DRESSING WELL IS DRESSING ‘RIGHT’

DRESSING WELL IS DRESSING ‘RIGHT’

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All aphorisms and adages are false when taken to be universal. Some adages have wisdom.

Here is an old one for attorneys:

Orderly appearance, and therefore dress, among other things, tends to lead to (and is often a necessary condition) for more successful practice. (Heretofore, anyway.)

This is disappointing for those who love seeing themselves as rebellious, dissenters, radically independent, living at the edge of society, among those free spirits who are criticizing the orthodox order, e.g., for being pointlessly rigid.  The trouble is that even bohemians and vagabonds like their lawyers to appear to be orderly, since they symbolize the law itself.

Have things changed now?

What about the fact that the cyber world–its normed, practices, possibilities–have radically soaked through much of the planet of litigation?

What about the world of coronavirus (Covid-19) and its consequences and litigation practice?

As of March 2020, it is difficult to tell whether long-established rules on attire will change. The age of electronic court hearing has arrived. It has suddenly been pressed into active widespread service by the onset of the pandemic generated by the arrival and spread of the coronavirus aka COVID-19.

At least many lawyers and some judges don’t see the point of insisting on coats ties and actual shoes for lawyers in video teleconferences which are becoming the “new normal” in civil cases for at least some pretrial motions practice, e.g., summary judgment hearings. (It is also becoming a new normal for various some parts of criminal practice about which I know next to nothing.) All of these “new normals” are accompanies by the requirement of electronic filings, and those rules are being expanded to cover things like exhibits to be used in a contested hearing.

I attended several electronic seminars recently and ably taught by a judge. The “webinars” were originally presented by this able juris for lawyers and others involved in cases in his court, I think, but they quickly became attended by dozens upon dozens of judges, lawyers and other legal system professionals from around the state. Even some IT guys were “there”–“virtually” or “remotely” present–as were some mediators.

There were judges in T-shirts; one person in attendance appeared to be reclining; another had a cat in sitting on his desk; yet another had a cat perched on the high-level back of her leather executive-attorney swivel desk chair, an elegant piece of law office furniture of ever there was any. The host of the seminar had on a white shirt and tie, but no coat.

This host had behind him the state seal on the wall along with two flags, one American and one Texan. He told the “crowd” of 80 that the background was virtual fiction, in the new sense of “virtual.” It was mentioned by a sophisticant that one could create many different fictional backgrounds. One fellow did it several times as a teaching device: beach scene, golf course scene, Golden Gate Bridge scene, and others.

Obviously, this context was not a real hearing, of course, but questions came up regarding how one could and/or should dress for a real, though virtual, courtroom appearance.  Several of the judges in attendance commented that presence was more important these days than attire or physical appearance.  Perhaps these remarks were generated by the fact that videos can easily be done with only head and neck showing. Or perhaps they resulted from the difficulties created by the Pandemic of 2020.

(Of course, the host, judges in attendance, and some lawyers who electronically raised their hands commented that all rules of decorum continued to apply–or should, anyway.)

Myself, I’m concerned that informal dress will have a deleterious impact of clients who are attending hearings by sitting in their lawyer’s office and attending the full hearing remotely. A male lawyer wearing a swimming suit for pants does not give clients the right sense of the solemnity, seriousness, and yeah majesty of the legal system.

For this reason, I have difficulty imagining this sort of new normal applying to “higher level” courts. Can the reader imagine this being done in the Supreme Court of the United States or even the Texas Supreme Court?.

Then again, emergency or “emergency” hearings might be a different matter.

(Is it worth mentioning that after the seminar concluded some wags in something like bar room assemblages cracked a series of nearly offensive remarks about what might be going on off video camera, or as one of them put it, “under the table.” For all I know these jokes were being passed around by means of private chats even during the presentation. What would happen if such thing accidentally became not-so private during or after a real hearing? )

So far as electronic and video appearances are concerned, bench trial and even jury trials are next.

By the way, one might think that these same principles apply to the hitherto more formal types of transactional law.

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Deposition Treachery

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TRICK QUESTION TO BE TAMED

Several times I have written about depositions questions to be suspected and refused avoided.  I have, for example, written about questions ostensible trying to make sure that the deponent understands questions.  I have suggested that they really tricks to try and lock people into answers when they did not actually understand the question.  

Now I have another one which might come at the end of a deposition.  

Q. “Have you understood all the questions I have asked you?”  

The “Yes” answer should be avoided. 

Instead, the answer should be this, or its equivalent: 

A. “I don’t know. I think so, but I am not certain. One can think one understands something someone else has said, but actually doesn’t.”  For many dependents, a shorter version of the “Quinn Answer” is also appropriate. 

Michael Sean Quinn

Attorney at Law 

Austin Texas 

mquinn@msqlaw.com

512-656-0503

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MORE ANSWERING QUESTIONS IN DEPOSITIONS

MORE ANSWERING QUESTIONS IN DEPOSITIONS

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“ANSWER ONLY THE QUESTION ASKED!”

In preparing for a deposition a lawyer (L) is often tempted to tell his client (C) to answer only the questions and not to elaborate at all.  There are several good reasons for this.

First, without thinking ahead, C might give an answer that, upon reflection, he didn’t mean and would like to take back.Second, if C begins to elaborate s/he may think that part of what s/he really wants to do is convince the lawyer taking of the deposition and thereby convince the opposing party that s/he is right.  L’s preparatory instruction (or suggestion) is really an attempt to prevent this.

Third,  instruction witnesses to answer only the precise question asked is a way to tell the witness to listen to the question asked…to concentrate on what the depositioner actually says.

Nevertheless, one wonders if this is always a good idea. Granted it is more than widely accepted that this is what should be done.  It might even be a dogma of how witnesses should approach depositions and, similarly, a dogma as to how Cs must be “trained” to take depositions.

First, it should be limited to allow C to say “I don’t know” or “I don”t remember.  These assertions are both answers to questions, while “I don’t understand the questions” is not.

Second, some witnesses are articulate and insightful enough to give more elaborate answers. Under some circumstances, this kind of answer should be encouraged; indeed, C should be “trained” (or taught how to do do it right. “Trained” is an awful word here. It makes clients sound inferior, and misses the fact that testifying is an art not  a factory–assembly plant–job.

At the same time, and third, it should be remembered that some bright, articulate, witnesses can’t reliably say which is contrary to their true interests. It is also worth noting that some witnesses who are brilliant in their intelligence are not good conversationalists, “answerers,” or speakers. Some let their passions get the better of them. L and C need to think this matter out together in  advance, and that often requires discussion, L must remember that C does not always realize who s/he is in this regard–or some to any of these regards–and may be confident of their own performance-to-be when, in fact, they are wrong about themselves and their performance characteristics. (Imagine Billie Jean King think she is an excellent player of the piccolo, or Donald Trump thinking pridefully about his playing the viola.)Setting aside the parenthetical attempt at humor, these  can be subtle problems for L, though they are very important. Thought, joint thought, and discussion may well be advisable or necessary.,

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ANSWERING QUESTIONS IN DEPOSITIONS

ANSWERING QUESTIONS IN DEPOSITIONS

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ANSWERING QUESTIONS IN DEPOSITIONS

To the extent one’s client (“C”) is to  testify at a deposition, s/he needs some suggestions, lessons, instructions, training, etc.–the level depending on the nature of C. There are lots of things to emphasize. Here’s one.

L: “Suppose, my dear C, that you are ask a question like this one: ‘Do you you agree me with me that p?’ What should you say? How should you answer?”

C: “Shouldn’t I say “yes,” if I think p is true, or no, if I think its not?” I wonder if this is true.

The real question should be one of two possibilities: (1)  whether p is true or not, or (2) whether C believes or does not believe p.  Whether C agrees with opposing counsel is irrelevant.  Moreover, it is probably not knowable by C, since he does not have access to the mental states of opposing counsel.

Perhaps C should consider answering the question “I don’t know.”  The trouble with this correct answer to the irrelevant question is that it’s a subtle matter, and someone might be confused about the meaning of “I don’t know” uttered in this situation.

Another approach is for C to say, “I don’t understand that particular question.” The depositioner will then ask, “What do you not understand?” The witnessing C might then say, “I can’t tell whether you are actually asking me something about the correspondence of our mental states as to p or whether you’re asking me about what I believe with respect to p.”

The depositioner will back away immediately and as the relevant question cleanly. This is true even is s/he scowls contemptuously or laughs sneering.

I like the approach even though looks over-technical. First, it keeps the record correct. Second, it lets the depositioner know that C will not be pushed around or subtly dominated. It makes C more in control.  After all, the deposition of of C, so it’s his/her deposition, and not at all  the deposition of the depositioner.

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WRITTEN DISCOVERY’S INSTRUCTION AND DEMAND SECTIONS

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 WRITTEN DISCOVERY EXPERIMENTS: STARTING WITH INTERROGATORIES

Michael Sean Quinn

Many instances of written discovery involve several “instructional” sectional sections with numerous provisions. Metaphorically speaking these amount to “You must answer our questions in this way and not that.”  These include definitions, instructions, and demands of various sorts. (“You must include cover all of the following. . . .) For the most part, in practical terms for the usual case, they are useless, and seldom is to be found a case which punishes a respondent for failing to act in accordance with one of the obscure ones. (I even knew a lawyer once who bragged that he had constructed over many years a wholly maximal set of these provisions which he used in all his cases.)

Of course many of these passages are “boiler plate.” “The term ‘You’ means the defendant.” (My bragging friend, of course, got a lot of his additions from some other boiler plate instructional.)

Keeping in mind the fact that discovery usually amounts to at least 50% of expenses in any litigation (including attorney fees in discovery activities), discovery is very expensive.  This can be a real problem when a “Big Guy” is up against a “Little Guy.” Since litigation is in many ways, metaphorically speaking, a kind of warfare,* it can be a “war of attrition,” and attrition can be measured in many ways, e.g., driving up expenses, making the process last along time, and seeking the ruination the emotional life of the other side, not to mention that person’s will.  (*When you have an system which is its announced essence adversarial, how could any dispute be otherwise. So much for real justice.)

Here are several suggestions. 

1. Consider making objections to problematic instructions, definitions, etc.  Don’t mess with the simple ones. especially if they are short.  I recommend, for example,  objecting is two people or entities are defined as one person. (The “defendant”is defined as X and Y, when X and Y are not the same person or entity.)

2. The rules may require the defendant to repeat virtually everything that is in the discovery propounded.  This may require retyping a large number of pages.  This involves expense.  Consider leaving all of the instruction out of the response, and just object and then proceed, e.g.,  answer.  I do not recall any motion to compel or motion for sanctions based upon not reprinting the.  If something has to be said, just object to the unreasonable or burdensome ones. 

3. In responding, simply incorporate the ones used by the propounder with alterations mentioned as needed, subject to objections.

 
4. In propounding written discovery simply incorporate their instructional  parts. Subject to even hand written marginalia. (Example: If interrogatories of a plaintiff say “‘You’ refers to Elijah the defendant.” simply say “The instructional sections of the plaintiff’s interrogatories are incorporated, except that the term ‘You’ is to be taken to name the Plaintiff, Sodom.” And of course there may be a few other alterations, but don’t do too many.  

Incorporation can be done in at least three ways: (i) put in whole pages and alter with marginalia; (ii)  just say your “incorporating except for” and then list what changes you are making, (iii) cut out pieces you want to use and actually physically paste them in.  Very inelegant and store-front-lawyer looking; eyebrows will be raised; the other side will look down on the lawyer who does this.  But if your client is short of funds, it’s still service to your client.

5. The only way to look cheaper and less real-lawyer like is to cut and paste the actual questions that have been asked of you.  Remember. Your responses are suppose to physically match up with the requests. This requires retyping, I think, if the requests come in PDF.  Again, might not zealous pursuit of your client’s interest require you to hold his/her/its/their expenses down? Inelegance is not actually inconsistent with zealousness unless the other side reasonably thinks it might help them win, e.g., victory via attorney shame infliction.  But the “cheap-ness” and/or crudity of this method can be determined by the address of you office, so probably no harm is likely to be done–or so it can be argued. 

I certainly do not recommend that a lawyer split up the responses from the request or question. That’s contrary to the rules and therefore not to be suggested.  The practitioner desirous of doing this needs to determine whether there are any cases in which attorney fees or sanctions have been awarded for this kind of conduct.

Here’s another one. As the other side to give you a copy of their interrogatories but not “read only” but permitting you to make the “Respond” area larger.  Then copy what you’ve done and type in the answer.  Don’t worry about their condescending judgment manifest bullying judgment of you, you’re actually showing a kind of unorthodox courage. Take their barely express and therefore subtle haughtiness in stride. 

Michael Sean Quinn, PhD, J.D

Austin Texas

mquinn@msqlaw.com

512-656-0503

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Quinn Quotes

Truth is not a relative (or relativistic) concept. Factual propositions are true; they are false; they are too vague to have a true value, or their true value has not been determined. We don’t know, or we do not know yet, is a permissible answer to a question, so long as it is true. It is not always the case that false propositions must be apparently false. Sometimes a false proposition can look true. And vice versa. ~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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Michael Sean Quinn, PhD, JD, CPCU, Etc*., is available as an expert witness in insurance disputes and other litigation matters. Contact