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Recovering attorneys’ fees in non-attorney fees cases

Many times in prosecuting a case, attorneys’ fees are the tail wagging the dog. Meritorious cases are not taken because there’s no way to make the case financially feasible for the attorney. I’d like to suggest a secret, a way to recover attorneys’ fees, even when you don’t have a statute or contract that provides for attorneys’ fees.

Yellowstone: Where I First Saw Cross Examination

One constant in my life as a boy growing up in Utah, was my family’s annual vacation to Yellowstone. Every year during my youth, my parents loaded the family in the car and made the long drive to Wyoming.

As an adult who considers the Westin “roughing it,” I marvel at the accommodations that I thought were so wonderful as a child. My parents rented camper cabins in the park. They were log cabins, and we camped. There were bed frames of wire springs with a mattress on top but no sheets. There was a wood burning stove, but no restroom, no showers, and no heat in the cabin (except from the stove). The bathrooms and showers were community affairs, centrally located in the cabin complex.

I loved sleeping in sleeping bags on top of the mattress. I loved waking up before dawn to go fishing with father and brothers and sister at the Yellowstone river. I loved returning home with the fish we caught and entering the cabin now warmed by the stove with the aroma of bacon, pancakes, and hash browns filling the cabin.

One year when I was eleven or twelve, by father’s brother from Missouri met us at Yellowstone. This injected a new form of excitement into my life for I got to see my cousin Cecil whose nickname was Toughy. I had seen Toughy only 3 times previously. We were friends from the beginning and that year I was so excited to be in Yellowstone with Toughy.

Yellowstone With My Cousin

I did not know how much excitement was coming for Toughy had picked up a new habit. At night, after a day of sightseeing and dinner, we would play around the campground pretending to be trackers or Indian scouts. Toughy was more interested in hanging around the bathroom. I learned it was because he had cigarettes, and as an eleven year old, had mastered smoking and spitting.

I remember Toughy had a pack of menthol cigarettes. He tore the filter off. I asked him, “Why do you do that?”

He said, “The menthol is in the filter, and I don’t like it.” It made perfect sense to me.

Because I did not want to smoke my assigned role in the bathroom drama was to stand outside the bathroom to stand guard in case my uncle or aunt came around. I was to warn Toughy who would toss the cigaret in the toilet and flush. As I stood guard one night, my uncle rounded the near side of the restroom building and caught me off guard. I slapped the side of the log building with my hand to warn Toughy and said in a loud voice, “Uncle Teat, what brings you out on a fine night like this?”

My uncle paused and look askance at me. He looked through the bathroom door and asked me, “Is Cecil in there?”

I replied again in a voice loud enough to warn Toughy, “Why I don’t know. I’m just standing here.”

“How long has it been since you last saw Cecil?”

I started to answer but my uncle held up his hand, walked into the restroom and dragged Toughy out of the restroom. I did not see Toughy for the rest of the night.

My uncle, who owned a bar and was not a lawyer, had conducted a blistering cross-examination with only two questions. That was all he needed to ask. Anyone watching would have known not to believe me, regardless of what I said or how convincingly I said it.

How Do You Conduct Cross Examination

That is a great lesson to me as to how to conduct cross-examination. I have seen attorneys wring their hands with glee at the prospect of decimating a witness, and then don’t understand the jury thinks any attorney can make a witness look silly, rules against them.

Cross examination is not about destroying people. Cross Examination is a study in truth revealed. Truth is the goal of trial. Truth is what moves juries. Truth should be a lawyer’s stock in trade. We cannot hide from truth.

I do not set out to destroy anyone. If the witness answers honestly, it does not matter that he is my opponent – the answers advance my case. I have seen attorneys who upon getting an answer that contributed to their case and helped their client, read from a deposition transcript to impeach the helpful answer because it departed from the deposition testimony. This is an attorney who did not understand his own case or his case’s story.

If on cross-examination, the witness does not answer honestly, I do not get upset – the witness has helped me even in mendacity. You see, the jury knows, just as my uncle did, that the answer is out-of-place and does not make sense. The jury then acts accordingly. Wasting emotion reacting to less than truthful answers distracts the jury. Just let the jury do its job. Trust them.

Question like my uncle did. Answers to direct questions reveal truth no matter whether the answer is true or not. When you trust the jury this way, and cross-examine for truth not destruction, it feels like walking into that warm cabin with the savory smells of my mother cooking breakfast on the top of the wood burning stove.

Trial is Like Petting a Tiger

Going to trial is like petting a tiger. The only way I would know that is if I have placed my hands on a live tiger.

The Lincoln County Fair

In August 1996, the Lincoln County fair is in full swing in Star Valley, Wyoming. Star Valley is south of Jackson, Wyoming (which probably tells you nothing unless you have been to Wyoming). During summer Star Valley is verdant green with farms and pasture land from one side of the valley to the other. During winter, the valley is pure white from almost constant snow fall owing to its altitude: 5600 feet above sea level to 7000 feet above sea level. Imagine the most beautiful Swiss mountain valley you can think of. That is what Star Valley looks like.

The Lincoln County fair is a temporary event staged in a city park. The fair offers every country pleasure imaginable including constant country /western music, the smell of livestock mixed with deep-fried foods, rodeos, a demolition derby, a hypnotist show, and tigers. Yes, tigers.

The main midway for the fair is on the city’s softball fields. Near the fields, where the park has trees grass, a six-foot-high chain-link fence encloses a “big cat” display with adult mountain lions, blacks leopards, spotted leopards, and a jaguar. The big cats are lolling in grass under the shade of the large tree in the center of the chain-link enclosure. They pay little attention to what is happening outside the fence.

The display’s curator raises money to support the big cat operation by letting people “play” with tiger cubs for a fee, or if you are willing to part with more, the curator will take your picture with a bigger tiger.

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Do you make time for vacations?

Periodically, we just have to take a break. You can’t be your best if you never take time to sharpen the ax.

Essence, Not Size, Determines Significance.

During a recent visit to Yosemite National Park I learned that significance does not depend on magnitude or size. The main attractions in Yosemite are arrayed along a twelve-mile loop through the Yosemite Valley. Half Dome, El Capitan, and Yosemite Falls are without dispute, awe-inspiring. But to me, the most striking feature in the valley is not the soaring grandeur of the rock edifices, but rather a small, insignificant spring at the end of the 12-mile loop. It is so insignificant that it does not have a parking area, but only a small turnout from the road.

I pull my car into the turnout more from my mother’s influence (she always wanted to read every exhibit card in a museum and see every sight on a trip) than interest in the roadside feature. I park, turn off my car, and get out to read the sign posted by the national park service. A small sign says, “Fern Spring.”

Fern Spring - the Source of Life

Fern Spring – the Source of Life

A larger sign nearby says the waters flowing from Fern Spring originate from snow melt at the top of the valley rim and filter through hundreds of vertical feet of rock to the spring’s location on the valley floor. The description continues:

“Native Americans consider Fern Spring a site of spiritual significance and call it ‘the source of life’.”I pause. I read the sign again. I wonder how long does it take the water to get from valley rim to this spring. I wonder at the powerful appellation of “source of life” appended by those more in touch with the earth and its mysteries than I. I think, what can this teach me?

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Tragedy at the Waterfalls

Going to trial can be like walking on the brink of a waterfall. I thought of this today as I was climbing boulders in Yosemite National Park to get to the base of a waterfall. It began with a short hike to the viewpoint for Bridal Veil Falls. At that point many people scramble up the boulder strewn creek bed below the falls trying to reach the base of the falls.

Yosemite warning re dangerous rocks approaching Bridal Veil Falls waterfall

Yosemite warning re dangerous rocks approaching Bridal Veil Falls waterfall

DANGER climbing and scrambling on rocks and cliffs is dangerous they are slick wet or dry many injuries and fatalities have occurred

Close up of the sign

Most who begin the climb turn back without finishing. This is because they slip and slide on the water polished surface of the boulders. For hundreds of years the creek’s eroding flow has polished the boulders’ surface so they have little traction for even rubber bottomed shoes to grip. Imagine trying to ascend an ice-covered slope and you get an idea of the intimidation factor in scrambling over these boulders. I accomplished the climb by choosing a route that offered the greatest traction and because I had spent some of my youth in the Alps rock climbing.

Tragedy taught me to be wary of waterfalls.

When I was eleven years old, and not old enough to be a boy scout, the scoutmaster in my boy scout troop died while on a boy scout hike because he did not appreciate the danger that waterfalls pose. The outing was a typical weekend “overnighter.” The scout troop departed the scoutmaster’s home Friday in the late afternoon and planned to return Saturday afternoon. The scout master was the only adult, and five scouts crowded into his car with their backpacks. They drove to the mountains above our town, parked the car, and began the planned three mile hike.

The route took the group across a small stream in Farmington Canyon at a point where the stream went over a waterfall of no great consequence. As the scouts were crossing the stream near the brink of the waterfall, the young scoutmaster stood on the verge of the falls to insure that none of the scouts ventured too close to the edge. Unfortunately, the scoutmaster apparently did not understand that the stones at the verge of the falls are polished to a near glass-like smoothness by the water rushing over the falls, and he slipped from his position and fell over the falls, landing in knee-deep water.

The group of scouts rushed to help their scoutmaster. He was still conscious and told them, “Don’t move me. I’ve broken my back.” The scouts followed orders so he lay in very cold, snow melt water at the base of the falls.

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Your Client is Your Best Weapon (Video)

Legal Counselor

There is a very fine line that runs through preparing a client to testify at trial and manufacturing a story for the client. Many times–and I’ve seen this happen–attorneys, who for some reason have this need to control everything, think that the story is one thing, and they try to shoehorn everything into it, and force the client’s answers to conform to the attorney’s story.

The problem with that is it’s the CLIENT’S story, and the attorney is missing something. If there is this struggle between client and attorney as to what the case is going to be, my experience is, the attorney needs to take a step back and gain greater understanding of what his client knows, has experienced, has lived with.

Watch the video of the rest of the interview on Legal Counselor: Your Client is Your Best Weapon

The Power of Stories (Video)

I believe that facts and law really don’t matter in trial. What does matter is the story. A story trumps facts and law every time. I’ll tell you why I feel this way. The decision making process that everyone goes through, whether they know it or not, is based upon the person’s principles and values. They make a decision, and THEN they go looking for facts and law to support that decision.

What Sitting Bull Would Teach Those Who Want to Be Trial Lawyers.

Sitting Bull was a Hunkpapa Lakota holy man who led his people as a tribal chief during years of resistance to United States government.

Sitting Bull was a Hunkpapa Lakota holy man who led his people as a tribal chief during years of resistance to United States government.

The Lakota warrior and chief known as Tatanka Iyotake, and as Sitting Bull to the white man, did not display heroism and leadership throughout his life. When he was a young member of the Teton Sioux, he was  awkward and bore the nickname, “Slow.” Despite Slow having killed his first buffalo by age ten, he remained a boy because the Plains society required that he achieve success in battle through a courageous act.

When Slow was fourteen, he watched as his father and others left camp to attack their traditional enemies, the Crow. Slow was still small and too young to be skilled in the use of weapons, but he was anxious to win the respect due to a warrior. Deciding for himself it was time to become a man, Slow mounted a pony and pursued the war party. When he caught up, he announced to his father, “Today I will become a warrior.”

Slow’s father, not wanting to restrain his son’s spirit, welcomed him, instructed him on bravery and wisdom in battle, and handed him a coup stick with which he could strike an enemy and gain honor.

The Sioux set an ambush for the Crow. As the Crow party approached, Slow burst from cover and charged the Crow party. The surprised Crows retreated. Slow overtook the slowest Crow warrior, who dismounted and shot at Slow with his bow and arrow. The warrior missed, and Slow hit him with the coup stick, knocking him over. The rest of the Sioux arrived and killed the Crow warrior and routed the other warriors.

Upon returning to the camp, Slow’s father placed Slow on a strong horse and paraded him through the camp shouting, “My son has struck the enemy! His is brave! I name him Sitting Bull.”

The name was not a coincidence. Sitting Bull’s father had encountered a talking buffalo during a hunt. The buffalo recited the names of the four stages of the buffalo’s life, after which the Plains people modeled their own lives. The sitting bull was the first and youngest stage, and a name of great honor. Slow’s father had taken the name Jumping Bull after the experience. The “new name” bestowed on Slow represented that he had passed from boy to warrior.

I want to suggest to you that law school specifically, and society in general, fail to prepare one to step into the courtroom as a warrior. Unlike the Native American culture where major life changes were celebrated through elaborately staged ceremonies marking rites of passage, we graduate law students barely prepared to attend a bar review course and expect them to know how to try a case. Choruses bemoan that attorneys have lost the skills of the trial lawyer when an attorney, particularly in large firms, rarely goes to trial more than ten times during their entire career.

The rites of passage in Native American culture that marked the emergence of the candidate from training and established challenges to prepare him (it was always males) for rebirth as a new person – possessed of a new status, new wisdom, new identity, and a new name, commemorated the birth of a new member of the culture.

I suggest we adopt a changed vision of what trial is, and how we train people to step into the warfare we call trial. We attend law school with law school professors telling students how to try cases by reciting rules born of fear and the need to control: “Don’t ask a question you don’t know the answer to.” “Ask questions that can only be answered ‘yes’ or ‘no’.” “Always appear strong and in control.”

I call, “Bullshit.” I call “Double Bullshit.”

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The Judge Taught Me How to Tie the Expert’s Hands

Man with hands bound

Have your depositions questions really tied the expert’s hands?

 

Yesterday, I finished a nine-week legal malpractice trial receiving an 8-figure verdict. The judge, before whom I tried the case taught me an important lesson concerning experts when the defense attorney sought to tie the hands of one of my experts.

Near the end of my case, I am arranging exhibits and demonstratives I intend to use with my valuation expert. He is the lynch pin of the damage verdict I obtained against an attorney who ruined a business that was the first to the American market with an organic tequila. My expert has prepared valuation figures for the business to establish the harms and losses the malpractice caused. My opponent is a wily old strategist who over almost 45 years has established not only a formidable reputation for winning impossible cases, but an almost perfect 155 and 3 trial record.

Defendant’s Attack on My Expert

Before the court room attendant ushers the jury into the courtroom, my opponent rises and argues that my expert, who will deliver the big damage testimony for me, should not be allowed to testify because “There is no factual basis to support the opinion.”

I respond, “Your honor, my opponent is mistaken. The expert has spoken with an officer of the company he has identified as a comparable business. He obtained the information confirming the assumptions he made and testified to during his deposition.”

The attack on this most important witness begins when the defense attorney seeks to prevent his reference to the information from the company officer.

The judge asks, “On what basis do you think I should exclude the testimony of the expert?”

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