showering.

Toward the end of the day, I was looking for some forms to use in drafting something. When I started practicing in 1990, this would have meant looking at my own form file (paper), and maybe asking some folks in nearby offices, "Do  you have a form for ...?" Instead, in 2006, I just ran a search in our document-management system, and immediately located a dozen examples of what I needed to draft. Again, run-of-the-mill stuff in 2006, but miraculous by 1990 standards.

Two concluding thoughts: First, technology really does make practicing law easier in 2006 than it was in 1990. Second, I'll bet that in another 16 years, we'll be doing things with technology that, today, we can't imagine.

Update your Rolodex: Ernie is flying solo

My around-the-corner neighbor Ernie Svenson announced today that he has left Gordon Arata, "the wonderful law firm where [he's] practiced law for the past eighteen years," to open his solo firm, Svenson Law Firm LLC. Ernie will continue to handle business disputes, applying technology to handle them efficiently and effectively. Congratulations, Ernie; may you enjoy the best of success and satisfaction.

For Bridging the Gap participants

This afternoon, I helped present the appellate segment of the Louisiana State Bar Association's Bridging the Gap seminar for newly minted lawyers. For those participants — and anyone else who may be interested — here are PDF copies of:

• PowerPoint presentation (six slides per sheet) (263K)
  
• PowerPoint presentation (1 slide per sheet) (2.1M)
• Written materials (same as in seminar book) (18.5K, updated 2/2/06)

You may also be interested in A Writ In Time, an article that you may find helpful in figuring out the deadline to apply to the court of appeal for a supervisory writ. To view a PDF copy of that article, click here.

p.s. (2 Feb. 2006): When I originally uploaded my written materials (third item on list above), I neglected to include my bio — poor marketing on my part. I've since fixed that. If you previously downloaded the written materials without bio, please download the updated version, with bio, and feel free to pass it around to your Louisiana lawyer friends.

The connection between free alterations and legal marketing

Nine days ago, I praised my haberdasher, Perlis, for its marketing genius in offering lifetime free alterations. This service increases sales in two ways: First, it gives the customer an additional reason to buy a suit from Perlis rather than from another store. Second, it encourages the customer to return to the store for those free alterations — once there, he's likely to make additional purchases. I wondered aloud how that marketing lesson could be applied to legal services.

Today, Tom Kane answered my question on his Legal Marketing Blog. His answer is "well, duh!" simple:

Don’t charge your clients for every minute of your time. In fact, don’t bill for a lot of minutes, if you are trying to develop a lasting relationship with your clients. Legal marketing is also about giving freebees.

I would add just one thing: Make sure your clients know that they can pick your brain for a minute or two without getting billed for it.

A lesson in what not to do

At Appellate Law & Practice, the Sixth Circuit reporter tells us about a recent decision from that court, affirming a district court's granting of habeas corpus in a capital-murder case, based on ineffective assistance of appellate counsel. Part III of the opinion describes the seating of a biased juror, one who stated no less than five times that she expected the defendant to prove his innocence—an issue that appellate counsel missed. Part IV of the opinion describes numerous additional errors constituting ineffective assistance, such as failing to meet the client or even talk to him on the telephone (page 16) and ignoring the client's request to withdraw (id.).

But the piece de resistance was counsel's performance at appellate oral argument in the intermediate state court, and later in the state supreme court. The night before the oral argument in the intermediate court, one of the two appellate lawyers had a family emergency, and so could not attend the argument. The court denied a request to continue the argument, so the other lawyer had to carry the ball. She fumbled. She refused to discuss or answer any questions the panel asked about issues briefed by the other lawyer. The Sixth Circuit commented, "Having counsel refuse to address half of the issues raised before the appellate court is like having trial counsel refuse to attend half the trial. On those issues, therefore, Franklin suffered a total lack of meaningful advocacy." Slip op. at 16.

Then there was counsel's unprofessional behavior before the state supreme court, described thusly by the Sixth Circuit:

The transcript of their arguments include five instances of wholly inappropriate laughing on the part of both of Franklin’s lawyers, an admission by Dieffenbach that she may be wrong about one of her contentions, equivocal responses to questions from the justices, and Greenham’s introductory statement that she "wished we had more to say on Mr. Franklin's behalf." In addition, Franklin’s counsel displayed a lack of familiarity with the facts relevant to the arguments she made to the court. For instance, Greenham did not recall the length of the videotape she argued was gruesome and prejudicial, and stated that "apparently it was very graphic," strongly suggesting she had not even viewed the allegedly offending videotape herself. Dieffenbach did not know how many points of identification existed between Franklin’s fingerprint and the print lifted from the champagne bottle found in the Strauss apartment. Greenham displayed an astounding lack of solemnity under the circumstances when she employed the term "overkill" to describe the photographic and videographic evidence, then laughed and said "Excuse the pun." [Slip op. at 16.]

The first page of the opinion says that it's "recommended for full-text publication." Here's the lesson for the rest of us lawyers: If this isn't how you want to be immortalized in the Federal Reporter, then don't do what these lawyers did. When you show up for oral argument, be prepared, and be professional.