Litigators

Deepak Gupta

It’s an intimidation model. It’s a way for corporations to go after their critics and those who fund them.

Deepak Gupta of Gupta Beck PLLC, lead appellate lawyer for Steven Donziger in Donziger’s never-ending litigation with Chevron, commenting on the oil giant’s hardball tactics and aggressive litigation style (for a lengthy Rolling Stone article about the case).

Raise your hand if you’ve been to Marshall, Texas. It’s on the eastern edge of the Lone Star State, not far south from Springdale, Arkansas, where Jim Bob and Michelle are raising 19 kids (and hopefully no more), and just west of Monroe, Louisiana, where the Robertsons play whack-a-duck every fall.

I see a few hands raised. Vacationing in Marshall, perhaps? No? Visiting family? No?

Then, I bet you’re patent litigators….

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A few weeks ago, I discussed whether it was possible to go paperless. I want to pick up where I left off and drop a few more tips for how to go paperless and why it’s important. For me, as a solo practitioner, I have to be efficient. It’s how I keep an edge over other small firms and how I level the playing ground with big firms. But, it’s not all about competing with others. I reduce my paper use because I am just way too busy to spend 3 hours doing something that I could do in 30 minutes.

Also, just to be clear, when I say “paperless,” I really mean “mostly paperless.” It is not possible or practical to go entirely paperless in this current decade, but I think that the less paper we use, the better.

double red triangle arrows Continue reading “The Benefits of Going Paperless, Part 2″

Relief usually connotes relaxation and release of stress. Not so for a lawyer seeking or challenging a preliminary injunction. Especially when your filing deadline is the day after a holiday you had hoped to spend doing anything, literally anything, other than working….

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Last week’s column discussed the underappreciated role that second chairs play in modern litigation practice. But how best to fill the role, once it is earned?

The easy answer is fanatical preparation. Meaning you will need to prepare for every hearing, no matter how minor, as if you were going to be handling the argument yourself. Or if you are at trial, and supporting another lawyer on the testimony (be it direct or cross) of a witness, preparing as if you were conducting the examination. Apply the “laryngitis test” if you need motivation, as in what would you do if the first chair woke up that morning without a voice? Knowing that you could be thrust into the spotlight on short notice should be motivation enough for thorough preparation.

But you also need to put that preparation to good use. Arguing in open court is difficult, for even the most seasoned advocates. If you are being asked to sit at counsel table, the idea is not for you to admire the wood paneling in the courtroom. The expectation is that you will put your knowledge of the case to work, by anticipating the flow of the argument, and making sure that whoever is arguing has any needed information readily available for immediate use. When your partner is speaking, that means keeping track of whether they will need to refer to a document along the way. Or whether they have forgotten to raise an important point. For that latter reason, working out a non-intrusive note passing system in advance can be worthwhile. The key is not to disturb the flow of the argument, but to enhance its effectiveness. If you have nothing to contribute, you should not be sitting there wasting the client’s money. The need to be “active” does not give license to hijack the hearing or cause distraction, of course. Engaged listening at all times and sparing active participation are the better approach in almost all cases.

double red triangle arrows Continue reading “Beyond Biglaw: Warming the Chair (Part 2)”

As we noted in today’s Morning Docket, the American Lawyer just published an interesting article with a provocative title: Cleary’s Litigation Slump. In the piece, Michael Goldhaber notes some high-profile defeats recently suffered by Cleary Gottlieb, which he cites in wondering whether the super-elite law firm might be losing its courtroom mojo.

The article struck me as a bit unfair to Cleary. Here’s why….

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Ed Sohn and Joe Borstein

Ed. note: Please welcome our newest columnists, Ed Sohn and Joe Borstein of Pangea3, who will be writing about the alternative legal services market and the future of the legal profession.

Stop what you’re doing! Take a journey with us to the alternative side of the legal profession for the next few minutes (and through our ongoing column). There is a revolution happening in the practice of law. And you should join it. Or, at the very least, break out the fanny packs and the binoculars and watch. For now, stop your SmartTimer and get off the clock… because as it turns out, reading this is NOT billable. Maybe try your favorite non-billable code, like “professional development.”

Here’s the newsflash: entrepreneurs and innovators are changing the legal profession for the better, having fun, and making real money in the process. The unstoppable forces of modern business — technology, globalization, the need for sleep/food/conjugal visits — are at the gates and climbing the highly defensible ivory tower….

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There are certain legal skills of critical importance that receive the same level of attention as a mid-summer pilot for a sitcom not expected to make it to the fall slate. In fact, there is usually a disconnect, particularly in Biglaw, between what is “taught” and what lawyers really need to learn as they develop. A recent anniversary of sorts reminded me of an example. Let’s discuss the notably unglamorous, but often critically important, role of “second chair” at a hearing or trial.

For the uninitiated, the typical hierarchy on a litigation matter for lawyers is support (faceless associate research drones), team member (associate or higher who is “on the case” but may not even get to sit at counsel table), second chair (trusty lieutenant, perhaps content in the role, or perhaps gunning for more), and first chair (field marshal winning the war and the peace on behalf of a grateful if lighter-pocketed client.)

August is the anniversary of my first patent trial, well over a decade ago….

double red triangle arrows Continue reading “Beyond Biglaw: Warming the Chair (Part 1)”

Litigators get away with a lot of obnoxious stuff during discovery. For better or worse, the pre-trial discovery phase of civil litigation is every lawyer’s opportunity to relive those times when parents leave kids alone for the first time: every slight, disagreement, and jealousy on a slow boil explodes into anarchic back-biting once there’s no authority figure around to enforce civility. Bring on the mean-spirited letters and smack-talking RFAs.

When it comes to depositions, it doesn’t always reach “fatboy” levels, but a federal deposition isn’t a deposition until someone threatens to call the magistrate — though never does.

Which is why this benchslap, where a federal judge levies a sanction straight out of elementary school, is so appropriate….

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The argument in favor of going paperless.

Let me start out with some harsh truth. When I talk about going paperless, it has almost nothing to do with the environment. There are maybe five lawyers in the whole country who really feel that their printing of exhibits is destroying Mother Gaia and are therefore motivated to go paperless.

For the rest of us, it is a matter of two things: (1) convenience, and (2) efficiency/billable hours. I know it’s weird to see efficiency and billable hours used in the same sentence without a negative in there somewhere, but if you have ever had three hours of time written off for looking all over the whole office for that one document that was dropped on the file clerk’s desk last week, you know what I’m talking about. Sometimes when you charge by the hour, it is good to work efficiently. So, I want to discuss whether it’s possible to go almost completely paperless and what steps we can take to get there.

Why Go Paperless?

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