It’s not everyday that an attorney with over 35 years of experience shares his hard-earned wisdom with the rest of us.  We asked Michael Hackard, of Hackard Law in Sacramento, what tips he could give aspiring lawyers and he provided us with this guest post.  I find Mike Hackard’s wisdon truly inspirational, hope you enjoy it too.

Whether new to the law, an accomplished thirty-something professional or a grizzled veteran, we all like to hear stories. We often share experiences or pass on the advice of our mentors, knowing that their advice helped to mold our careers. I will share some of the advice of my mentors with the caveat that I have not always faithfully followed their advice. Many of my personal experiences exemplify the truth that “the spirit is willing, but the flesh is weak.” Those experiences have also taught me the oft-repeated observation that “good judgment comes from experience and experience from bad judgment.”

These tips, whether learned from the wisdom of mentors or gleaned from experience, can prove helpful along our legal careers.

1.  CALL THE BEST EXPERT. I worked for Senator Peter Behr in the California Legislature. He was a great Senator and a great man. He advised me to pick up the telephone and call the best expert in the country whenever I had a major issue and wanted to seek good counsel. Senator Behr shared his life experience with me and explained that experts are often complimented by the call and more often than not willing to help. I have taken his advice and applied it over the almost forty years since it was given. It works.

2.  THERE BUT FOR THE GRACE OF GOD GO YOU OR I. Judge Robert Cole, an early career mentor of mine and that of many other Northern California lawyers and judges was a great character, a war hero and full of humor and insight. He commonly used to say “there but for the grace of God go you or I.” It was a saying born of his experience as a district attorney, public defender and judge. He often shared this statement with me when commenting on the particularly tragic circumstances of a defendant or the defendant’s victims. I haven’t forgotten it. It is a constant reminder to have empathy and to not forget that we are all fallible human beings. Judge Cole’s advice reflects the wisdom of Proverbs – “Pride goes before disaster, and a haughty spirit before a fall.” Keep pride in check.

3.  DO THE VERY BEST THAT YOU CAN. Our commitment to do good, even amidst controversy, is essential. I often remind myself that praise has no meaning if I am wrong, and scorn no import if I am right. Abraham Lincoln, one of America’s greatest lawyers, said it best:

“If I were to try to read, much less answer, all the attacks made on me, this shop might as well be closed for any other business. I do the very best I know how – the very best I can; and I mean to keep doing so until the end. If the end brings me out all right, what’s said against me won’t amount to anything. If the end brings me out wrong, ten angels swearing I was right would make no difference.”

4.  DON’T BE AFRAID OF CONTROVERSY. At the end of college, I had the opportunity to work for Governor Ronald Reagan. I was at the bottom of the bottom of the totem pole. That was a good position. I saw Reagan in action and spoke with him a few times. He was enthusiastic and optimistic in all that he did. He was not afraid of controversy as long as he felt well centered in his position. Advocacy at times involves controversy. This is not something to shrink from, if in Lincoln’s words, you do the very best that you can to do what is right.

5.  BE ACCESSIBLE. Be accessible to those who need your advice – whether paid or unpaid.  We must be “present” to those who seek our assistance. This is not always easy amidst the pressures of practice and the balancing of our family, faith and business lives. There have been many times when I would rather be at home than at my desk making follow-up calls.  Dean Gordon Schaber advised some two hundred aspiring lawyers on our first day of law school that “the law is a jealous mistress.” Dean Schaber’s observation has been proven to be true. In thirty-six years of law practice I have continually struggled to balance the demands of my professional life with other parts of my life. The balance has at times been quite uneven, but I continue to make a committed effort. The demands of the legal profession are a part of my life.

 

We are often too busy to even think about tips from others. These 5 tips don’t take long to read, but a lifetime to apply. I am still in that process and I hope that my colleagues can see the wisdom that others shared with me.

 © Copyright Michael A. Hackard, 2012. All rights reserved.  Hackard Law, 10630 Mather Boulevard, Mather, California 95655

After making the decision to take all of my cases to trial in 2011, here are the important lessons I learned as a plaintiff’s and estate trial attorney:

1.  Taking each of your cases to trial generally works in your client’s favor.

Defense attorneys (and their clients) will offer your clients pennies on the dollar for your clients’ harms and losses, until the defendant is fully convinced you will take a case to a jury of your clients’ peers. Even then, most defense attorneys (and their clients) require you to show up and begin trial (whether you get to voir dire, opening statement, or witness testimony) before offering a reasonable settlement amount. I think they do this because they know most attorneys are not willing to go to trial.

Even though I attempted to take every case to trial in 2011, only three cases actually went to trial, with one settling right before voir dire, and the other two going all the way to a verdict. All other cases I had in 2011 settled generally between 30 days out to the day before trial was to begin.

This is an important lesson I learned. It is very likely the only way you will obtain a fair settlement for your client is to be prepared to take your case to trial—and then do so if the defendant refuses to offer a reasonable settlement.

2.  Jury instructions and an elements outline are mandatory.

When I first became an attorney I remember hearing the better attorneys say you have to know the jury instructions and create an elements outline. I had no idea what they were talking about. I do now. Before taking a case, spend time looking over the jury instructions applicable to the case you’re considering taking on. What facts do you have that satisfy each of the jury instructions? Make an elements outline of each jury instruction, including a brief description of the facts you have (or need to have) to satisfy each instruction.

This takes some work early on, but it’s worth it. It helps you focus on what facts you have, and what facts you need to obtain in the discovery process. If you learn new and needed facts during discovery, be sure to update the elements outline.

3.  Hire experts early on.

Experts are expensive—but worth every penny. There were several cases we looked at taking in 2011, but had to decline after experts told us the potential case had no chance of winning. It’s always difficult to have a conversation with a potential client letting them know they don’t have a case, but better to do this early on before putting them through the hell of several years of litigation, and then having the same conversation.

 Experts are also great because they focus you in on the facts you need to obtain in the discovery process.

4.  Don’t be afraid of motions for summary judgment.

I used to be terrified of getting motions for summary judgment. I then changed the way I viewed these motions. First, I now expect that a motion for summary judgment will be filed in every case—and that takes the surprise and fear element out of the equation. Second, because I’ve done my homework with the jury instructions, created an elements outline, and hired experts early on, I am able to file an opposition that will likely be granted. It actually makes it fun (okay, not exactly fun) to put your opposition together.

Motions for summary judgment also alert you to the arguments and facts the defense attorney will use at trial. This gives you additional time to contemplate how you plan to respond to these arguments and facts at trial. We really should be welcoming motions for summary judgment. I’m not there yet—but hope to be sometime in 2012.

5.  Bring motions to compel during the discovery process.

Defense attorneys know that many (if not most) plaintiff’s attorneys will not take the substantial time required to bring motions to compel during the discovery process. Don’t make this mistake. In 2011 I brought motions to compel at the first opportunity. It not only let the defense attorney know I wasn’t going to allow him/her to play games, it made future responses from the defense attorney so much better.

6.  Spend less time objecting at deposition and more time on motions in limine.

I used to treat depositions as an “objection” exercise. Now I don’t do that (unless absolutely necessary). If the defense attorney is questioning my client and I’m uncomfortable with the questions, I simply mark these down in my notes and indicate in my notes that I need to bring a motion in limine to keep this evidence out at trial. In most cases, these uncomfortable questions are either (1) not relevant, (2) lack foundation, (3) are inadmissible hearsay, or (4) can be kept out as “unduly” prejudicial under California Evidence Code section 352.

When you don’t object, it’s amazing how much information a defense attorney is willing to provide in a deposition that you can identify for future motions in limine. Let the defense attorney “win” the deposition—You “win” when it matters at trial when the court grants your motion in limine and keeps the bad facts out.

Worst-case scenario—the Court denies your motion in limine. At least you have the first opportunity to address these bad facts in your opening statement, which will likely remove the sting the defense attorney is hoping for. 

7.  Practice, practice, practice for voir dire and opening statement.

My poor legal assistant. I make her listen to my voir dire questions and my opening statement, over and over again. I want her to poke holes in my questions and opening statement. I also ask anyone else who will listen about these issues. The more you practice the more comfortable you become. I don’t think many defense attorneys spend time doing this—and it shows.

8.  Send defense attorneys all trial documents 30 days out from trial.

Don’t worry about showing your hand too early. Defense attorneys are extremely busy with all the cases they’re required to handle, and likely won’t have time to spend much time with your trial documents in any event. Sending defense attorneys proposed joint exhibit lists, witness lists, a statement of the case, jury instructions, and your trial brief will surprise them. Most plaintiff’s attorneys don’t do it—you should.

9.  Don’t be nice to defense attorneys.

I’m tired of hearing that we need to be civil with the defense bar. I would agree with being nice if the defense bar felt the same way—but they don’t. It’s been my experience that defense attorneys will do anything required to make your client’s case go away. It still amazes me (although it shouldn’t) that defense attorneys are willing to demonize and attack individuals who have suffered substantial harms and losses due to the defendant’s actions. The purpose is to stress the plaintiff so he/she will take a small settlement or dismiss a case in its entirety.

In one of my recent cases, the defense attorney, in deposition, wanted to know how many times my client had sex with her husband in the year prior to his death, which was caused by the intoxicated defendant. Apparently this was to somehow show they did not have a good sex life, which leads to them somehow having a bad relationship, which in turn leads to somehow my client hating her husband and glad that he’s actually dead. I know it takes huge leaps of logic to get there, but defense attorneys don’t care about the logic, they care about stressing your client and making litigation more miserable than it already is.

In another case, a large defendant corporation that manufactures surgical mesh that destroyed my client’s vagina wanted to know in deposition if my client had attempted sexual intercourse after the mesh destroyed her vagina. My client answered “yes” she attempted to one time but could not due to the substantial pain she felt. The defense attorney then wanted to know whom she attempted to have sex with. I directed my client not to answer that question based on her right to privacy. The defense attorney threatened to bring a motion to compel. I told the defense attorney to bring the motion. I couldn’t wait for the court to hear this. Of course the defense attorney already heard two treating physicians of my client testify at deposition that it was very unlikely she would ever have pain-free intercourse for the rest of her life due to the substantial scarring. But that wasn’t enough, the defense attorney wanted to know whom she tried to have sex with. 

Finally, in a recent sexual harassment case, the defense attorney wanted to know how many sexual partners my client (a female) had during her lifetime. Then he wanted to know how many sexual partners in the past 10 years, then 5 years. I did not allow my client to answer these ridiculous, invasive, and despicable questions.

Am I still supposed to be nice to defense attorneys after this type of behavior? I say no. Let’s stop being nice to defense attorneys who choose to act inappropriately. 

10.  Never give up.

Never giving up may be the best trait of a trial attorney. No matter how bad things seem, don’t give up.  Everyone will tell you that your client won’t win or doesn’t have a case. You’ll hear this multiple times from the defense attorney; you’ll hear it from the mediator; you’ll hear it from a judge at the mandatory settlement conference; you’ll hear it from the doubt that creeps into your thought process when you’re attempting to fall asleep at night. Don’t give in to these doubts.

The good news is that most defense attorneys advise their clients to offer almost nothing before trial to settle the harms and losses they’ve created. These insignificant settlement amounts make it easy to go to trial—after all, you won’t do much worse if you get defensed at trial. That makes it easier for me to handle the doubt that I will inevitably feel going to trial. Chances are, if you don’t give up, the defendant will come up with a reasonable settlement amount a few weeks out from trial. But if they don’t, take them to trial. There’s no reason not to. 

We posted over 100 blog articles in 2011.  While we enjoy writing each of them, there are a few favorites we have over the course of the year.  Each of the posts that made our top 11 list was also very popular with readers based on comments and feedback we received.  Here is a list of our top 11 blog posts in 2011:

1.         Top 10 Books for Trial Attorneys.  We receive quite a bit of feedback from this post.  And it remains a very good list of great books to read—must reads really—for any trial attorney.

2.         Justice Isn’t Fair.  A little post on the difference between fighting for justice (which can be expensive and emotionally draining) versus obtaining a fair result from a financial perspective. 

3.         Legal Lingerie: Fighting Over Personal Property In California Trusts and Wills.  Having the word “lingerie” in a law blog title seems to get you noticed.  But still an interesting post on what happens to the tangible personal property in an estate. 

4.         Capacity Lite—How Undue Influence Can be Used To Overturn a California Will or Trust When Lack of Capacity Allegations Fall Short.  This is one of our favorite posts on how undue influence can be used to overturn Wills and Trusts—a very popular post. 

5.         Court Decision Causes Consternation for Arbitration Clauses in Trusts.  The growing use of arbitration clauses in things like insurance contracts can be a real problem for unsuspecting parties, but the use of arbitration clauses in Trusts hit a roadblock this year with the Court’s decision in Diaz v. Burkey.  This post is a quick recap of the Court’s interesting ruling.

6.         Which Will Wins the Race?  The Documents Required For a Proper Will Contest Lawsuit.  Few things are more confusing than properly filing a Will contest in California.  This post was a big hit with lawyers and laypeople alike. 

7.         Influencing the Court to Find for Undue Influence in California.  This is our second blog post of the subject of undue influence that made our top 11 list.  This is a more in-depth look at the subject of undue influence and how it can be proven in Court. 

8.         No-Contest Clauses Do Not Apply to Challenging a Trustee’s (or Executor’s) Actions.  No-Contest clauses are a very confusing area of Trust and Will litigation practice.  But one of the areas where they do NOT apply is in challenging the bad acts of a Trustee—yet so many people don’t realize their proper application.  We received a lot of feedback on this explanatory post.

9.         The Beneficiary’s Burden.  California Trust and Will lawsuits are hard on everyone, especially the beneficiaries.  While the beneficiaries don’t have any legal duties, they do have a burden in bringing the lawsuit all the same.

10.       The Settlor Made Me Do It.  The California Court of Appeals clarified in “Estate of Giraldin” when a beneficiary is entitled to an accounting and damages for breach of trust for actions taken while the trust creator is still living.  This was new law for California.  And it also prompted a call from one of the Giraldin children, which I very much enjoyed!

11.      Motions to Compel = A Necessary Evil.  When you hold the opposing party to the requirements of the Discovery Act, you’re going to have to file a few motions to compel.  Seems everyone (well not everyone, but many people) want to bend the rules of properly responding to discovery.  This is our take on filing motions to compel when necessary.

Honorable Mention.

We have just a few more favorites—it’s hard to narrow over 100 posts down to 11 (but “top 11 in 2011” is a better title than top 15 in 2011).  So here are a few extra posts that we call our “honorable mentions:”

12.       Our Video Series.  We were, and still are, very excited to post our first series of videos on our blog in 2011.  We received tremendous positive feedback on our videos (although we may look a little stiff).  This is just the beginning; we have a few video surprises in store for 2012.  Here are all of our 2011 video series.

13.       Becoming a Discovery Ninja.  Responding to discovery thoroughly and promptly is a goal of ours in every case.  Here are a few tips on how to make that happen on a regular basis.

13.       The Wayward Will of Irving Duke.  So you want to draft your own Will?  Take a lesson from Irving Duke, his use of the words “at the same moment” caused his two favored charities to lose $5 million—passing instead to his two nephews who are not even mentioned in the Will!  A lesson on the trickery of the English language.

14.       Will Capacity vs. Trust Capacity: The Mental Measuring Stick under California Law.  Well this post is not from 2011, it was posted in December 2010, but still a useful discussion on the different types of capacity.

15.       The Intentionalities and Formalities of California Will Creation.  This is also a 2010 post that gives a basic primer on the elements required to create a valid California Will.  This is the same format we use to teach law students in our class at Chapman Law School.

We hope you enjoy these posts, and many others we have provided in 2011.  We look forward to giving you even more useful information in 2012.  

Happy New Year!

As a client, you want help. As a lawyer, I want to help you.  So why doesn’t every lawyer-client relationship result in a perfect fit?  As with any human relationship, there are a few things that can stand in the way of a good match.  For lawyer-client relationships, I consider the following topics of primary importance:

Expectations:  Lawyers have a certain expectation as to how the client should act, and clients have their expectations on how lawyers should behave.  As with any relationship, having appropriate expectations is key for all concerned. 

Have you ever been involved in a lawsuit before?  Many people are shocked and surprised at how our legal system actually operates.  It is slightly less efficient than Congress.  A lawsuit is like the old roach motel commercial, your suit can go in, but it can’t get out.  Well, eventually it can, but not in any reasonable amount of time.

So lawyers need to help clients have proper expectations about their case.  As my partner, Stewart Albertson likes to say: “A lawsuit is a marathon, not a sprint.”  Get ready to run for a long while.  But lawyers aren’t always good at setting expectations. We are familiar with the slow legal system so a case that takes two to three years to resolve is normal to us; whereas an uninitiated client may find that amount of time outrageous.

And clients, in turn, need to face up to the reality that the wheels of justice turn slowly.  Your case is no exception.  While the advent of email, smart phones, and Facebook may let you operate in many ways at light speed, our judicial system doesn’t work that way. 

The bottom line: be a wary traveler.  Know what you’re getting yourself into before going down the lawsuit path.  Not every lawsuit can be avoided, but believing that a lawsuit will be resolved quickly is an unreasonable expectation—no matter how outstanding your lawyer is.

Personality:  Not every lawyer is right for every client (and vice versa).  You need to feel that your lawyer has your best interest at heart and will take your cause on as his or her own.  Different people have different ways of showing their dedication to your cause.  And different people have different ways to give and receive information. 

For example, a client who is reserved and logical may not appreciate a lawyer who is loud and energetic.  Or a gregarious, creative client may not have patience with a quiet, deliberate attorney.  Some personality types fit together better than others.  This doesn’t mean that the lawyer or client is bad, it’s just a personality fit, it either works or it doesn’t.

The bottom line: Finding the right personality fit, someone you are comfortable with is vitally important.  You’re stuck with your case for the long haul, so you should be comfortable with your lawyer.

Follow-through:  Lawyers don’t have the best reputations when it comes to consistent follow-through on cases.  Most lawyers have more than one case in their office, so it can be difficult to give individual attention to each case, especially since multiple cases can flare up at the same time.  But it is the lawyer’s job to manage his or her case load so that each client receives appropriate attention at the appropriate time.

Clients should know that cases ebb and flow (they have busy times and slow times).  Most cases don’t need constant action every day or even every week.

Every person, however, has different expectations as to the amount of attention they or their case should receive, and every lawyer has a different capacity to be attentive. 

The bottom line: Discuss the amount of follow-through you expect from your lawyer and have him or her explain how he works to keep clients informed on their case.

Results:  Wouldn’t it be great if you could hire a lawyer for a guaranteed win in your case?  That would be one expensive lawyer (even more expensive than the typical lawyer).  The truth is you can never hire an attorney to guarantee a win on your case.  And any lawyer who says he or she never lost a case (especially never lost a trial) hasn’t tried very many cases—if any at all. 

You hire a lawyer to provide strong, experienced counsel on your case and many times, that leads to a win.  But that’s out of your control and out of the lawyers control as well. Judges and juries make decisions.  The lawyer’s job is to fight hard, write well, and argue persuasively for your cause.  If you receive this type of representation, then you have a good result. 

The bottom line: You don’t pay for results, you pay for thorough preparation, a good fight and hard work.  We all hope that equals a good result and oftentimes it does.

The better fit you have with your lawyer, the better chance you have to be successful in your case because you and your lawyer’s definition of success will be aligned.