If you are one of the many retirees without having prepared a financial plan, it is not too late to do so. Many of our retired clients with significant retirement assets and other investments are not certain of how long they will be able to live their desired lifestyle. For some it is a matter of procrastination or fear; others have been working so hard to give their children a college education or help elderly parents that they have not taken time to plan for themselves.

It is NEVER too late to plan the rest of your life.

If you are willing to take the time to gather your records and think about your dreams and wishes for your future, the financial planning process can give you the peace of mind to take advantage of the assets you have worked so hard to accumulate.

What is the financial planning process? It is a systematic approach of identifying goals, gathering data, obtaining recommendations, then implementing strategies to accomplish these goals. The result is a comprehensive written plan consisting of:

1. Cash flow management
2. Retirement planning
3. Risk management
4. Investment planning
5. estate and, elder law planning.

While the financial planning process may be the same regardless of one’s age, retired individuals have unique needs and considerations. Their income will no longer be dependent on their labors, but will generally come from a combination of personal investments, retirement plans and government benefits. Retirees are faced with the prospect of managing their investments wisely to produce an adequate current income, while protecting purchasing power from inflation. Most traditional pension plans do not have cost of living adjustments.

While social security is indexed for inflation, this benefit provides only a base of retirement income for most individuals. For the affluent, social security may account for only 20% or less of desired income. Many early retirees will have 30 or 40 years during which they will have to rely on their investments to maintain their desired lifestyle. At the same time, they need to be prepared for lifestyle changes in the event of health problems.

Disability or incapacitation are often feared as threats to one’s independence and quality of life. Finally, many are faced with the desire to transfer their wealth to succeeding generations to minimizing the impact of income and estate taxes.

A good financial plan should include an Action List for implementing the plan’s recommendations. It should include such items as:

A. Establishing an emergency fund
B. Tracking expenses
C. Long Term Care Insurance

If you have stock options, it should include a strategy for exercising them.

It may also include family and charitable gifting strategies to reduce the size of the taxable estate. Also, the plan should include targeted rates of return for your qualified (retirement) and non-retirement investments and specific investment recommendations tailored to your unique situation.

Even the best plan is worthless if allowed to sit on a shelf unimplemented. Finally, to be of continued usefulness, the plan needs to be monitored on a regular and periodic basis to keep up with the changes in your life.

See the following “Capital Punishment by Confiscation”; this illustration demonstrates the consequences of no Estate and Elder Law Planning.

CAPITAL PUNISHMENT BY CONFISCATION
YOU START WITH THIS MUCH IN YOUR TAX-DEFERRED PLAN

$842,288.00

(A) SUBJECT TO 50% FEDERAL ESTATE TAX.

The tax due is: $421,144.00
Balance available: $421,144.00
(B) SUBJECT TO THE GENERATION SKIPPING
TRANSFER TAX.

The tax due is: $ 0
Balance available: $421,144.00
(C) SUBJECT TO FEDERAL INCOME TAX

Assume 38.6% Rate.

The tax due is: $162,561.58
Balance available: $258,582.42
YOU START WITH A PENSION OF: $842,288.00

YOUR TAXES PAID EQUAL: $583,705.58

YOUR BENEFICIARIES RECEIVED: $258,582.42

ACTUAL TAX LOSS: $583,705.58

OR

69%

Courtesy of: Steven W. Tarta, Attorney at Law. 45 N. Broad Street Ridgewood, NJ 07450 PHONE 201-444-8448 E-MAIL: TARTALAW@ATT.NET Fax 201-612-0827Please be sure to check out www.tartalaw.com for estate planning learning center information.

A recent court decision created a substantial loophole for insurance companies, which can hurt contractors. Although the court decision suggests that it does nothing more than interpret an insurance policy, it doesn’t make a great deal of sense from a logical standpoint.

The case involved deciding when an insurance company has the duty to defend and when an insurance company has the duty to indemnify its insured, in this case, a contractor. The duty to defend requires that the insurance company pay for the defense of a claim. The duty to indemnify requires the insurance company pay for the covered damages found to be caused by its insured.

Most professions in the state of California are subject to a great deal of regulation. Regulations are passed by an administrative body such as the Contractors’ State License Board. Although regulations don’t carry the same weight as legislation, they’re very much part of the law governing the regulated profession. With respect to contractors, the Contractors’ State License Board has a number of regulations concerning the classification system, discipline, etc.

Hearings pertaining to violations of those regulations are handled through the Office of Administrative Hearings. This is an administrative court that makes a proposed decision that the Registrar will adopt or not adopt. Quite often, the matter being complained of is poor workmanship or deviations from accepted trade practices.

We have always argued that if the violation of the License Law also triggers an insurable event, then the insurance company should both defend and indemnify the contractor, because that is the harm that was covered by the insurance policy.

This is what the contractor purchased insurance to cover. The most recent case now holds that the insurance company has neither a duty to defend nor the duty to indemnify the contractor in a situation pending in an administrative tribunal.

There is an axiom in the field of law that the duty to defend is greater than the duty to indemnify. Simply stated, if any part of a claim is covered, then the insurance company has a duty to defend the entire claim (lawsuit) even though the result may be that a portion of the lawsuit was not covered. Based on this theory, we have quite often asked an insurer to help in the defense of a disciplinary matter stating that the discipline would be imposed as a result of an insurable offense.

We have also argued that restitution ordered by the tribunal for “property damage” is covered. However, this recent case held otherwise, based on the language in the insuring policy. Typically, those policies discuss “a suit seeking damages” and “all sums that the insured becomes legally obligated to pay as damages.”

The court interpreted that language to mean only as a result of a civil action would an insurance company be required to either defend or indemnify.

In other words, there would have to be a lawsuit filed in court only.

As said previously, this doesn’t make a great deal of sense, but probably is an accurate analysis in interpreting the language.

Law Offices of Abdulaziz & Grossbart
P.O Box 15458
North Hollywood, CA 91615-5458
(818)760-2000
(323) 877-5776
(818)760-3908 FAX
Web Site www.abdulaziz-grossbart.com

As most lawyers know, legal recruiters have become a fact of life. Although telephone calls from recruiters may seem intrusive – or even annoying – during a hectic workday, a savvy lawyer (even one not interested in changing jobs) should not ignore these calls.

Instead, you should take a moment to listen before deciding whether or not to continue the conversation. By speaking briefly with a recruiter, you can gain valuable information about the legal market and your marketability. Moreover, you can develop a relationship with someone who can be an invaluable asset to your career, either now or in the future.

This article is intended to help you evaluate legal recruiters and get the most out of working with them. With the number of legal recruiters continually multiplying, it is more important than ever to carefully choose whom to work with and to know how to form a successful relationship.

I. Before You Choose A Recruiter

· Define your reasons for looking and your career goals. What aspects of your current job are unsatisfactory? What criteria are you seeking in your ideal job?

· Be flexible. Having figured out exactly what you’re looking for, understand that you may need to be flexible. Although the “ideal” job may be hard to find, you would be surprised how a few small changes can substantially increase your job satisfaction. You should avoid relying on generalities when evaluating potential opportunities.

For instance, categorically excluding all large firms from your search may dissuade a recruiter from telling you about an opportunity that (other than size) matches all of your criteria.

· Update your resume. Tailor your resume to the position you are seeking. Also, be as descriptive as possible. For example, it is better to write “took and defended approximately 20 depositions” than to simply state “experience with depositions.”

· Obtain a copy of your final law school transcript. Every law firm requires a transcript at some stage in the process. Many firms will not even review your resume until they receive your transcript.

· Think about potential references. Most law firms and companies perform reference checks. These are typically conducted after an employer has made you a contingent offer. However, it is advisable to determine who your references will be prior to interviewing.

· Select a writing sample. Many law firms require a writing sample before they will make an offer, and some require it before the first interview. Choose your writing sample with great care. A single typographical error can mean the difference between a job offer and a rejection.
II. Choosing A Legal Recruiter
· Make sure the recruiter is a member of NALSC (National Association of Legal Search Consultants). NALSC is the only national professional organization of legal search consultants and its members must adhere to a strict Code of Ethics.
(Copies of the Code can be obtained from NALSC members or through NALSC directly).

· Demand confidentiality. A recruiter should unequivocally guarantee you complete confidentiality. Do not hesitate to ask what steps he or she takes to keep your search confidential.

· Ensure control by express authorization. A recruiter should never submit your resume anywhere without your prior express authorization. An unauthorized submission is not only unethical, but it also severely compromises your confidentiality. Unscrupulous recruiters (unfortunately there are some) have been known to submit a resume en masse without the attorney’s consent.

If a recruiter sends your resume anywhere without your prior express authorization, you should report this unethical conduct to NALSC.

· Evaluate the recruiter’s knowledge. A recruiter should know about the position(s) he or she is profiling (e.g., requirements of the position, size and composition of the firm and/or practice group, firm culture). A recruiter should also know about the legal market in which he or she works (e.g., Chicago).

· Be wary of recruiters with grandiose claims. Some recruiters claim to have “exclusive” arrangements with employers. This claim may be true, but exclusives (especially with law firms) are rare. Recruiters have also been quoted as saying that they know of every opportunity in town. Although a few of the older and more respected search firms in Chicago may know about the vast majority of positions, it is highly unlikely that any one recruiting firm will know about every single available position in Chicago.

Often such claims are nothing more than an attempt to ensure that you only use that recruiter. Using only one recruiter is a personal choice and should not be forced by such deceptive tactics.

· Do not sign an exclusive agreement with a recruiter. Some recruiters require candidates to agree in writing at the outset of their relationship to work only with them.

Not only does this foreclose potential opportunities through other recruiters, it is unlikely that you will know at this stage whether you like this recruiter and whether he or she will do the best job for you.

Forcing you to sign an exclusive agreement is often a bullying tactic. Loyalty should be earned, not forced. There are very limited circumstances when it is acceptable for a recruiter to ask you to work with him or her exclusively. This may be appropriate if the recruiter knows that there are a finite number of firms that would be a good fit for you due to your credentials, practice area or other specifics.

However, even in these rare circumstances where an exclusive relationship may be appropriate, a written agreement is never necessary.

· Beware of the overly aggressive recruiter. A good recruiter should be enthusiastic and responsive. He or she should not try to push you into a job by disparaging your firm or misrepresenting an opportunity to make it more attractive. If you think a recruiter is too pushy or aggressive, chances are employers feel the same, which could hinder your job search at its inception.
III. Using A Legal Recruiter

· Keep all information disclosed by a recruiter confidential. Just as the recruiter should keep all of your information confidential, the reverse is equally important. The foundation of a recruiter’s business is information, and anything he or she discloses to you is confidential and proprietary.

If a recruiter tells you about a specific job opportunity, you should not contact that employer directly or disclose this information to another recruiter or person. If you want to be considered for a position disclosed by a recruiter, you should submit your resume through that recruiter. Mutual confidentiality is the key to a successful relationship.

· Be honest with your recruiter. It is imperative that you disclose all relevant background information fully and accurately to your recruiter. For example, if you failed a law school class or were fired from a job, tell your recruiter before he or she submits you for a position. A good recruiter can help you handle such negative information in a way that will not foreclose job options.

· When working with more than one recruiter, maintain accurate records and keep everyone fully informed. You should keep records of:

(1) all opportunities disclosed to you and when they were disclosed;

(2) who disclosed each opportunity to you (e.g., friend, colleague, recruiter);

(3) where and when your resume has been submitted; and

(4) who submitted your resume to each employer. Please be aware that if you submit your resume (through recruiters or otherwise) to the same employer (knowingly or not) more than once within a six month
period, the employer probably will not interview you.

Duplicate submissions of your resume should be avoided at all costs, because they reflect poorly on you (e.g., employers may think you lack attention to detail or are desperate). If you keep your recruiter(s) up to date on your job search and maintain accurate records, you will avoid such problems.

· Keep your recruiter advised of all relevant developments. You should always let your recruiter know of any changes in your practice skills or career goals. Such information can greatly impact on your marketability. In addition, you should let him or her know when your interviews are scheduled and share your feedback immediately after each interview. Remember, your recruiter acts as a liaison between you and the employer and can help you address any issues that may arise.

· Maximize the relationship. A good recruiter can provide you with invaluable assistance during your job search that goes beyond simply identifying opportunities.

Such assistance can be in the form of:

(1) reviewing and, if necessary, revising your resume;

(2) proofreading your writing sample;

(3) supplying background information on prospective employers;

(4) preparing you for job interviews;

(5) discussing the advantages and disadvantages of various job offers;

(6) negotiating compensation and benefits; and

(7) facilitating the transition to your new job.

A successful relationship with a legal recruiter will significantly increase your chances of finding a more satisfying position.

With your help, a good recruiter can:

(1) identify more positions that match your interests, since many firms and companies do not advertise their openings;

(2) provide valuable assistance to you during every stage of your job search, such as giving you information about potential employers so you can better evaluate your options; and

(3) accelerate your search and make it far less time consuming for you, allowing you to focus on your current job while your recruiter focuses on advancing your career.

So the next time a recruiter calls you, take a moment to listen to what he or she has to say. Even if you have no immediate interest in exploring other opportunities, it is wise to establish a relationship with an ethical and reputable recruiter. This will ensure that you don’t miss out on that ideal job.
Craig M. Hoetger, Esq., formerly a legal recruiter with Chicago Legal Search, Ltd., received his J.D. from the University of Michigan Law School in 1993. He previously practiced labor and employment law at Matkov Salzman Madoff & Gunn and Jackson Lewis Schnitzler & Krupman.

Jennifer H. Seelicke, Esq., formerly a legal recruiter with Chicago Legal Search, Ltd., received her J.D. from California Western School of Law in 1996. She previously practiced land use and environmental law at Seltzer Caplan McMahon & Vitek.

The dot-coms’ demise has filled the news recently. Every day brings new reports of layoffs, CEO resignations and, inevitably, bankruptcies and liquidations.

Those who never forgot that profits, a positive bottom line and a business plan really do matter may simply shrug, “Too bad!” Perhaps it’s as natural to dance on the hoods of repossessed Porsches of twenty-something former paper millionaires as for warriors to dance on their enemies’ graves.

But what if that failing tech firm is your customer? Before explaining to your banker how you plan to collect your receivables, let’s review a few guidelines for doing business in troubled times.

Tech firm or not, the first rule is simple: trade creditors lose. According to a prominent bankruptcy, attorney, “The trade creditor should take whatever money he can get, whenever he can get it.”

In a bankruptcy, unpaid supplier bills get paid only if cash is left - after paying taxes, secured lenders, and (to a limited amount) employees. Only the owners do worse.

Diligent collections in the months before bankruptcy may even be worthless. Payments on pre-bankruptcy receivables may have to be paid back to the court, under the rules of “preferences”. Creditors who got paid recently can only keep what they would have gotten in a fair division of remaining assets.

Unfortunately, failing tech firms often have few assets that can be sold for cash to pay bills. Out of date computers often have only salvage value, and rapidly emerging privacy concerns may prevent any sale of customer data.

Perhaps old-fashioned receivables management - cutting off credit and stopping shipments - offers the best protection against new economy risks . Just don’t allow more credit than you are willing to write off.

Of course, COD always remains another option. There’s no law against discriminating against those who don’t pay bills, and “deadbeat” isn’t a protected class like race, age or sex. Some utilities are even demanding large security deposits from tech firms, rather than gamble by financing new high-volume facilities for customers with a life expectancy equal only to their current cash balance.

Yet none of these desperate measures builds long-term customer relationships. Nothing creates loyalty like standing behind a client in a crisis.

Fortunately, the law helps vendors keep doing business. To encourage credit to struggling firms, the right of “reclamation” lets sellers demand back unpaid goods shipped immediately before bankruptcy.

However, swift action is critical. Inventory gets used quickly, particularly in today’s “just in time” tech economy. Only a few days’ shipments can be stopped, so the quicker you act the more inventory you can reclaim.
However, reclamation isn’t a solution, only a last-chance at cutting losses. Reclamation also doesn’t defeat the bank lender, and doesn’t help a service provider, a more common tech vendor.

Instead, protect yourself before a bankruptcy. Converting a conventional trade account into a secured line of credit takes little work. Also, first-lien bank lenders will often accept second position behind new credit - from someone else - to keep a troubled business afloat.

Yet don’t be fooled into over-extending credit by the often-illusory security of a UCC-1 filing. New economy receivables may yield little if your customer’s customers are themselves in trouble, and lenders may not have the expertise to properly market or service high-tech inventory.

Perhaps the best advice on doing business with the troubled tech firm is simply to make the best of each situation. Sophisticated creditors have long known that a voluntary, negotiated workout usually provides the greatest recovery from a failing company. The cost and delay of formal bankruptcy make it very expensive to go broke, for both debtor and creditor.

Even if the customer fails, many firms have found opportunities in buying up inventory or sophisticated computer systems at deep discounts. Even with today’s privacy concerns, customer lists and marketing information may still be very valuable assets.

Helping a struggling customer through temporarily difficult times can build lifetime loyalty for those with the entrepreneurial spirit - and knowledge of the law - to brave the added risks of the techno-bankruptcy.

Copyright 2001 Stanley P. Jaskiewicz, Esquire
As a Member in the Business Law Department, Stanley P. Jaskiewicz assists and advises privately-held and family-held businesses on a wide range of legal matters, including contracts law, secured lending and negotiated acquisitions, Internet and technology law, corporate governance, intellectual property, regulatory counseling , fine arts law and foreign law. Well-respected for his knowledge of corporate law and regulatory affairs, Mr. Jaskiewicz has published articles in journals such as the UCC Bulletin, Trusts and Estates, American Banker, The Practical Real Estate Lawyer, Entrepreneurial Edge, Philadelphia and South Jersey Small Business Advisory, Focus, The Legal Intelligencer, Small Business News Philadelphia, and Lawyers Digest. He also publishes monthly columns on Internet and Technology law in the Eastern Pennsylvania Business Journal and ADV. Advertising in the Delaware Valley. Mr. Jaskiewicz frequently speaks to client and trade groups and continuing legal education classes on current topics of interest.

By law, every landlord of a dwelling, except owner-occupied premises with not more than two rental units, must file with the clerk of the municipality in which the residential property is situated, or with the Bureau of Housing Inspection in the Department of Community Affairs (DCA), a certificate of registration. N.J.S.A. 46:8-28.

The certificate must contain the following information:

(a) The name and address of the record owners. If such owners are a partnership, the name of all general partners. If such owners are a corporation, the name and address of the registered agent and corporate officers;

(b) If the address of any record owner is not located in the county in which the premises is located, the name and address of a person who resides in the county in which the premises are located and is authorized to accept notices from a tenant and to issue receipt therefore and to accept service of process on behalf of the record owner;

(c) The name and address of the managing agent of the premises;

(d) The name and addresses, including the dwelling unit, apartment or room number of the superintendent, janitor, custodian or other individual employed by the record owner to provide regular maintenance service;

(e) The name, address and telephone number of an individual representative of the record owner or managing agent who may be reached or contacted at any time in the event of an emergency; and

(f) The name and address of every holder of a recorded mortgage on the premises.

In addition to the filing of the registration statement, landlords are required to provide each tenant with a copy of the registration certificate. This should be done when the tenant moves in. It behooves the landlord to have the tenant sign and date a copy “received”, which should be made a permanent part of the tenant’s file.

In court, a judgment for possession cannot be entered if the landlord has not complied with this registration requirement. Non-receipt of the statement is almost a standard defense by tenants who are represented by competent counsel to avoid an immediate judgment of possession. The court has the authority to stay the proceedings for 90 days to allow the landlord to come into compliance. If the landlord has not come into compliance within this 90 day period, the landlord’s action for possession will be dismissed.

About the Authour: Bruce E. Gudin, Esq. is a Partner with the firm of Levy, Ehrlich & Petriello, P.C. headquartered in Newark, New Jersey. He can be reached at (973) 643-0040, ext. 104 or by e-mail at Bruce@LEP-lawyers.com.

Common Sense Rules of Advocacy for Lawyers (an excerpt from the new book)

INTRODUCTION

The excerpt, below, is from Common Sense Rules of Advocacy for Lawyers, by Keith Evans. It’s pulled from four sections of the book: The Dimensions of Advocacy, Advocacy
as Theater, Cross-Examination, and Written Advocacy. It is
both entertaining and… brief.

The author, Keith Evans, is the de Tocqueville of advocacy: a visitor who appreciates the beauty of American jurisprudence. He studied law at Cambridge, starting as a Barrister in 1963, and continuing as a trial lawyer in California from 1975 to 1996. A distinguished professor of trial advocacy in both the U.S. and the U.K., Evans retired in 1998.

More information about the book Common Sense Rules of Advocacy for Lawyers — and author Keith Evans — follows the excerpt. Enjoy!
Dimensions of Advocacy
The Fourth Dimension: Time

Time. Your time. My time. It’s expensive stuff. Some of
you, perhaps most of you, measure your profitability by
time. Billable hours mean time. Time to the lawyer can be
enemy or paymaster. Time is a demanding mistress, a jealous
lover, a jailer, a slave driver.

It can also be elastic. Compare ten minutes making love with ten minutes having a root canal fixed. And think of how long a drawn-out six hours in a jury box listening to an incompetent, wasteful attorney can be. Most jurors have better things to do with their time. We don’t usually pay them enough to park their car, and they are giving their time as a public duty. They have to rush around outside court hours getting everything done just so they can sit there and listen to you, you, hour after hour, day after day, perhaps even week after week.

And what about the judge? Do you know how much she has waiting to be done, on the other side of the corridor? Do you know how much paper she has to look at just to stay abreast of the workload?

Time is the “fourth dimension” in which you operate as a trial lawyer, and if you forget it, if you forget it for one moment of your factfinder’s precious time, look out! If you ever give them cause to feel that you are wasting their time, they will resent you for it, and if you get your factfinder feeling resentful about you, you are a good halfway to losing your case. This is far more important than most lawyers realize.

It’s worse than that. It’s not just that the inexperienced attorney hasn’t grasped the problems of the Fourth Dimension. There is an opposite pressure that works on us and we usually give way before it. It’s a two-pronged thing.

FIRST PRONG: You’ve got a client. The client is almost certainly in court, listening intently to everything. You feel this huge obligation to make sure she feels she is getting her money’s worth. You have this strong conviction that you ought to be giving her so many questions in cross-examination, so many square feet of transcript. If you don’t do this, isn’t she going to feel that you didn’t do your best for her, that you sold her short, that you let her down?

Sure. She may indeed. And she would be as wrong as you were. This is something you must talk to her about in advance. This is part of the private advocacy that goes on between attorney and client. You’ve got to explain it, make her understand the Fourth Dimension, make her appreciate that brevity is your secret weapon. When she sees the quality of attention you are getting from your factfinder, she’ll stop worrying about it, but, yes, you do have a duty to explain all this to your client in advance.

SECOND PRONG: The other kind of pressure that will push you into wasting time is your own insecurity. You’ll be convinced that you didn’t make yourself clear enough,
didn’t say it forcefully enough, didn’t get your point across adequately. And you will repeat yourself. It’s so understandable, this fear, this anxiety. We’ve all suffered
from it and know the pressure. Don’t yield to it.
Advocacy as Theater
Rule #28: Be Brief

Do not use up a minute more of your factfinder’s time than is absolutely necessary. It works. It works incredibly well. You doubt this? I doubted it. We all doubt it. The practical rule, Be Brief, sounds like an encouragement to chicken out, not to do your best for the client, not to do a through job. It’s not so.

Being brief requires planning, real preparation, intensely concentrated thinking. Covering all the points you need to cover without a single wasted word, making the impact you need to make as economically as you possible can, is anything but easy. Getting ready to do this successfully can be hard labor. But it works and I’ll demonstrate to you why it works.

Imagine yourself sitting on a jury. The trial lawyer stands up and does his opening. He tells you a story, a story that’s easy to follow and that engages your interest. You can see very clearly why the case had to come to court. He’s made you feel a wrong has been suffered that needs to be righted. But suddenly he’s stopped. Just when you were comfortably settling in to the unexpectedly enjoyable business of listening to this interesting guy — he’s done. He has stopped before you’ve had enough. He followed the rule of all good entertainment: he left you wanting more.

You are now in a state of looking forward to the next time that guy gets to his feet. When he does, he will have your total attention. But he does it again. Even before you settle in to really enjoying it, he’s finished. And he does it again the time after that. He does it all the way through the trial. Then you come to his final summation and instead of being so brief, this time he gives you a little more. And even a little bit more is so gratifying.

By working the Brevity Rule in harness with the Tell Them a Story Rule (Rule 22) in harness with the Avoid Detail Rule (Rule 26), this advocate has you sitting in rapt attention every time he opens his mouth. When you see it done properly, it’s a delight to behold, and the contrast with the ordinary, run-of-the-mill advocate is amazing.
Cross-Examination
Rule #28 Again: Be as Brief as You Can Be

There is a special reason for this rule in cross-examination, quite apart from your constant duty to save your factfinder’s time. Almost all witnesses get more confident and more effective the longer you cross-examine them. Why is this?

When you stand up to cross-examine, the witness is almost bound to be wary of you. At this point, you have an enormous advantage: he doesn’t know how much you know. If he has been slanting his evidence, especially if he’s been telling lies, he is afraid of you and of what you might have up your sleeve.

During the first five minutes, he is assessing the situation, estimating how dangerous you are. It’s a rare witness who starts taking liberties with you at the outset. But the longer you go on without hurting him, the more confident he’s going to get. The more confident he gets, the less easy he is to control.

You may be intending to lull him into a sense of confidence. It’s useful to do this sometimes. But if that is not what you’re trying to do, you should never let it happen. If you can get everything done with a witness during those first few minutes, so much the better. If you need longer, if it’s one of those cross-examinations that can’t be done quickly, make sure you use those first minutes to convince him that he dare not relax. All these things are encompassed by the Be Brief Rule.
Written Advocacy:
Rule #99: There’s No Rule of Court Which Requires Your
Document to Be of a Minimum Length
It’s the same all the way through advocacy: brevity works wonders. If you believe nothing else you have read in this book, believe this.

Brevity is such a scarce commodity, now as over the centuries. Listen to one of the greatest of our predecessors, an attorney who used to spellbind the juries and whose economic use of English is still an example to us all, but who on this occasion was suffering at the hands of the wordy and the unfocused. Abraham Lincoln, reading a report of a Congressional committee on a new gun, raised his weary head and exclaimed, “I should want a new lease of life to read this through! Why can’t an investigating committee show a grain of common sense? If I send a man to buy a horse for me, I expect him to tell me that horse’s points — not how many hairs he has in his tail!”

Why can’t an attorney show a grain of common sense, and regard it as a point of professional honor to be as brief as possible? We have already turned up a number of reasons — the sheer weight of tradition and convention, the occasional need for the precision of the engineer, the badge-language we are tempted to flaunt — but there is another reason, a much more sinister one, and it is this.

Churning out boilerplate makes money.

A battalion of associates busily producing needless verbiage not only pays the rent, it makes a handsome profit.

I recently received a 72-page document. It was an answer to some interrogatories in a wrongful termination case. Every single interrogatory had first been objected to, then answered briefly. The objection occupied seven lines, and the identical seven lines had been reproduced, over and over again, in respect of every single request.

It was wearisome reading. It involved trudging from page to page, wading through repetitious junk to find the meat of the response. Three words were all we needed: “The same objection.” Everyone would have understood and not one of us would have complained about the missing seven lines. Two-thirds of the paper would have been saved.

And it was slightly sickening to reflect that this cynical waste of paper, time, and effort is how our profession operates. Those answers to interrogatories were absolutely typical: the generating of useless language is the norm. It pays the rent.

That pleading came from a law firm that enjoys the highest reputation. All their other pleadings have been the same. When they took my client’s deposition, they spun it out over nine days.

We all know what I’m talking about. This shameless behavior is rampant in the legal profession. And it’s not only done to make money: there’s a grubbier motive some of the time.

It is a recognized strategy, these days, to paper your opponent to death. Drown him. Use up his resources. Wage a war of attrition. Use the financial muscle of your client to drive your opponent into the ground. Beat him, not on the justice of the case, or on the right interpretation of law and fact, but by superior wealth.

There are hordes of American attorneys willing to sell themselves as mercenaries in this shabby war.

Take another look in the mirror. Are you one of them?

If your client objects to paying as much for a slender document as he would pay for half a pound of wasted paper, use a little private advocacy. Remind him of what Mark Twain wrote to Abigail — when he apologized for the length of his letter, explaining that it would have been much shorter if he had had more time.

Remind your client, too, that the slow process of distillation which makes brandy out of wine has its counterpart in lawyering, and that ten words that move your reader are worth more than ten thousand that don’t. Show him your product and explain the work that went into it. Explain, as you explained before you began your trial, that brevity is your secret weapon, but that it has to be worked for with time and effort. Do this, and you’re unlikely to have trouble with your bill.

Brevity is not only a characteristic of effective advocacy. In this profession of ours it is a badge of honor, recognized as such by the oppressed judges and by every thoughtful attorney. You want to be outstanding? Be brief.

About the Book
Common Sense Rules of Advocacy for Lawyers
Author: Keith Evans
Published by: TheCapitol.Net
Courtesy of: www.thecapitol.net
ISBN 1-58733-005-9, 240 pages, hardcover, $35

Common Sense Rules of Advocacy
for Lawyers is the
classic guide to advocacy for trial lawyers. First published in 1994, it has been hailed as the finest book of its kind (see the endorsements, below). Keith Evans explains the previously unwritten rules of advocacy, all based on the premise that the purpose of a trial is not to locate the truth — that’s what discovery is for — but to present allowable evidence in such a way as to gain a favorable opinion from your factfinder (judge, jury, arbitrator, boss, etc.).

Common Sense Rules superbly illustrates the premise that advocacy is theater, explaining the nuances of persuasion in a writing style more like a letter from a friend than a legal text. The wisdom of this book, earned through hundreds of trials, has extraordinary value, not only for the trial lawyer, but for anyone involved in persuasion and
negotiation: mediators, facilitators, arbitrators, public speakers — anyone who’s ever sweated through a public presentation. Contents include:

1. Introduction
2. The Dimensions of Advocacy
3. The Mandatory Rules of Advocacy
4. Advocacy as Theater
5. The Psychology of Advocacy
6. The Examination of Witnesses
7. Direct Examination
8. Cross-Examination
9. Re-Direct Examination
10. The Final Argument
11. Written Advocacy
12. Advocacy in the Age of High Technology
13. Conclusion

Common Sense Rules of Advocacy for Lawyers contains tips and rules that will make anyone a better advocate in 10 minutes a day. Keith Evans’ commentary on courtroom choreography will be treasured by veteran trial lawyers and a godsend for those new to advocacy. This book is a perfect gift for law school grads, a great “welcome aboard” present for new associates, and an essential reference for law schools and law firms.
Endorsements

“The book is a valuable review for the old timers and an
excellent primer for those who are starting the climb.”

  — Jacob A. Stein
     Stein, Mitchell & Mezines, Washington, DC

“The scope of the book — everything from what to wear in the courtroom to writing a trial brief — is truly impressive, yet the author maintains a tone that is refreshingly readable… I wish I had had this book when I was a young lawyer. I highly recommend it.”

  — Karl Tegland, author,
     Courtroom Handbook on Washington Evidence

“Advocacy is an art as well as a skill, and Keith Evans presents the rules of mastering that art in a very down to earth manner. Filled with humor and eminently readable, his book is a great introduction for the new lawyer and a wonderful learning tool for the advocate with experience.”

  — Sherman L. Cohn, Professor
     Georgetown University Law Center
     (first national President of American Inns of Court)

“This is a wonderful ‘Bible’ for the trial lawyer who wants to win. If only we had had this in law school!”<br>

  — Browne Greene<br>
     Greene, Broillet, Panish & Wheeler, Santa Monica, CA

“This is a remarkable compendium of useful advice presented in a straightforward, entertaining manner. If new advocates could have only one ‘how to’ book this would be it.”

  — Roxanne Barton Conlin
     Roxanne Conlin & Associates, Des Moines, IA
     (first woman President of Association of
     Trial Lawyers of America)

Copyright ©2004 by TheCapitol.Net, Inc. All Rights Reserved. Please feel free to duplicate or distribute this file as long as the contents are not changed and this copyright notice is intact. Thank you.About the Author

KEITH EVANS is a retired member of the Bars of both England and California, a Scholar of the Middle Temple Inn of Court in London, a member of Gray’s Inn and a former Honorary
Master of San Diego’s Louis M. Welsh American Inn of Court.

He studied law at Cambridge and started trial practice as an English Barrister in 1963. From 1975 until 1996 he was an active member of the California Bar.

He has handled several hundred jury trials and has practiced in State and Federal Courts as well as, in England, every court from the Old Bailey to the House of Lords.

He was forced to retire (while, as he puts it, on a winning run) after suffering a stroke in 1998.

The holder of an Outstanding Trial Lawyer award from the San Diego Trial Lawyer’s Association, he is also a distinguished teacher of trial advocacy. His book on the subject is the standard text in England and in many parts of the British Commonwealth.

He has been a visiting professor at an American university
law school, has been on the faculty of the National Institute for Trial Advocacy (NITA), and he still teaches a highly acclaimed full-day CLE seminar on trial-advocacy.

He practiced with several firms in the United States, including Gray, Cary in San Diego and the aviation litigation firm of Speiser, Krause & Cook in New York City and Washington, DC.