Friday, February 20, 2015

ARTICLE: Improve Your Practice, Reduce Stress, and Prevent Nightmares

The below article of mine was published in the February 9, 2015 edition of the Pennsylvania Law Weekly and is republished here with permission from the publisher, American Law Media.  All rights reserved.       
Legal Profession

Improve Your Practice, Reduce Stress and Prevent Nightmares

, The Legal Intelligencer             
We are all getting older, and possibly more forgetful. Here, then, is a list of some things to remember to improve your practice, reduce stress and prevent late-night terrors.

Check Statute of 
Limitations Date

Make sure you emphatically highlight the statute of limitations date on any new case that comes in and continually check that date every time you look at the file, up to the time suit is formally commenced. Once suit is commenced, don't fully relax in this regard until service on all defendants is perfected.

Similarly, on the defense side, when a new file comes in, counsel should not assume that the statute of limitations has been satisfied merely because the new suit has made its way to counsel's office for a defense. In addition to checking if the suit was filed in time, don't forget to also check if service was properly perfected.

Moreover, remember to also review the complaint to confirm that the suit was filed in the proper county so as to prevent any forum-shopping by the plaintiff.

Keep Clients Apprised

It has been repeatedly stated that the main client complaint on either side of the bar is the lack of timely communication and updates from counsel.

Rule of Professional Conduct 1.4 requires that a lawyer communicate with a client and keep the client updated. The Pennsylvania Bar Association's Working Rules of Professionalism recommend the same.

One way to avoid forgetting (or avoiding) continual updates to clients would be to set up a process where, on the first (or last) day of every month, you stand in front of your filing cabinets with a portable dictaphone in hand and spit out a short status update to each client in each file. More sophisticated attorneys who have brought their file handling into the 21st century can do this while sitting in front of their computers and scrolling through their files.

This may sound like a daunting, boring task, but once you start to do it, your letters and emails in the subsequent months will flow out smoothly and quickly and you will become very aware of the status of all of your cases from this repeated checking and reporting.

Review Pleadings and Interrogatory Answers 
with Witnesses

At depositions, once you have exhausted all of your standard questions, take a moment to review the pleadings and interrogatory answers of the opposing party. Such a review may trigger additional important questions to ask.

At a minimum, secure an agreement from the witness that he or she reviewed the pleadings and the discovery and that the signature on the verification is indeed the signature of the witness. Take it one step further and secure the witness' agreement that by signing the verification, he or she agrees that the information is true and correct to the best of his or her knowledge.

Get Answers to Expert Interrogatories

Expert interrogatories are generally sent out to opposing counsel as a matter of course at the beginning of a file. Opposing counsel usually replies to such interrogatories by indicating, "No experts retained to date. Discovery ongoing. Right to supplement and all objections preserved." The expert interrogatories are then forgotten.

Few things are more frustrating in civil litigation than fully preparing to cross an opponent's expert at a trial deposition but being unable to show bias of that expert toward the party because you forgot to follow up on securing complete answers to your expert interrogatories. Typically, an opposing expert will coyly assert that he or she cannot recall what his or her fee was to generate the report or to participate in the deposition.

So, when a file reaches the point where expert reports are produced, remember to follow up with opposing counsel to request that the expert interrogatories previously submitted be supplemented as promised or as required under Pennsylvania Rule of Civil Procedure 4007.4 or Federal Rule of Civil Procedure 26(e).

If necessary, file a motion to compel and request permission of the court to file Cooper v. Schoffstall expert interrogatories to discover the extent to which a "professional witness" expert has previously participated in litigation and has financially gained from it.

Arguably, if the opposing counsel has not previously objected to your expert interrogatories within 30 days of having received such interrogatories, any objections are waived.

This gives rise to another point: Don't forget to send out valid objections to your opponent's expert interrogatories the day you receive those interrogatories to avoid a waiver argument down the road.

Put Rule 238 Language in Settlement Offer Letters

When making any settlement offers to a plaintiff in any personal injury civil litigation matter, defense counsel should remember to include, verbatim, the language required by the delay damages rule, Pennsylvania Rule of Civil Procedure 238, so as to put a cap upon, or even prevent, the addition of such damages to any verdict.

Rule 238(b)(2) provides that, in order to have any effect under this rule, a written offer of settlement "shall contain an express clause continuing the offer in effect for at least 90 days or until commencement of trial, whichever occurs first," and the offer shall be set forth as a specific sum or in the form of a structured settlement.

Several courts in Pennsylvania have ruled that the word "shall" in Rule 238 requires that such language comport to the exact wording set forth in the rule in order to be valid. As such, don't forget to dictate the verbatim Rule 238 language into a form paragraph.

Accordingly, whenever you send out a settlement offer, ask your assistant to include the form Rule 238 paragraph in the letter so as to comply with the rule and potentially limit the plaintiff's recovery.

Stand When Addressing 
the Court

Apparently, showing respect to the court and members of the bench is a dying trend. Seasoned attorneys may become casual with the traditions of the courtroom, while new lawyers may somehow believe that the nonsense they see in courtroom scenes of television legal dramas is acceptable.

So don't forget to always stand whenever you address the court for whatever reason. When commencing an argument, it is traditional to begin with, "May it please the court." Throw in some, "Yes, your honor," and, "No, your honor." Don't forget to ask for permission to approach a witness.

Moreover, no matter what, whenever a judge starts speaking, stop whatever you are saying no matter how eloquent you may be. If a judge asks you a question, listen to that question and, more importantly, directly answer that question. Judges are lawyers like us and know when their questions are not being answered, so don't even try it.

Mimic Jury Instructions in Your Closing Argument

When preparing for a closing argument at trial, don't forget to review the jury instructions, standard or otherwise, that you know or can reasonably anticipate will be utilized by the court. Incorporate some of the verbatim language, or key phrases, from the instructions that are favorable to your case into your closing argument and say those same words and phrases to the jury.

Perhaps nothing will make you seem more trustworthy to the jury, or that you know what you are talking about, than having the judge say many of the same things in his jury instructions that you just said in your closing argument.

Take Care of Yourself

Perhaps more important than anything else in this article, don't forget to take care of yourself. If you are not in good mental and physical shape, your practice won't be in good shape.

We are at the beginning of a new year. Look ahead and plan some time off now while your calendar is clear. Mark those days or weeks as "Keep Open" or "Vacation." When you do take that time off, forget your phone.

And don't limit yourself to only those days off—take other days along the way if your schedule and time should permit for brief respites (perhaps with your phone at hand to keep emails at bay and matters moving along).

Eat well and make sure you secure sufficient sleep. Exercise, or at a minimum, as some fitness articles suggest, stand every time you are on the phone at your desk. Take a daily brisk walk after lunch. Join a gym, or join the yoga/meditation trend, for stress relief and good health habits.

Say Please and Thank You

Last, but certainly not least, don't forget to say "please" and "thank you" whenever you can throughout your day.

Say it to opposing counsel. What goes around, comes around. Kindness begets kindness.

Say it to the court. But don't say "thank you" whenever you win an objection—that's just plain tacky. While in court, don't forget to be equally polite to other court personnel, such as tipstaff, clerks, court reporters and the like. Those people have close contact with and regularly converse with isolated judges. Perhaps they will portray you in a positive light to the judge, which, in the end, will benefit your clients.

Perhaps most importantly, always say "please" and "thank you" to your co-workers and office staff—that is, the ones who make things go smoother for you day in and day out. 

Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at

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