Lawyer thread

Liability bros:

Have a weird situation that I can not find any guidance on. I've called the State Bar on Ethics, and they pointed me to some Opinions that aren't exactly on point.

Cliffs: We represent a general contractor that was renovating a local school. They hired a subcontractor, and the sub showed up on a day they weren't supposed to (they were behind schedule, etc.). Shady stuff goes while they're there, yada yada yada, an employee of the sub falls off the roof and dies. There is an indemnity provision that requires the sub to indemnify the GC, so we will likely be opposed, although not directly in the underlying tort lawsuit.

This just happened a few months ago. No suit filed. Decedent has retained an attorney, the sub has not. We have already been retained to represent the GC. We want to track down and talk to the people that were present that day to get statements, but only the sub's employees were there, none of our people. We want to get their statements locked-in ASAP.

Question: What is the protocol on talking to employees of an unrepresented party when that party (but NOT the individual employees) will almost certainly be involved in the lawsuit/opposed to you (they will be involved (a) re: the indemnity issue, and (b) work comp/subrogation issues)?

The most pertinent Alabama ethics opinion says I can talk to them as long as they aren't "managerial employees," meaning their decision can't bind the company/they can't dictate the litigation. However, while it says I only can't talk to managerial employees (which the day laborers that were present that day certainly will NOT qualify for), it also says that I can't talk to anybody that "could impose liability on the company." Via vicarious liability, technically any employee can "impose liability on their company."

Just wondering if anybody has ever had anything similar arise re: speaking with an unrepresented party that will likely become represented, and likely opposed to you, in the same lawsuit in the future.

 

Do ethics rules allow you to hire a PI to take recorded statements?

Check if your local rule 27 to see your options for precomplaint discovery.

 

You can't talk to him if he's still actively employed by the sub without giving the sub an opportunity to hire counsel first. Now if he quits his job, all bets are off.

 

My answer would have been that you have to inform him of the potential lawsuit, his potential liability, and tell him he can speak to attorney before talking to you if he wants, but also tell him that you have no intention of filing a suit against him because he has no money to pay you anyway and the sub is vicariously liable for anything he did anyway.

This could be right too, I really have no idea. I just don't think you can be completely precluded from talking to a non-managerial witness if they're a co-employee.

 

I loved last summer. Went to class. Would exercise then review for a few hours by the pool and do whatever I wanted at night. It's just all repetition. The more you review the quicker you'll be able to go through the notes. Don't even stress until like mid July and even then if you've put in the work you'll be fine.

 

I attended the classes to make myself feel like I was doing what I needed to do. I didn't get anything out of them. My advice is to do whatever you want until July 4. After that, buckle down.

 

It's not a problem. Just have to understand that they post 1-2 days late (annoying as fuck) so you'll be a little behind on the schedule.

 

Take it as seriously as possible. Friends I had that didn't pass are the ones that slacked off until the last few weeks and they were already too far behind. They retook in February, studied a lot harder, and passed.

I went to Barbri lectures for the first few weeks then transitioned to watching them online. I still worked out 4 ish days a week just to have a break from everything.

 

I think bar prep is a pretty personal decision. I found that more important than actually learning bar material was convincing myself I was being diligent, which kept my nerves down. I studied with my GF (now wife) and another friend of ours. We did Themis (so it was all online, but is otherwise the same as BarBri). Pre-July 4 I worked out in the morning, started bar review "class time" at 9am, took a break for lunch around 11 or 12, worked on application and study questions until about 3 or 4, then reviewed the next day's material in preparation for watching the lecture for about an hour. We were done around 5 each day after putting in about 6 hours of actual work and took the rest of the day off. Maybe once or twice a week I spent time in the evening doing full practice sections. Free evenings and nights to hang out, drink, BBQ, etc. were important. Also went to the pool during the day for a few hours a few days a week, but typically just laid out and didn't work there.

After July 4 we buckled down further, added a lot of additional practice test time, and probably spent 8-10 hours a day doing bar prep until about a week before, when we bumped it up to 12 hours for the last 4 or 5 days. Took the day before the exam off. Best thing is to just not get behind by more than a day on the schedule at any point. More than that becomes difficult to catch up and can be the source of a lot of anxiety.

Also stay away from the douchebags who either brag about not having to study because they're getting 80%-90% on practice tests, or who say they are studying 14 hours a day from the start. No matter which scenario, they're probably lying, and it does't matter to you. If you are that guy, stop being that guy, because nobody believes you or likes you.

 

Went to barbri lectures in the morning. Maybe review in the evening.

After the fourth, had a study partner that id study with at her place from about 9 until 9 (breaks for food and sex). Once or twice a week, I'd leave her place and drink with my friends to unwind - in bed by 1130 or so.

Recommend the flash card method of studying. You may not know the answer but you rack up points in sc listing out various elements and rules. Plus or questions are generally worded to where you have a pretty good idea of what they're testing and can just word vomit after that.

 

I worked during May, June, and early July so my schedule was a little different. Don't worry about going to class. Make sure you listen to the lectures, but you can do it on your own time. Going to class is really just about keeping yourself accountable, but I'm an early riser and class was from like 9-12 which was right in the middle of my prime/study work time so after a few weeks I just skipped class and watched it at night or copied someone's notes after class. I probably worked about 3-4 hours five days a week during June, then crammed like a mother fucker in July.

I actually typed out a really long email last night to my old roommate who just finished school and will be taking the bar this summer. It's long. Sorry. I'll just post excerpts that relate to the MBE and all that. We took the Uniform Bar Exam so your state is probably different, but the points are still kinda applicable.

Spoiler

Multistate Bar Exam (MBE): This is the multiple choice part of the exam. The only subjects that are tested in multiple choice are Torts, Contracts, Property, Con Law, Criminal Law, Criminal Procedure, Evidence, and I believe Federal Jurisdiction is now an MBE section.

Multistate Essay Exam (MEE): This is the big essay portion of the exam. It tests all of the above MBE subjects, plus other subjects which can only be tested on essay (Agency and Partnerships, Conflicts of Law, Corporations, Family Law, Wills, Trusts, and Secured Transactions. However, I'm not positive if secured transactions is still tested. It was for us along with Payment Systems (commercial paper) but I know for a fact payment systems is no longer tested so secured transactions might not be tested either.)

The second day of the exam is all multiple choice, otherwise known as the MBE. They'll give you 3 hours to answer 100 questions of multiple choice questions in the morning, and then 3 hours to answer 100 questions of multiple choice in the afternoon. The MBE only tests on Torts, Contracts, Property, Con Law, Criminal Law, Criminal Procedure, Evidence, and Federal Jurisdiction. This means there will not be any multiple choice questions on wills, trusts, corporations, etc.

You should spend about 65% of your time learning the MBE subjects and 35% of your time learning the other subjects. This is because the MBE is worth about 40% of the total exam. While the MEE is also worth about 40%, the MEE also tests the MBE subjects. So, for example, it's important that you know contracts like the back of your hand because contracts will assuredly be tested once on the MBE, but it can be tested again on the MEE, while something like corporations can only be tested once on the MEE, if it's even tested at all. I think it's probably a safe rule of thumb that you can expect to get at least two essay topics on MBE sections. The MBE sections also just have a shit load more material. Contracts and property are just an ungodly amount of information while family law really isn't that much. Spend the majority of your time on the MBE subjects.

As for actually how to study, you'll figure that out on your own. I recommend that you follow the course's instructions. You'll probably get behind the course because the course pace is basically 15 hours a day every day for the next two and a half months. That's just not possible to do, but if you semi-keep up with it then you'll be fine. If you follow the course then you'll be good.

My only other advice is make sure you take your class notes and use your lecture book, but the best book to study will be the Conviser Mini Review book. That thing is awesome. The lecture book only touches the main points of law. The Conviser Mini Review actually talks about minor issues and subtleties that will be the basis of the bar exam issues. If you notice a discrepancy between the lecture book and the Conviser Mini Review, then you can turn to the big outline books. Otherwise, stick to the lecture book and the Conviser Mini Review.

Miscellaneous pieces of advice:
Flash cards worked great for me.
Make charts for con law, evidence, fed jur, and really anything in which there are different standards, etc. This helped me a ton to separate everything out and keep everything organized.
Take notes for the practice multiple choice questions online. Don't just rush through them to get to the next section. A lot of them deal with discrepancies and issues in the law that will likely come up on the exam. But then again, don't go overboard with it because a lot of the questions are super in depth and will never get asked.

Basically, the bar exam is about knowing the big issue parts of the law, and knowing about 60% of the subtleties. You can't possibly know everything that will be tested. You're about to get about 5,000 pages of bar exam materials and you just can't know all of that. So you have to pick and choose your battles. You have to know a little (well, more than a little) about everything instead of knowing a lot about some things. Concentrate the majority of your time on the MBE subjects. Keep up with the course as best you can and use the Conviser Mini Review as your Bible and supplement it with the lecture book.

 

You know what's some bullshit? That as the appellee in state supreme court, I can't file a response to the appellant's reply to my appellee's brief unless I cross-appealed. They get two filings and I get one. I still think I'm good, but it gives them two bites at the apple and only gives me one.

 

It's dumb, but it's designed to prevent endless back and forth filings of replies. But yea, I think it should at least allow for one two responses by each party.

 

Appellate work can be and usually is a major pain in the ass. We have oral arguments this afternoon in one of ours. Win or lose, just can't wait to be done with the damned thing.

 

I actually like it. I think my least favorite thing about litigation is actually having to deal with people, and just being able to read and write with everything already in front of me is quite nice sometimes.

 

Currently observing an ED trial in the middle of nowhere IL.

Same evidence, same plaintiff, same project, different landowners. Boring as shit but extremely valuable.

 

The Workers Comp Appellate Division in GA gives you five minutes for oral arguments. What the fuck do you with only five minutes on a complicated legal question when the judges are chiming in with idiotic questions?

 

Well I haven't done that yet, but when I do I'll make sure to come back and bitch about that too

 

Pre-July 4
Stayed at school. Was taking a bar for a state I didn't go to school in, but there were 4-5 of us who were taking that one so we set up to watch the video in the morning in a classroom at school. Kept me accountable and got me out of bed in the morning. Then, I'd go home, eat lunch and dick around for an hour or so, maybe go to the pool. Get back and review notes and do some of the assigned work from 2-3 until 7 or 8. Then I'd go out to dinner or just dick around at home doing whatever I want.

After July 4, I bucked down and would pretty much do this exact thing every day. I had moved back home with parents and had a separate office where I could work without being distracted:
8 AM: Wake up, eat breakfast
8:30-12: Study
12-12:30: Lunch break, watch some TV
12:30-4: Study
4-5: Gym before the after work rush
5-7 or so: Hang out with family, eat dinner
7-11: Study more.

Got to get in around 12 hours a day of studying while still leading a relatively normal life. I would take a Saturday or Sunday off up until about a week beforehand. I also pretty much abandoned the BarBri recommended stuff, and was just taking practice MPQs and outlining answers to essay questions. I don't see the utility in actually writing out an essay, just making sure I saw as many issues as possible and had an idea of how to apply rules to them. I also abandoned subjects where I was consistently scoring high in favor of taking practice questions for subjects where I was consistently scoring low.

 

On this note, I forgot to add that I don't think I wrote a single practice essay out. Read the question, spend a minute or 2 coming up with some shit you'd write, check to make sure it's remotely close to the model answer. If you aren't an idiot, the essays are fine. You'll score well on most of them by default from studying so much (or it's an easy essay), and if you don't know the rule, everyone else doesn't either, so just make something up.

 

Just witnessed an expert testify about his fees on direct without an objection.

Smh am I missing something in thinking this is no beuno?

 

Also, interestingly enough, I have somehow basically become second chair with the amount of advice I'm proffering.

Better get a fee outta this bitch.

 

I did--and would recommend you--write out at least a few from each category early on the process, because the name of the game with the bar is familiarity, but generally speaking I quit doing that and essentially generated an outline in my head or on paper in the manner described above. Saves a lot of time, which allows you to address more practice questions (hence more issues which may appear on the test).

 

Now have 10 jury trials under my belt. Getting 2-3 a month now.

Voir dire is easily the most difficult part to do well. A lot of truth to the adage that's where cases are won and lost.

Six months ago I had no idea what I was doing. Now I can get blood evidence in, drugs, videos, business records, warrants, etc with no issues and can do a half way decent job crossing a witness.

 

That's awesome. Have my first one next month. Clear liability, only on damages. Still excited.

My toughest thing to realize so far, in only ~3 years of practicing, is actually doing everything with an eye towards trial. Taking depositions with an emphasis to use at trial rather than just fact-finding missions, getting certain pieces of evidence in, etc., because literally every single case I've worked thus far has settled. I realize over 99% of cases settle, and because we represent insurance companies we're often just managing risk rather than practicing law, but it's just hard to get too invested in it if you know it's going to settle. Especially with the clear liability cases where our driver just plowed into the back of some stopped cars, I can get very apathetic when preparing for depos, hearings, etc. Even the cases in which I thought liability was highly questionable, we settle.

I'm sure the first time one of my depositions is read into the record at trial, and sounds fucking awful, it'll hit home for me. Guess I need a reality check.

 

Did y'all know skating rinks are afforded almost absolute immunity from personal injuries? Never would've thunk it

 

If anyone needs a model brief for filing a Motion to Fuck This Court, here is a good model filed in the federal court for the Northern District of Georgia:

http://www.scribd.com/doc/262792039/Fuck-This-Court

 

bankruptcy

 

Ahh good thinking. With the stakes being so high in M&A, there's a lot of blood evidence.

 

Criminal (prosecutor).

Like OopsPowSurprise but the opposite.

 

If it ain't equine law, I don't care.

 

I wonder how much BP's royally fucked up settlement agreement cost them compared to what it should have cost them

 

So I've been put in charge of working on a $9 million memo (18 mill swing) to submit to the court in a case.

Appreciate the vote of confidence, but that pressure game ridiculous bro.

 

Total sham of justice currently transpiring in Illinois...

Judges across several counties are straight up excluding Defendant testimony across the board on extremely tenuous bases--including that the Plaintiff doesn't know the expert's testimony even though they refused to depo him.

Worst part is they are waiting until it reaches trial, putting on their testimony, then excluding the experts before the Defendant can put on anything.

Honestly, the biggest joke of jurisprudence I will ever see.

 

Has the class action against Examsoft been discussed yet? They're settling the case, and if you took the July 2014 bar exam then you get like $90 or so. I'll take it.

 

That seems pretty ridiculous.

Are yall going to start noticing depos for your own experts to beat the strategy? Without seeing the actual legal argument, that seems like it would defeat their strategy.

 

We discussed doing that exact thing today. Might end up doing it.

At the end of the day, everything seems to be going for naught. The judges appear to be bent on excluding anything the Defendants want to produce.