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From the President9 STEPS TO BETTER WRITING

FOR PARALEGALSPAGE 4

3 TRAPS TO AVOID AT TRIAL

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LEGAL ASSISTANT’S CHECK-LIST FOR ANY PROCESS

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TRICKS SOME LAWYERS PLAY IN CIVIL LITIGATION

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With the landscape of litigation dis-covery constantly evolving, NAEGELI Deposition and Trial understands how critical it is for you to stay informed and position yourself accordingly to best serve your clients. NAEGELI strives to provide you with the most useful infor-mation and tools to support attorneys, paralegals and legal assistants. Over a de-cade ago, we began publishing a newslet-ter to help our clients stay informed on current legal insights. At NAEGELI we pride ourselves on providing the most outstanding litigation support services possible. We are very grateful for the opportunity to work with each of you. We know you have a choice when it comes to your litigation support team. At NAEGELI, we are committed to ex-ceeding your expectations every time.

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NAEGELI Deposition and Trial continues to set the bar by offering the highest level of litigation support services for the legal community. Since our company’s inception in 1980, we have been leading the industry and pushing the boundaries of innovation. NAEGELI utilizes only the most qualified professionals to assist you and your client at every stage of the legal process.

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THINK. Before you type even one letter, be sure you have a clear idea of what you want to say. Vocalize your objective out loud and be as specific as you can: “I want this employer to see that I am perfect for the job,” or “This client must understand the decision that came out of the meeting.” The better you can articulate your ob-jective, the easier it will be to write down, and the more effective the writing will be.

MAKE A PLAN. If you have clearly understood your objective, you should be able to come up with reasons that support it or points that clarify it. This includes the grounds that convince a prospective employer that you are the best candidate for the job — your ability to memorize every word you read, or your can-do attitude that will make it impossible for you to leave work any-time before 8:30 pm, for example. The more specific the illustrations and the clearer they are to you, the easier they will be to develop in writing.

WRITE. Now that you have your objectives firmly in your mind, get your thoughts down on paper or on the screen. It is always easier to edit writing, rather than come up with something new, so just try to get words out as a starting point. Don’t worry too much about

sentence structure, spelling and grammar, or the nu-ances of fine creative writing, just get started and put some words together.

REVIEW FOR CONTENT. Go back to Step 1 and re-state your objective. Now read what you have just written. Does it say what you want it to say? Don’t worry about how pretty the language is; just make sure the ideas are in place. Review the support that you considered in Step 2. Is it all there? Is it listed in an order that makes sense?

CONSIDER THE BEGINNING AND THE ENDING. No one will read a piece of work if the beginning doesn’t lure him in, so make sure that you begin strongly. Stating your objective is an effective way to do that. Also, the final sentences will be the last impression in the reader’s mind. Make sure your words are powerful enough so that she remembers them. You can even re-state the ob-jective if you say it in a new way.

AVOID REPETITION. Look for words that show up again and again. Is there another way to say them? Use your thesaurus to help. If you do have to repeat words, make sure there is some distance between them. Some

All professions require an element of articulation whether done verbally or in writing. Paralegals especially need to develop their communication

skills if they are to find success in the legal profession. Here are some writing tips provided by Center for Advanced Legal Studies.

Paralegal.edu, Center for Advanced Legal Studies / “9 Steps to Better W

riting for Paralegals... et al.” / By Joy Oden teaches English C

omprehension at C

enter for Advanced Legal Studies

(800) 528-3335 NaegeliUSA.com [email protected]

STEPS TO BETTER

FOR PARALEGALS ... et al.

Writing9

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STEPS TO BETTER

FOR PARALEGALS ... et al.

Writing9

times, it’s necessary to say the same word over and over, like my use of the word, ‘word.’ If that’s the case, it’s probably better to just use the word, rather than come up with cumbersome synonyms, like ‘jewels of wis-dom,’ ‘elements of language,’ ‘sentence building blocks,’ which, as you can see, can get out of hand and become distracting.

READ THE DOCUMENT ALOUD. This will help you fine tune the sentence structure. When you listen to what you’ve written, you can often hear mistakes like sen-tence fragments or run-on sentences that you might have missed in the writing. A sentence should sound complete and express only one main idea. Make sure your sentences are grammatically sound. You can even have other people read and edit your work if you are unsure about this. Also, grammar check is a wonderful tool.

READ IT BACKWARDS. This takes all context away from each individual word and makes spelling errors leap off the page. And use spell check. Nothing says “I don’t really know what I’m doing” more than spelling or grammar errors.

BE UNIQUE. We are all bombarded with the written word copiously. You will need to stand out. And purple Wingdings as a font choice is not the way. Consider re-placing cliches like ‘leap off the page’ with something fresh and original, like ‘stand out like goose bumps in the arctic.’ Make a list of 9 rather than the usual and bor-ing 10. Be yourself and let your rareness shine through your words.


Use spell check. Nothing says “I don’t really know what I’m doing”

more than spelling or grammar errors.

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LITIGATION SUPPORTPowerful

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“This is an article about what works at trial. Generally the law-yers I see defending civil cases in my court do a very good job. But we all make mistakes, and in a jury trial we all know that a

multitude of things can either go right or go wrong.”

o win at trial, an attorney must clearly communi-cate and persuade—developing a positive emotional rapport with the jury is a way to open up communica-tion so the jury can truly connect with the content of your message. In addition, from a defense perspective there are certain pitfalls which one needs to work hard to avoid that present the risk of a very costly result. I am now in my seventeenth year as a trial judge. I am always watching for what works and what does not work for each side. In this article I want to share my reflections on three of the most common traps that can diminish the effectiveness of defense counsel.

1. Falling Into the “Big Bad Corporation” TrapHumility sells. Arrogance and bullying do not. One of the consistent problems I have seen for an institutionaldefendant over the years is allowing itself to be por-trayed as a bully. Jurors do not like bullies, and when they see this type of behavior, it tends to cause the nor-mal reaction of cheering for the underdog.


at TrialTHREE TRAPS TO AVOID

By ~ The Honorable Jerome LaBarre, Multomah County Circuit Court

The Verdict / “Three Traps To Avoid at Trial“ / By The Honorable Jerom

e LaBarre, Multnom

ah County C

ircuit Court

Humility sells. Arrogance and bullying do not.

8


Of course, at trial, the judge will instruct the jury that the case must be decided on the evidence and on the law, and that neither sympathy nor prejudice against any party is to play any role in the jury’s decision. But the jury is made up of 12 warm-blooded human beings.We know that emotion plays a role in all decision-mak-ing. Therefore, if the facts come out at trial in a way that depicts defendant as overbearing, greedy, or recklessly disregarding the legitimate concerns of the plaintiff, then there may be big trouble ahead for the defendant.

In my opinion there are appropriate ways to counteract and minimize the damage that may be caused by a cor-porate defendant’s appearance of excess size, wealth, or power. Very simply, the defendant must be humanized.The reality is, just like the jury deciding the case, cor-porations and businesses are made up of individuals. When defense counsel undertakes the defense of an in-stitutional defendant, efforts should be made to intro-duce the “people side” of the business. I have seen this done in many different ways. It can be highly effective in removing the negative inference that bigness is badness.

In the courts our goal is to provide a level playing field to both sides and not to let emotion get in the way of deciding the case on its merits. Most cases end up with the right result for the right reason. But it is important that defense counsel not unnecessarily let the client get cloaked with a bad image in front of the jury. It is hard enough to win without having a big emotional hurdleto overcome.

2. Not Admitting the ObviousPick your battles. Only fight about what really matters to your case. Abraham Lincoln was a gifted trial lawyer for 25 years. He represented railroads and individuals before he became one of our greatest presidents. His former law partner William Herndon described Lin-coln’s way of winning cases with words to this effect: “He would concede, concede and concede until he got down to the nub of the issue he would win upon.” Lin-coln would admit his opponents’ minor points in order to give force to his own major points. It takes confidence to do this. But there is power in brevity.

A good example of how this can work well for the de-fense can be found in rear-end automobile accident cas-es alleging soft tissue injuries. In my courtroom I have seen many defense verdicts in such cases even though liability was admitted. The defense does not seem to be disadvantaged when the case is submitted to the jury to determine only the nature and extent of the injury and what damages, if any, should be awarded. Defense counsel do not weaken their efforts by straying from their central contention that the damages sought have not been proven.

There are important lessons in these cases, which apply to many other types of defense cases as well. It is always hard to wade through a multiplicity of issues to decide


9(800) 528-3335 NaegeliUSA.com [email protected]

what should be emphasized and what should be down-played or ignored. By simplifying your case and focus-ing on major points, you will improve your advocacy.

3. Disagreeing Without Being DisagreeableLitigation is a polite form of waging warfare as a way of resolving disputes. The court rules must be followed, and also the rules of professionalism. From what I have seen over the years, being highly professional also helps to win at trial. Jurors and all of the rest of us in th court-room operate out of both the head and the heart. A lawyer may have a case that is objectively strong on the facts, but the waters can be muddied if the focus gets shifted to bad behavior that makes counsel look like an unpleasant person. Trying your case in a way that is re-spectful and courteous to the other side embracesprofessionalism.

Based upon watching hundreds of trials, I have come to believe that most attorneys try hard to follow the prin-ciples of professionalism. The Oregon State Bar State-ment of Professionalism provides in pertinent part:

As officers of the court, we aspire to a profes-sional standard of conduct that goes beyond merely complying with the ethical rules. Pro-fessionalism is the courage to care about and act for the benefit of our clients, our peers, our careers, and the public good.

I will not employ tactics that are intended to delay, harass, or drain the financial resources of any party.

I will be courteous and respectful to my cli-ents, to adverse litigants and adverse counsel, and to the court.

I will only pursue positions and litigation that have merit.

The above aspects of professionalism are not just im-portant for the sake of your obligations as a lawyer, but in my view they raise your chances of prevailing. My recommendation to attorneys who want to improve their game is to work on improving their professional-ism. It is a real “win-win.” This advice also applies to ADR. When I act as a settlement judge I also see the merit in this approach by counsel. There is an old say-ing: “Be hard on the problem and soft on the people.” This works wonders. The disputes that one handles arebattles. But disagreeing without being disagreeable is the best way to operate in the courtroom.

ConclusionTrying cases is an art, but it is also a science. Things can always go wrong. But avoiding the mistakes describedabove is an easy way to bring focus to the strengths of your case. It turns out that the simple virtues — which we may have learned in kindergarten —s erve us notonly in life but in the courtroom as well.

The honorable Jerome LaBarre is a graduate of the University of Oregon

and Georgetown University Law Center and is a Mulnomah County

Circuit Court Judge.


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@Law

/ The NALS M

agazine for Legal Professionals / “A Legal Assistant’s Guide: Create A Checklist For Any Process“ / By Angelle M

arie Garcia, AC

P

or me, setting pen to paper (or fingertips to keyboard) and reduc-ing all of my tasks to a checklist is essential to my work and my well-being. I have a checklist for all of the important tasks that I need to accomplish at work and at home. I find that having a protocol to follow is essential, especially for impor-tant matters that need to be repeat-edly accomplished. A well-designed checklist can be an important tool in creating a protocol that will allow you to (1) ease your mind, (2) man-age an array of assignments/tasks, (3) prevent mistakes, (4) improve your work, (5) track your efforts, and (6) accomplish your goals.

Even with the clear benefits of hav-ing a checklist in place for important tasks, some can find it overwhelm-ing to even think about taking the

time to create a checklist. This may be because checklists that are too lengthy or complex are not actually

useful. Checklists do not have to be complex or lengthy. To be effective, a checklist should have a limited number of items (one-page maxi-mum is a good rule) and should focus on the most important steps to complete the protocol and reach the goal. A clear and concise check-list for each important task will al-low you to quickly move through the protocol while assuring you are reaching the end goal without miss-ing a step or making a mistake. Remember, everyone makes mis-takes but the difference between be-ing good and being great is catching your own mistakes. A proper check-list will help prevent mistakes and will ensure critical steps are taken so goals are accomplished, the de-sired result is achieved and, where applicable, that you are producing the best work product possible.


There is an old saying: “A troubled mind sure can know no rest.” A checklist can be an amazing tool for easing your mind and putting a protocol in place that can be utilized for tasks that are often repeated.

A LEGAL ASSISTANT’S GUIDE:

CreateA CHECKLIST

FOR ANY PROCESS

checklist noun

check•list \

‘chek-,list \:

a list of things

to be checked

or done.

14


CreateA CHECKLIST

FOR ANY PROCESS

To start your checklist, begin at the end. That is, know exactly the outcome you are working toward. What do you want to accomplish? With a clear focus on the de-sired end result, use the following checklist to create a checklist that will aid you in reaching the goal.

1. Start at the end. Have a clear goal in mind. Make this goal the title of your checklist.

2. Focus on the important steps. Do not list “retrieve file” if you know you cannot begin work without the file. Only list the important steps you might miss if you do not have them on the list.

3. Keep each task simple. Use just a few words to direct you.

4. Track your completion of each step.I like to actually check off each box as I complete the step while you might like to strike through the step. However you track it, it is both satisfying and important to track your completion of the steps in the checklist.

5. Have a space for notations . This is usually easier if the checklist is electronic. Be careful not to turn your checklist into a memo. If you need to document information for your record, create a separate memo. However, consider putting a copy of your checklist in with your work product. It can be a good way to confirm you have taken all of the appropri-ate action as well as serving as evidence of your efforts.

6. Use the checklist. More importantly, decide when you will use it. For ex-ample, you will use your established checklist or create a new checklist each time you receive a new matter. Or, it could be that you decide the checklist is implemented on the first occurrence of a certain action (i.e., the prep-aration of a new petition/motion, etc.).

7. Consult the experts. Consider asking others their opinion on the critical steps in reaching the goal. If there is a seasoned attorney or paralegal whose work you admire, consider asking for a time to go over the steps he or she uses to ensure a good work product/desired result. Often you will be able to collaborate with a colleague to put into place a checklist that will benefit the entire department. If you are working on a personal checklist for decluttering a basement, research a professional organizer’s thoughts on the most important steps, etc.

8. Review the protocol and rework the checklist into the perfect goal reaching tool. By revisiting and refining your checklist, you will cre-ate a tool that will help you to accomplish your work in a more efficient manner and without mistakes. Make sure it flows and is organized in a simple one page for-mat that is logical and uncluttered.


LegalAssistant The True Power

of Attorney

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Now that you have a checklist for creating a clear, con-cise, and helpful checklist for any task, consider having a little fun with the creation of the checklist. Many times it can seem a checklist takes all of the creativity out of a process. That does not have to be-nor should it be-true. The checklist is in place to ensure you accomplish each critical step in reaching the intended result. It is there to help enhance your creativity and intelligence, not zap it. I use a green pen to check off the little box next to each step as I complete it. I have a “completed” stamp that I purchased at a local office supply store which I stamp across the entire checklist once I am done. It truly gives me a sick, nerdy little rush to stamp the word “com-pleted” across the checklist. An attorney I know loves to use different colored highlighters to track his progress through his checklist. While you should always stick to the rule of a one-page, logical, and organized checklist, you can take certain creative license in the appearance of your checklist. I do not recommend having a colorful background or a

wild font but you can use a creative format that inspires you. You will surely find the format for creating, and method for completing, a checklist that is most satisfy-ing to you-be creative but focused!

Remember, whether you use a written checklist or a computer-generated checklist (or a combination of both like I do), proper creation and use of this helpful tool will ease your mind and enhance your work. We all have so many tasks to complete in so many areas of our lives. By creating a proper checklist for running a reliable protocol, we can really ease our minds and save ourselves time as we work to accomplish our goals. Let us reduce those uncompleted tasks down into small, logical steps that we can check off our daily “to-do” lists and off our minds.


NAEGELI provides you with an outstanding portfolio of court reporting, video conferencing and trial support services specifically designed to

give you the competitive advantage in your case.

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“Nothing is so fatiguing as the eternal hanging on of an uncompleted task.” ~ William James


CreateA CHECKLIST

FOR ANY PROCESS

16

good litigator can easily derail a case even be-fore a trial starts by using some procedural checks. Here are some of the most common tricks lawyers play in civil litigation and how you can fight back.

Speed

The first strong defensive strategy is to be keenly aware of the philosophy of your side of the case. For example, if you are a plaintiff in a personal injury case or a per-sonal injury lawyer, you may want to get to the end of the case in which you discuss damages and how the ac-cident affected the victim. As you know, the more that the personal injury lawyer spends on the case, the less he or she will actually make if there is recovery. If you are the defendant or the defendant’s lawyer, you likely want to slow the case down so that you can gain lever-age by making the case drag out. If you slow the case

down, the other side may become desperate to settle for less than the case is actually worth. Personal injury law-yers are aware of this tactic and often offer to represent the client on a contingency fee basis so that the client does not have to come up with sizable funds to support the litigation strategy.

Pleadings

Many experienced litigators know that they can play tricks with the pleadings. There are many rules that plaintiffs must follow. They must usually plead as many of the claims as they have and request specific remedies to prevent being barred from making these requests lat-er in the process. Due to the depth of these pleadings, the plaintiff may make conflicting allegations, may omit information or may make typographical mistakes. This leaves the plaintiff open to attack by a defense lawyer

Even for the most experienced of litigators, litigation can be stressful. This is even more true when there is an imbalance in

experience due to an experienced trial lawyer facing off against a young or new lawyer or a pro se litigant.

“Comm

on Tricks Lawyers Play in Civil Litigation” / By H

G.org Legal Resources, Law

Articles


LAWYER’S PLAY

Tricks SOME

IN CIVIL LITIGATION

17

LAWYER’S PLAY

TricksCOMMON

IN CIVIL LITIGATION

who closely looks for these mistakes in order to try to get the case dismissed or to try to lock the plaintiff into a more definite statement. In some cases, this tactic may scare the plaintiff off, causing him or her to drop the case entirely. Even if the plaintiff does not abandon the case, he or she may abandon a particular claim or find it difficult to support that claim moving forward. Some lawyers play a trick on plaintiff ’s lawyers by making ar-guments that require the plaintiff to amend the case so that he or she spends an exorbitant amount in legal fees at the very early stages of the case.

As the plaintiff, a lawyer can help advise you on how to avoid this particular trick. In some cases, it may be pref-erable to plead less so that you clearly state a cause of action but avoid ambush by defense counsel. This usu-ally requires pleading the case law, rules of procedure and some facts regarding the case.

Service of Process

Another trick that defendants play is to try to avoid ser-vice of process. This can aggravate the plaintiff because he or she will likely have to pay for service to be per-fected multiple times or may have to try another form of service of process. If the defendant makes an argu-ment against valid service, the entire case may have to start again, costing the plaintiff more time and money. While there are other ways besides personal service to execute valid service, a judge may side with a defendant if the proper steps were not followed. Therefore, it is im-portant that service is properly executed to avoid this problem.

Discovery

Discovery is a common area for potential tricks. Overly broad requests may result in more information being provided than necessary. Responding by submitting the request in the same manner as they were kept in the or-dinary course of business can also be a trick to bombard the other side with too much information that takes many days to sort through. Making every plausible ob-

jection helps to further delay the case. Using semantics as a form to object or respond in a certain manner with admissions is another popular strategy. Providing par-tial answers or answers that do not directly answer the question are another common trick.

Depositions are another playing field. Skilled litigators can often extract negative information from a witness who is inexperienced, nervous or scared. There are also fewer objections available to the other side’s legal coun-sel, so he or she may be unable to defend the party.

Expert Witnesses

Another trick that litigators play is to retain all of the potential experts as consultants if the field is very lim-ited. This can help prevent the other side from being able to find a qualified expert to represent their client’s interests.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to pro-vide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information pro-vided and related topics, please contact the author.


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