YLS Network Spring 2012

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SPRING 2012 Indiana State Bar Association Young Lawyers Section Chair’s Message: Don’t forget to take some time for yourself BY JASON A. CICHOWICZ, BERGER GAMMAGE & ASSOCIATES I recently had the opportunity to participate in the swearing in ceremony for all of our new colleagues joining us in the legal profession. As I sat there listening to our Supreme Court justices give advice to our new lawyers, I was very pleased that most of them spoke of learning how to balance work and life. I am no expert on the subject, as I am still learning how to achieve a happy balance, but I feel that lawyers have to work harder to find that balance because of the demands of our profession. When you consider that the billable hour is the very core of the legal profession’s business model, it is a wonder that we—as lawyers—are able to strike a happy balance between work and life. There is only so much time in a day and unfortunately not every task can be billed to a client. I am going to save the debate on the merits of the billable hour model for another day, but as you organize your day I suggest that you build in some time for the oft-neglected priorities— you and your family. Just for a moment, let us forget about the business aspect of law and consider what most lawyers deal with on a daily basis. The stark truth is that lawyers typically deal with other people’s problems all day. People rely on lawyers to help them with their most stressful situations. It does not matter if you practice criminal law, family law, or complex business transactions—you will undoubtedly experience the stress that accompanies the practice of law at some point. Compounding this problem is that most lawyers are typically working on multiple cases at one time. Based on the foregoing, I think we can all agree that it is important for lawyers to have proper mental health in their own lives if they are to manage the problems of others. Outside the practice of law, most lawyers are also called upon to be involved in various community and legal organizations that lend a helping hand to those in need. I have been encouraged to discover that most lawyers are willing to help. However, this help does not come without a cost, and the price is your time. I participate in many different organizations and donate my time on a regular basis, but on occasion I have been asked to participate and have had to decline because of the time commitments. At some point you have to realize that, even though you may desire to do so, you simply cannot participate in everything— you have to draw the line somewhere. I leave you with a few final thoughts. First, most seasoned attorneys and judges that I have spoken with, including the Supreme Court justices, will tell you that achieving a proper work-life balance is one of the most important things in developing a successful career. Second, try not take on more than you can handle. It is great to participate in an organization or take pro bono cases, but make sure that you have the time to devote. If you do not have the time, learn how to politely decline the offers—your family with thank you. My final thought, which is really more of a request, is that I ask you to take some time for yourself and do whatever it is that you enjoy. Put down your cell phone, stop checking Facebook, stop responding to emails, and stop talking on the phone just for a moment and go see an old friend, spend some time with your family, or just have some quiet time on your own— learning to do so is the first step in achieving a work-life balance. Jason A. Cichowicz is an attorney at the South Bend firm Berger Gammage & Associates and serves as the 2011-2012 chair of the ISBA’s Young Lawyers Section. Jason can be reached at jasoncichowicz@ yahoo.com. Advice for young lawyers defending criminal cases BY JOEL SCHUMM, INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW T his column offers candid advice for those relatively new to the practice of criminal law based on conversations with judges and new lawyers, as well as my own experience. Communicating with Clients Clients charged with a crime sometimes have very high expectations. Beginning your representation with a full client interview will provide invaluable information and send a strong signal to your clients that you genuinely care about their case. As the case progresses, clients or family members may call your office repeatedly, even if no hearing is scheduled for several weeks. Rather than becoming frustrated, try to put yourself in your client’s shoes. Imagine the hopelessness of sitting in a jail cell or the confusion of facing a criminal allegation. Rather than exacerbating the situation by not returning calls or becoming short after the third or fourth call that seems to cover the same ground, try to lay out expectations and timelines clearly from the outset. If the next court hearing is not for four weeks, make sure your client understands what you will be doing on the case in the interim. Consider explaining things clearly but succinctly in a letter, which will allow easy future reference by the client. Finally, remember your obligations under the Rules of Professional Conduct. Rule 1.4 requires lawyers to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished; keep the client reasonably informed about the status of the matter; [and] promptly comply with reasonable requests for information,” among other things. Taking a few minutes to maintain communication with clients will not only make clients much happier—it will also reduce the prospect of disciplinary action. Preparation is Key One judge offered the following sage advice: “A young lawyer’s success will be directly proportional to the thoroughness of the lawyer’s preparation.” The judge suggested that young lawyers write down every question that occurs after the initial file review of each case, no matter how trivial or off-the-wall. Then continue to write down new questions as they arise throughout the case. Although this technique sounds simple, it requires considerable thought, patience, and creativity. Applying it will help you gain confidence about your knowledge of the case and provide a better understanding of how much more about the case you need to learn. Lawyers who (continued on page 2)

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YLS Network Spring 2012

Transcript of YLS Network Spring 2012

SPRING 2012Indiana State Bar Association Young Lawyers Section

Chair’s Message: Don’t forget to take some time for yourselfBy Jason a. CiChowiCz, Berger gammage & assoCiates

I recently had the opportunity to participate in the swearing in

ceremony for all of our new colleagues joining us in the legal profession. as i sat there listening to our supreme Court justices give advice to our new lawyers, i was very pleased that most of them spoke of learning how to balance work and life. i am no expert on the subject, as i am still learning how to achieve a happy balance, but i feel that lawyers have to work harder to find that balance because of the demands of our profession.

when you consider that the billable hour is the very core of the legal profession’s business model, it is a wonder that we—as lawyers—are able to strike a happy balance between work and life. there is only so much time in a day and unfortunately not every task can be billed to a client. i am going to save the debate

on the merits of the billable hour model for another day, but as you organize your day i suggest that you build in some time for the oft-neglected priorities— you and your family.

Just for a moment, let us forget about the business aspect of law and consider what most lawyers deal with on a daily basis. the stark truth is that lawyers typically deal with other people’s problems all day. People rely on lawyers to help them with their most stressful situations. it does not matter if you practice criminal law, family law, or complex business transactions—you will undoubtedly experience the stress that accompanies the practice of law at some point. Compounding this problem is that most lawyers are typically working on multiple cases at one time. Based on the foregoing, i think we can all agree that it is important

for lawyers to have proper mental health in their own lives if they are to manage the problems of others.

outside the practice of law, most lawyers are also called upon to be involved in various community and legal organizations that lend a helping hand to those in need. i have been encouraged to discover that most lawyers are willing to help. however, this help does not come without a cost, and the price is your time. i participate in many different organizations and donate my time on a regular basis, but on occasion i have been asked to participate and have had to decline because of the time commitments. at some point you have to realize that, even though you may desire to do so, you simply cannot participate in everything—you have to draw the line somewhere.

i leave you with a few final thoughts. First, most seasoned attorneys and judges that i have spoken with, including the supreme Court justices, will tell you that achieving a proper work-life balance is one of the most important things in developing a successful career. second, try not take on more than you can handle. it is great to participate in an organization or take pro bono cases, but make sure that you have the time to devote. if you do not have the time, learn how to politely decline the offers—your family with thank you. my final thought, which is really more of a request, is that i ask you to take some time for yourself and do whatever it is that you enjoy. Put down your cell phone, stop checking Facebook, stop responding to emails, and stop talking on the phone just for a moment and go see an old friend, spend some time with your

family, or just have some quiet time on your own—learning to do so is the first step in achieving a work-life balance.

Jason A. Cichowicz is an attorney at the South Bend firm Berger Gammage & Associates and serves as the 2011-2012 chair of the ISBA’s Young Lawyers Section. Jason can be reached at [email protected].

Advice for young lawyers defending criminal casesBy Joel sChumm, indiana university roBert h. mCKinney sChool oF law

This column offers candid advice for those relatively new to the

practice of criminal law based on conversations with judges and new lawyers, as well as my own experience.

Communicating with ClientsClients charged with a

crime sometimes have very high expectations. Beginning your representation with a full client interview will provide invaluable information and send a strong signal to your clients that you genuinely care about their case. as the case progresses, clients or

family members may call your office repeatedly, even if no hearing is scheduled for several weeks. rather than becoming frustrated, try to put yourself in your client’s shoes. imagine the hopelessness of sitting in a jail cell or the confusion of facing a criminal allegation. rather than exacerbating the situation by not returning calls or becoming short after the third or fourth call that seems to cover the same ground, try to lay out expectations and timelines clearly from the outset. if the next court hearing is

not for four weeks, make sure your client understands what you will be doing on the case in the interim. Consider explaining things clearly but succinctly in a letter, which will allow easy future reference by the client. Finally, remember your obligations under the rules of Professional Conduct. rule 1.4 requires lawyers to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished; keep the client reasonably informed about the status of the matter; [and] promptly

comply with reasonable requests for information,” among other things. taking a few minutes to maintain communication with clients will not only make clients much happier—it will also reduce the prospect of disciplinary action.

Preparation is Keyone judge offered

the following sage advice: “a young lawyer’s success will be directly proportional to the thoroughness of the lawyer’s preparation.” the judge suggested that young lawyers write down every

question that occurs after the initial file review of each case, no matter how trivial or off-the-wall. then continue to write down new questions as they arise throughout the case. although this technique sounds simple, it requires considerable thought, patience, and creativity. applying it will help you gain confidence about your knowledge of the case and provide a better understanding of how much more about the case you need to learn. lawyers who

(continued on page 2)

insurmountable. you cannot “win” every case and should not lose sight of the important but more routine parts of a case. Plea negotiation and sentencing, for example, can make a big difference when done correctly. always remember the client’s interest, which may not match your own, and advising about the collateral consequences of pleading guilty, which will often follow clients for a lifetime.3

Joel Schumm is a Clinical Professor of Law at the Indiana University Robert H. McKinney School of Law where he directs the Court Externship Program, supervises students in the Appellate Clinic, and teaches Legal Analysis, Research, and Communication.

1. See generally Upton v. State, 904 n.e.2d 700, 705–06 (ind. Ct. app. 2009).

2. http://www.in.gov/ipdc/general/memberinfo.html.

3. See, e.g., James J. Bell & Kathleen e. rudis, Advising Criminal Defendents in Indiana of Potential Collateral Consequences of a Guilty Pleas in the Aftermath of Padilla v. Kentucky, Res Gestae, apr. 2011, at 10.

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regularly apply this technique will be more prepared than their opponents and will often reap favorable results before trial.

Details Matterattention to detail is

important from your initial case review through trial (and, if necessary, appeal). even one word in the charging information, for example, can make an enormous difference in a case. the date of the offense, for example, may give rise to a statute of limitation defense or qualify a client as a credit restricted felon.1 thorough investigation and review of discovery, even seemingly small details, may ultimately make a difference between acquittal and conviction.

at trial, attention to detail is essential when introducing exhibits, impeaching witnesses with prior inconsistent statements, or making objections, as more than one judge emphasized. detailed rule-based objections with clear explanations of how the rule applies make for a more reasoned argument between the parties, better decisions by the judge, and better records for appellate courts. you should strive to anticipate key objections before trial and prepare responses grounded in the evidence rules in advance. review foundational requirements and impeachment techniques and practice them before trial (on a walk, in the shower, or wherever you have a spare moment). Preparation impresses a judge and a jury—and often helps win cases.

Know the Court, its Rules, and Expectations

Few lawyers have the luxury of appearing before the same judge all the time. those who do will likely have a clear understanding of the

court rules and expectations, as well as some idea what the judge is likely to do in a given case. lawyers who have never or seldom appeared before a judge will not have the same advantage but nevertheless can be very effective advocates. if you are appearing for the first time before a judge, you should make an effort to introduce yourself to the judge before appearing in court. one judge emphasized the importance of meeting a new judge, especially when a case is set for trial to ask about the specific rules governing such things as jury selection, where individual practices may vary considerably. you should also review any court-specific rules posted in the court office or available online. Consider asking lawyers who appear regularly before the judge (a public defender assigned to the courtroom is an especially good resource) for their insight as well. a few minutes of research and introductions are a wise investment.

a corollary that should require no explanation: be nice to the judge’s staff. as

someone who spent nearly four years working for a trial court judge during law school can attest, judges talk regularly with their staff, who often play a key role in scheduling your hearing and deciding how soon your motion is reviewed.

Important Resourcesspend a few minutes

each day keeping abreast of new cases by checking the indiana supreme Court’s website or reading a legal blog. you do not want to be the lawyer in court who says “huh?” when the judge and prosecutor are discussing an important new case—or worse yet, the lawyer whose client is harmed because an argument based on a recent case was not raised.

lawyers who accept appointments to represent indigent defendants can complete a simple form and become members of the indiana Public defender Council.2 iPdC maintains a very active listserv, publishes excellent manuals on numerous topics (including appeals, confessions, criminal

trial law, evidence, jury instructions, immigration consequences, juvenile delinquency, motions manual, pretrial manual, sentencing, and search and seizure), offers consultation and expert information and referrals, and conducts several training seminars each year. even private defense counsel can take advantage of the training and manuals.

Realizing Limitationsif you seldom practice

criminal law, do not assume it is easy. Just because a client wants to hire you does not mean you should accept the case. although most lawyers are able to research a legal issue, gaining the necessary understanding of dna or arson science is not easily done. sometimes you must seek out help or co-counsel from an experienced lawyer. do not let the prospect of a smaller fee for you take precedence over effective representation of a client.

Maintaining PerspectiveFinally, although the

stakes are high in criminal cases, the facts are sometimes

STAyIng OuT Of TROubLE(continued from page 1) Prior to being selected

to participate in the inaugural Class of the

isBa leadership development academy (“lda”), i had already formed the opinion that the isBa offers young lawyers in indiana an unparalleled panoply of opportunities to network, engage in service, participate in Cle programming, find a mentor, and—generally speaking—become intimately involved in the indiana legal community. however, with the inaugural Class having graduated on may 19 in Fort wayne, it has become evident that the isBa’s recently-created lda provides young lawyers a truly unique experience. the program seeks to empower and develop young lawyers to be informed, committed, and involved—and not just in state and local bar associations. the lda anticipates that its graduates are the future leaders of local communities, civic and charitable organizations, and, ultimately, the state of indiana.

while the lda’s goals are lofty, a cursory examination of the programming, events, and opportunities offered by the lda demonstrates that the isBa has the support, resources, and talent to train future generations of indiana leaders. Consider some of the experiences of the inaugural Class:

• Meeting and working with all five indiana supreme Court Justices. these meetings were not merely handshakes, smiles, and nods—they involved collaboration, discussion, and the sharing of wisdom. Justice david, a member of the lda Committee, attended nearly every session and took the time to get to know every member of the Class;

• Discussing leadership and policy with indiana state legislators, the attorney general, and the solicitor general, and attending an indiana legislative session;

• Engaging in lively debate and discussion about diversity in leadership with prominent local leaders in gary;

• Attending an Indiana Court of appeals argument and discussing law, life, and leadership with indiana appellate court judges;

• Perhaps the “crowd favorite,” travelling to the muscatatuck urban training Center, where lda members received an aerial tour in a Blackhawk helicopter (awesome), attended an afghan cultural dinner with Foreign service officers (eye-opening),

and discussed the military, leadership, and service with military and FBi personnel (inspiring); and

• Learning about and discussing important education and public finance issues with indiana politicians and leaders in Fort wayne.

as is evident from the foregoing, part of the success of the lda program is providing class members an opportunity to work with and learn from the best, brightest, and most prominent leaders in the state. the other aspect of the program is the opportunity for class members to put their freshly-honed servant leadership skills to the test by conceiving, planning, and implementing a service project. the inaugural Class delivered on

this aspect of the program in magnificent fashion. not only has the inaugural Class, in its short existence, exemplified servant leadership by forming a standing committee on service in the isBa, but it is also engaged in community building by planning and implementing a park service project in evansville to celebrate and honor the recently-retired Chief Justice randall t. shepard. to the extent it is not obvious by this point, my message is clear: if you are looking for an opportunity to forge lasting relationships, network with prominent attorneys, judges, and leaders, learn valuable servant leadership skills, and travel around the state and learn about issues and problems hoosiers face, i strongly encourage you to apply for the isBa lda in the Fall of 2012.

i am humbled by the incredible effort put into making the program a success (mostly by the hard work and dedication of the isBa’s Catheryne Pully), and am grateful for the life-long friendships i have gained through this experience. details for the 2013 isBa lda class will be available this fall in the isBa e-Addendum and the YLS Network. i hope that you will consider applying for the isBa lda.

Editor’s note: The ISbA Leadership Development Academy offers unique opportunity for young lawyersBy Casey C. KannenBerg, Bingham greeneBaum doll llP

The inaugural class of the State Bar’s Leadership Development Academy convened for its third session at the Muscatatuck Urban Training Center in April and got to ride in a U.S. Army Blackhawk helicopter.

• encouraging greater respect for the law and the courts;

• stimulating a deeper sense of responsibility so that citizens recognize their duties as well as their rights;

• contributing to the effective functioning of our institutions of government;

• fostering a better understanding and appreciation of the rule of law.

this is your opportunity to focus on a local community leader who may not receive public recognition of his or her accomplishments.

Send your nominations to: Carissa longindiana state Bar associationone indiana square, suite 530indianapolis, in [email protected]

The young lawyers section will present the following awards at the

state Bar’s annual meeting in indianapolis in october. For more information and/or nomination forms, contact the isBa at 800.266.2581 or visit www.inbar.org.

Outstanding young Lawyernominated candidates

will exemplify the virtues embodied in the oath required of all indiana attorneys when admitted to the bar.

to nominate a young lawyer, complete the nomination form and include a letter explaining why you believe your nominee should be considered for the award. an attorney qualifies as a young lawyer if he or she is under 36 years of age or has less than six years of legal

experience. if you prefer that your nomination remain anonymous, please advise, and we will honor your request.

Outstanding Judge Awardthe isBa young lawyers

section is accepting nominations for the 2012 outstanding Judge award. the criteria for the award are as follows:

1. the nominee provides substantial education or mentoring to young lawyers.

2. the nominee fosters civility among those attorneys who practice before the bench.

3. the nominee epitomizes the core values of our profession – honesty, competence and respect for the judicial system.

4. the nominee has a recognized reputation for providing service to the local community.

the names of those submitting nominations for consideration shall be kept confidential to avoid any appearance of impropriety. only current judges are eligible for this award.

Liberty bell Awardthe liberty Bell award

celebrates community service that strengthens our system of freedom under law. traditionally this award has been presented to non-lawyers who have rendered outstanding service to their communities in any of the following areas:

• promoting a better understanding of our Constitution and the Bill of rights;

ISbA achievement award nominations sought - Nominations due July 31, 2012

Many consumers sign up for group coupon marketing,

such as groupon, living social, daily deal, and many others. therefore, a question arises as to whether lawyers can ethically advertise on these platforms. according to Formal ethics opinion no. 1 of 2012, the legal ethics Committee of the indiana state Bar association (the “ethics Committee”) finds that “such social media marketing is fraught with peril and is likely not permitted in its current form under the indiana rules of Professional Conduct.” there are several key areas of concern identified for the reader, such as the duties involved in forming the lawyer-client engagement, safekeeping the client’s property, and the prohibition on fee sharing.

Lawyer-Client Engagementa lawyer is required to

evaluate conflicts of interest prior to acceptance of representation.2 in addition, a lawyer must exercise independent professional judgment and render candid advice when representing a client.3 moreover, a lawyer cannot delegate the responsibility for establishing an attorney-client relationship.4 there is concern that attorneys, through group coupons, could inadvertently create attorney-client relationships without adhering to these rules and guidelines. moreover, the creation of these relationships may create conflicts of interest with other clients.

Safekeeping Client’s Property

rule 1.15 provides guidance concerning the safekeeping of a client’s property. advance payment of fees and expenses are to be placed into a trust account.5

however, many social media marketing companies receive and hold the money provided by the consumers.the marketing companies share only a percentage of the fees with the vendor (here, an attorney), and often distribute the funds incrementally over time.

a related concern is that rule 1.16 requires a lawyer to refund any unearned fees or expenses to the client upon termination of the attorney-client relationship.6 Because the lawyer might not have the client’s funds when the relationship is terminated, the lawyer would have to provide money from her operating account. moreover, the ethics Committee believes the proper refund is 100 percent of the fee (regardless of the portion received by the lawyer).7

fee Sharing Issuesrules 5.4 and 7.2 prohibit

fee sharing with non-lawyers and paying others to channel professional work to a lawyer. rule 7.2(b)(1) permits an attorney to pay “the reasonable costs of advertisements or communications.”8 nevertheless, some of the group coupon marketing sites charge 50 percent of the coupon as their fee, regardless of their actual “costs” of sending the advertisements. therefore, the ethics Committee cautions that the social marketing contracts might violate rule 7.2(b)(1) because the fees charged by the marketers are not tied to the “reasonable costs” of the advertisements.

Conclusionthe ethics Committee

concludes that group coupon marketing is likely not appropriate for indiana attorneys. the ethics Committee suggests that lawyers should “conduct rigorous research before entering into such an advertising arrangement,” and to “employ competent, private counsel to guide the lawyer through the dangers inherent in such marketing.”

a full copy of Formal Ethics Opinion No. 1 of 2012 can be found at the indiana state Bar association website. http://www.inbar.org/Portals/0/downloads/appellate/Legal_Ethics_Committee_Op-1-2012.pdf.

the reader is also recommended to read the ethics Committee’s article, Legal Ethics Involved in Online Social Media and Networking: An Overview, which appeared in the march 2011 issue of Res Gestae. this article can be found at: http://www.inbar.org/Portals/0/downloads/legal%20news/social-media-ethics.pdf.

Alice Morical is a partner at Hoover Hull LLP. She regularly defends attorneys and their firms from allegations of legal malpractice.

Patrick Olmstead is an associate at Hoover Hull LLP. He is a member of the Legal Ethics Committee, Chair of the Ethics Hotline, and was one of the principal authors of the Group Marketing Opinion. He defends attorneys and firms against allegations of legal malpractice and before the Indiana Disciplinary Commission.

1. third in a series of articles concerning ethics (first to appear in the YLS Network)

2. See ind. r. Prof. Conduct 1.7, 1.18.

3. See id. r. 2.1.

4. See guideline 9.3 for use of non-lawyer assistants.

5. ind. r. Prof. Conduct 1.15(c).

6. Id. r. 1.16.

7. the new york state Bar association Committee on Professional ethics concurs that a full refund is required in ethics opinion 897, released on december 13, 2011.

8. ind. r. Prof. Conduct 7.2(b)(1).

4 5

twitter.com/indianastatebar

facebook.com/indianastatebar

www.inbar.org

linkedin.com/companies/indiana-state-bar-association

group Coupon Marketing1

By aliCe moriCal and PatriCK olmstead, hoover hull llP

Effective deposition skills are an important tool for young civil litigators.

depositions represent an opportunity to advance your case and achieve a positive result for your client. each litigator will develop his or her own style over time, but for young lawyers there are several aspects of depositions that should be a focus during their first few depositions.

• Confirm the court reporter. if you are taking the deposition, confirm the court reporter. as a seasoned litigator and mentor frequently reminds me, get confirmation that you have a court reporter in writing. you do not want to be the young lawyer sitting in a room with opposing counsel and a witness wondering why there is no court reporter. this may seem obvious, but it is a mistake you only have to make once to understand.

• Listen. the number one rule for young lawyers taking depositions is to listen. many young lawyers taking their first depositions fail to listen to the answers being given by the witness. one of the primary purposes of the deposition is to discover information. do not get so caught up in your outline or notes that you forget to pay attention to the answers being given. given the opportunity, witnesses will lead you to new information and avenues of questioning that you may not have considered. Follow these lines of questions to their conclusion. you can then return to the portion of your notes or outline that you were exploring before the witness led you to new information. in your first few depositions, it is important to focus on not getting stuck in your notes, outline, or checklist.

while a well-prepared and organized set of notes is vital for a good deposition, be very leery of writing out all of your questions, word for word, in advance.

• Know the objectives of your deposition. depositions serve to accomplish several important goals. when approaching depositions, lawyers often think “impeachment at trial.” discovery depositions are not cross-examination. getting specific admissions from a witness is valuable, but depositions are also about discovery. in certain circumstances, you may simply need to ask a series of leading questions to establish your record for a dispositive motion. locking a witness into a story is important. Be precise with your questions, particularly in terms of time period. on the other hand, many depositions should focus on open-ended questions that invite the witness to talk. as noted above, witnesses will lead you to new information and avenues of discovery that you may not have considered. moreover, discovery depositions are useful in sizing up a witness for trial. For instance, you can learn a lot about a witness when they are testifying about their history, education, or experience. does this witness exaggerate? Bend the truth? utilize depositions to “feel out” adverse witnesses and assess their credibility. Clients will appreciate your opinion as to the general veracity of a witness, particularly when considering settlement options. Finally, know whether the deposition is designed to preserve testimony for trial. this is particularly so if the deposition is being videotaped. your deposition

strategy must be modified if you know that it will be played for a jury. For instance, if the jury is going to view the deposition, avoid being overly hostile or obstructive. this can quickly burn your credibility with a jury.

• Know the pleadings, records, and/or previous discovery. review the pleadings and be sure to understand the elements of all claims or defenses at issue. research relevant statutory authority or case law to understand what elements must established to prove or disprove those claims or defenses. review prior interrogatory responses and deposition transcripts to develop topics for questioning and discussion. double-check procedural and local rules in case disputes arise. if possible, and particularly for expert witnesses, research prior deposition or trial testimony, qualifications and experience, and/or public records.

• Be aware of available objections. typically, all objections are preserved for trial except an objection to the form of the question. an objection to the form of the question can be based on several things. the question could be argumentative, compound, ambiguous, or speculative. sometimes, though, lawyers will ask questions using facts or information that have not been established. this is the classic objection based on a question that “assumes facts not in evidence.” similarly, it is proper to object when a question improperly characterizes facts or previous testimony. again, when you are defending a deposition the number one rule is to listen. each side has their own view as to the facts

of the case. do not allow the opposing attorney to establish a record setting forth “their” version of the facts. your witness is there to testify as to those facts, so do not allow opposing counsel to put words in your witness’ mouth.

• Get disputes on the record. do not be deterred by opposing counsel that does not feel it is necessary to record a discovery or other dispute. should the issue arise in the future, you will want to have your record available in support of your position. you have the right to make your record, so take the opportunity.

• Think about the pace of the deposition. strategic pauses can be a useful tool. witnesses, particularly inexperienced witnesses, will often interpret silence to mean that their previous answer was inadequate or incomplete in some way. well-timed pauses can invite witnesses to qualify or explain their previous answer and volunteer information.

• Final tips. a common problem young lawyers face is handling a response

of “i don’t know” or “i don’t remember.” typically, you will want to respond by asking whether there is any document you could show the witness that would refresh their recollection. alternatively, ask the witness whether there is any document that contains the information. also, it is good practice when wrapping up a major topic or line of questions to ask a catch-all question such as whether the witness “has told you everything they can recall about that topic/issue” or whether the witness “has described all of the damages they are alleging in this case.” last, but certainly not least, avoid useless transition phrases like “ok”, “uh-huh” or “umm”.

there are no hard and fast rules for depositions. each lawyer must develop his or her own style, though it is important to be yourself and do not try to be someone you are not simply because you are taking a deposition. ultimately, as with everything else in the practice of law, preparation is the key.

Object to the form: thoughts and tips on depositions for young lawyersBy Kevin a. morrissey, lewis & KaPPes

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100ISBA Members get $100 OFF!Former Judge Robert L. Miller, Sr. accepts a check for $3,000 from the State Bar’s Young Lawyers Section on behalf of the Center for the Homeless in South Bend. On May 19, the YLS held its annual golf scramble where it committed 100 percent of its proceeds to the veteran’s center.

ISBA - YLS Calendar of Events

YLS Council Meeting | Chicago

YLS-Law Student Meet & Greet | Bloomington

YLS Council Meeting | Bloomington

Applied Professionalism Seminar | Indianapolis

ISBA Annual Meeting | Indianapolis

Aug. 4

Sept. 7

Sept. 8

Sept. 21

Oct. 24-26

young Lawyers SectionIndiana State bar AssociationOne Indiana Square, Suite 530Indianapolis, In 46204

PRE-SORTEDSTANDARDU.S. Postage

PAIDIndianapolis, INPermit No. 1142

young Lawyers Section Council 2011 - 2012OffICERS

ChairJason a. Cichowicz, south [email protected]

Chair-Electreynold t. Berry, [email protected]

Secretary/Treasureranthony m. rose, south [email protected]

Immediate Past Chairmichael J. Jasaitis, Crown [email protected]

DISTRICT REPRESEnTATIVES

District 1ryan r. Kutansky, highland [email protected]

District 2michael e. tolbert, merrillville [email protected]

District 3victoria r. wolf, south [email protected]

District 4alisa J. Pearson, Fort [email protected] 5Candace armstrong, Brook [email protected]

District 6Casey C. Kannenberg, [email protected]

District 7thomas s. Clary ii, terre haute [email protected]

District 8James e. gentry, Jr., [email protected]

District 9aaron m. Johnson, new [email protected]

District 10Vacant

District 11alex gude, [email protected]

AT LARgE REPRESEnTATIVES

matthew J. light, noblesville [email protected]

tonya r. shaw, washington [email protected]

Benjamin d. Fryman, [email protected]

david lynch, west [email protected]

andrea Ciobanu, indianapolis [email protected]

andrew J. wells, [email protected]

lumi nodit, [email protected]

alexander J. Platte, Fort [email protected]

adam J. sedia, [email protected]

COunSEL TO ThE ChAIR

John a. rulli, south [email protected]

MARIOn COunTy bAR LIAISOnamber nicole ying, [email protected]

InDIAnAPOLIS bAR LIAISOndavid a. adams, [email protected]

LAw SChOOL LIAISOnSIU School of Law - IndianapolisBeau zoeller, [email protected]

alyssa taylor, [email protected]

IU School of Law - Bloomingtonadam r. doerr, [email protected]

Notre Dame Law Schoolvacant

Valparaiso University School of LawCharles e. Bush, [email protected]

ISbA STAff LIAISOnCarissa long, indianapolis [email protected]

SPRING 2012Indiana State Bar Association Young Lawyers Section

EDITORCasey C. Kannenberg • [email protected]