Coaching Witnesses.

A recent federal case out of the Fifth Circuit considered how far lawyers can go when coaching their witnesses prior to a trial or deposition. The case Ibarra v. Baker sent a strong reminder that witness preparation has its limits.

In that case, the court upheld sanctions against the attorneys who were defending police officers in a Section 1983 case. The defendants asserted that they had reasonable suspicion for detainment of the plaintiff, while the plaintiff alleged otherwise.

The district court found that the defense lawyers had essentially planted two new terms of art into the case through their preparation of two witnesses. The witnesses began using the terms "retaliation" and "high-crime area" late in the lawsuit and only after preparation by their attorneys.

The late timing of the appearance of these terms, combined with some notes taken by one of the witnesses during the preparation, led the district court to find that the attorney's conduct was sanctionable.

This reminds me of the great book Anatomy of a Murder by Robert Traver that we had to read in Crim Law I with Professor Schmall. You will recall the great scene in that book where the defense lawyer counsels his client on the different mental states required to charge different levels of murder. After hearing his lawyer's explanation, the client in that book "remembers" exactly what happened the night the man who raped his wife got murdered. Great book.

Great tip from Justice Scalia

I told you I was going to read the book Making Your Case by Justice Scalia and Bryan Garner, the Editor in Chief of Black's Law Dictionary. It is really good. It's a quick read, but it's full of great advice.

The most informative section, in my opinion, is the one dealing with legal writing. It is somewhat geared towards appellate briefs, but the authors point out which tips should also apply to pleadings and motions in the trial court.

I have handled five appeals in the past five years, if you count the Supreme Court case as two. I am currently waiting for decisions on two separate cases. That means I have probably written seven or eight appellate briefs, considering that you write two if you are the appellant. There is a tip in the book which I have never used before in a brief, but I will use almost every time from here on out. I also used it today when drafting a motion in a breach of contract case.

Chapter 14 is titled "Always start with a statement of the main issue before fully stating the facts." That statement itself is not groundbreaking. Most appellate court rules require that the "Questions Presented" appear in the first one or two sections of the brief. Trial courts benefits as well by learning the issue before reading through all of the facts. But what is interesting is how the authors recommend that you phrase the issues.

The statement of the issue should contain enough of the facts to make it informative, even slightly persuasive. I must admit that all of my issue statements in my appellate briefs have probably started with something like "Whether the trial court erred...etc." That's how I thought you were supposed to do it.

But compare these two issue statements provided by the authors: (1) Whether the appellant was in total breach of the contract; and (2) The appellant delivered a load of stone two days late under a contract not providing that time was of the essence. Was the appellee entitled to reject the delivery and terminate the contract? The second one is obviously more informative. It could probably be a little more persuasive, but you get the idea. I am definately going to start paying more attention to issue statements in my legal writing.

Stay tuned for more tips.

Making Your Case

The next book that I am going to read is called Making Your Case: The Art of Persuading Judges. It is a new book written by Justice Antonin Scalia and Bryan A. Garner. Clink here for Bryan A. Garner's website. He is the founder of LawProse, Inc. He looks like a really smart guy.

Anyway, the book contains specific and valuable advice on how to persuade judges through all stages of your case. It is divided into four main sections: General Principles of Argumentation; Legal Reasoning; Briefing; and Oral Argument. These sections are divided into 115 short paragraphs containing very specific pointers. For instance, chapter titles advise lawyers to "Occupy the Most Defensible Terrain," "Yield Indefensible Terrain," and "Appeal to Justice and Common Sense."

The Wall Street Journal Law Blog recently profiled a couple of good chapers. Yesterday's tip was to "improve your writing by improving your reading." Specifically, by reading literature other than legal opinions. The book quotes Judge Easterbrook of the 7th Circuit when he says that “the best way to become a good legal writer is to spend more time reading good prose. And legal prose ain’t that!"

I'm taking their advice, starting with their book. I'll let you know how it goes.