Most trial lawyers are in trial only a few weeks each year. They spend the other forty to fifty weeks interviewing clients, preparing for and taking depositions, hiring and consulting experts, and preparing and participating in mediations. The Playbook is about those weeks and tasks. It is a book that gives tips and guidance for what plaintiffs’ lawyers spend most of their time actually doing.
Author Elden Rosenthal is a trial attorney of forty-seven years’ experience whose courtroom successes earned him national recognition and achievement awards from the Oregon Chapter of the American College of Trial Lawyers, the ACLU of Oregon, and the Oregon Trial Lawyers Association.
Rosenthal provides a concise, nuts-and-bolts guide to litigation best practices that will help make you a better lawyer.
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Publisher’s Note
Introduction
1. A Trial Lawyer’s Point of View
Tenet 1: Keep Clients Informed
Tenet 2: Like Your Client
Tenet 3: Treat Every Case As If You’re Going to Trial
2. First Things First
Evaluate the Statute of Limitations
Recognize Your Reason for Taking the Case
Avoid Conflicts of Interest
Make Sure There Is No Pending Bankruptcy
3. The Attorney–Client Bargain
Enter into a Written Retainer Agreement
Establish Expectations
Assign Tasks to Your Client
Discuss Social Media
Discuss Communication Expectations
Legal Representation Is a Partnership
4. Decide Early On: Do I Associate Co-Counsel?
5. The Trial Notebook
6. Prefiling Investigation
Visit Accident Scenes as Early as Possible
Preserve Potential Physical Trial Evidence
Interview Witnesses
Research the Parties
Collect Records
Hire Experts
Research the Law
7. Selecting the Parties
Selecting the Plaintiff
Selecting the Defendants
8. Pleading the Plaintiff’s Case
9. Paper Discovery and Protective Orders
10. Preparing for Deposition: Defendants and Defense Witnesses
The Three Primary Purposes of Discovery Depositions
Prepare a Deposition Outline
Setting Up the Witness for Trial Cross-Examination
Setting the Order of Deposition Testimony
Client and Colleague Attendance
Location of Depositions
Videotaping
11. Preparing for Deposition: Your Client
12. Taking Defense Depositions
Court Reporters
Goals
Deposition Demeanor
Questioning the Witness
New Documents
Dealing with Improper Defense Tactics
Concluding the Deposition
After the Deposition
13. Defending Your Client’s Deposition
14. TAKE A DEEP BREATH
15. Hiring Expert Witnesses
Overarching Approach
Finding the Right Expert
Keeping Experts Informed and Engaged
16. Conducting Focus Groups
17. When Things Don’t Go Well
18. Exploring Settlement
When to Negotiate
Make an Effort to Negotiate Lawyer to Lawyer
The Plaintiff’s Demand
Why Mediation?
Mediation Guidelines
Mediation Ethics
Concluding a Mediation
19. Preparing Yourself for Trial
Take Care of Yourself
20. Preparing Witnesses for Trial
Lay Witnesses
Clients
Experts
21. The Nitty-Gritty of Trial Prep
22. Trial!
Voir Dire
Opening
Direct and Cross
Closing Argument
Rebuttal Argument
23. The Challenge We Face
Appendix A: Retainer Language Relating to Court-Awarded Attorney Fees
Appendix B: Model Stipulated Protective Order
Appendix C: Form Letter to Client Regarding Deposition
Appendix D: Focus Group Questionnaire
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