Causation in Failure to Warn Cases: Products Liability
Presented by IRA H. LEESFIELD
2350 South Dixie Highway
Miami, Florida 33133
Should you forget everything you learned in law school?
(A Words that are dead giveaways for "rookie" lawyers; i.e.; subsequent, hereby, latin phrases, overuse of legalese:
(B) Determine what you want to say and the most direct way of saying it.
(C) Use a one dollar word and overcome temptation to use a ten dollar word.
(D) Know what you are going to say before you say it.
(E) The value of negotiating with a returning phone call - on your own ground
(F) Practice at the gas station - high school audience.
(G) Do not try to impress the reader - legalese, legal jargon and technical phrases, long rambling sentences.
Discussion: It is essential that new lawyers not try to over compensate or over impress the recipient of letters and pleadings with technical terms, legalese, or complicated terminology. The best form of communication is direct, forthright plain speaking and writing. In law school a new vocabulary is superimposed upon the every day use of language. It is self-defeating to take this new "style" into the trial practice because most jurors, judges and claims examiners don't communicate with "whereases".
Effective legal writing uses simple straight forward language which could be used when communicating with the population you see every day. For instance, most American newspapers are written at an 8th grade reading level. When you are trying out a closing argument speak to the working men and women in the trades and other non-lawyers to see if you are getting your message across. Do you say "whereas my shirt is soiled it will necessitate a subsequent expungement of debris?"
Obviously, an appellate brief must articulate stylistically in legal terms. However, 90% of your practice does not involve appellate brief writing, and even then, an appellate judge wants the facts set forth in a clear, punchy and interesting manner. You shouldn't forget everything you learned in law school, but rather, you should learn to share and communicate your legal education with people who haven't attended law school. You will find that the level of suspicion rises the more you use very technical legal words and phrases. The opposite is also true.II. Communicating With Fudges
(A) Don't just be on time --- be early - plant your feet.
(B) Get a legal memorandum to the court, at least 24 hours in advance of your
argument - deliver to judge's chambers.
(C) Make that memo as short as possible-clear-concise. Remember it is easier to write a long memorandum than a short one.
(D) Call the judge's secretary. Hand deliver to her a courtesy copy of your motion and memorandum with the court, as well as filing with the court file.
(E) Be appropriately deferential-but firm in your argument-find out any idiosyncracies or preference of your particular judge-he who speaks first, loses? Wins? Court reporter?
(F) Interrupting the other attorney? Being interrupted by opposing counsel.
The heated exchange - overcoming youth with experience.
(G) Communicating in open court-voice-posture-demeanor-confidence-preparation- preparation-preparation - courtroom staff.
(H) Non-courtroom communication with judges--how the court knows you are a serious, honest, dedicated trial lawyer.
(I) Extra-curricular activities:
(J) Advocacy before the court-knowing when to stop-what issues are really important.
Discussion: Trial and appellate judges are busy, impatient and appreciate your point being made with preciseness. Whether it be in oral argument or in writing, get to the point early and quit while you are ahead. Remember the importance of "primacy and recency". What you say first sticks with the listener. At short motion calendars don't spend a lot of time "warming up". The same is obviously true for your written memoranda. The first paragraph should tell the story. If you don't capture the court's interest early on, he may just put your hard work and research down and look at something else. When communicating with judges in open court do so with a voice of authority, stand up! Use exhibits, charts, and demonstrative evidence to make your point. Even in chambers explain a complicated matter with the use of a diagram or chart. Be certain that your written submissions are without error. There is no room for misspelling, typographical errors, or incorrect citations. It is fair to say that courts judge your correctness on legal issues to some degree by the appearance of your written work product. Be sure that you present the court with a first class memoranda which includes case authorities that you expect opposing counsel may use so that you have the opportunity to distinguish them first.III. Communicating With Your Clients
(B) Do so often.
(C) The fringe benefits of great client communication-i.e., new business.
(D) How to clearly and plainly let your clients know what is going on.
(E) Telephone communication and answering phone calls.
(F) Copying clients with correspondence and pleadings.
(G) Following the check-list and sending clients copies of initial work-up. The importance of getting off to a good start.
(H) Client communication as a confidence builder.
Discussion: With today's emphasis on mass media, clients have often distorted incorrect and suspicious views of their lawyers and the system. Every effort should be made to put your clients at ease. Speak to them simply and with concern. During client interviews take notes. Those notes can be used later on during closing argument and also shows the client that you are interested in what he has to say. Personalize your interview by finding out something about your client's background and family life. As a reminder, think of how you feel when you go into a physician's office and he jumps from one examining room to the other giving you exactly 60 seconds of his valuable time. That type of detached "professionalism" is exactly what your clients don't want. When your clients feel that you care about their well-being, they will tell their friends resulting in a substantial business development. Your clients expect you to interview him in a proper attire. Don't forget to give your clients a business card and don't protect your home phone number. Every lawyer in our firm is listed (this is not a 9:00 to 5:00 position). When your clients call you need to return that phone call that same day. If you are in trial or out-of-town, ask a member of your firm or your secretary to return the call. One of your key communicators is the receptionist in your office. Be sure that she understands your objective is client communication. She should begin to recognize their voices and give them a personal welcome and hello on the phone. You can't expect to have the client come in the day before trial and tell him he should accept a certain settlement offer or expect to have any rapport with your client if you haven't spoken to them during the pendency of the case.IV. Communicating With Lawyers and Claims Adjusters
(A) Negotiation on your own turf.
(B) Telephone negotiation --- the well-thought out response.
(C) Presenting your case on paper. (See attached Exhibit A)
(D) Presenting a case on the telephone.
(E) Communicating the strengths (and weaknesses) of the case to opposing lawyers and claim managers - disarming the defendant.
(F) Your reputation for reliability, honesty and forthrightness with opposing counsel.
(G) The difference between advocating and deceiving.
(H) Communicating with opposing counsel and other lawyers outside of traditional law office practice.
Discussion: Keep your phone conversation with adjusters short. Primarily they are trying to pump you for information or wear you down. I am always courteous and professional, but do not like to spend a lot of time speaking to adjusters. If you disagree on the range of a case, file suit. When an adjuster calls it may be better not to take his call but rather call back on your own terms. When you call back be sure the file is in front of you. Review your demand letter and medicals and all important information so you can discuss the case intelligently. Keep a list of last demands and offers and comments by the adjuster in the correspondence file. When communicating with other lawyers unfortunately in these days' climate, it is often necessary to confirm stipulations in writing. This is specially true with settlements. If a case is settled on the phone write a letter confirming the settlement, or better yet, ask opposing counsel to confirm in writing to you. Then call the judge and let him know the case has been settled so he can free up his valuable time.
The use of settlement videos is extremely effective in communicating your case to opposing counsel and high level claims' supervisors. Have a good outline on the preparation and presentation of the settlement video. (See attached Exhibit B)V. Summary
There is no better way to say it than---plain speaking. Fancy words, latin terms and legalese make people suspicious. They also are a quick tip-off that you are overcompensating by using words and phrases that are highly technical. Law school education is structured. It introduces a new vocabulary into the student's life. Legal concepts and knowledge must travel with you into the practice of law. However, the convoluted, technical and frilly language that cases and treatises are couched in, can stay in your law school locker. Jurors, judges, your clients and other attorneys respond best to direct, sincere, straight forward, accurate and documented information. CREDIBILITY-CREDIBILITY-CREDIBILITY is always the key. You build credibility by repeatedly following up on what you are going to say. If you tell opposing counsel or claims manager you are going to file suit in thirty (30) days-file suit in thirty days. If you tell them you are going to respond to a Motion in 10 days-do it. If you tell the jury you are going to prove certain elements of the case in Opening Statement-be sure you prove those elements. It is really all very simple if you follow-up on what you say you are going to do-you are going to get (usually) the desired result --- Good luck!
Reprinted from ATLA's (program title and date), with permission of the Association of Trial Lawyers of America. Copyright Association of Trial Lawyers of America. Further reproduction of any kind is prohibited. For more information, please contact the National College of Advocacy, 1050 31st Street, N.W., Washington, D.C. 20007, 800-622-1791.