What I Wish I Knew When I Started My Practice

What I Wish I Knew When I Opened My Practice

Ever wish someone had told you this when you were starting out?  Speakers Lisa Clay and Patrick Walsh did a segment on this exact topic during our seminar last week in Chicago: Opening and Managing Your Practice: The Do’s, Don’ts and Everything In-Between.

As you know we occasionally post snippets from our seminar handout materials and wanted to share this today.

  • The importance of, and guidelines for, doing client intakes.
    • Just because a client wants me to represent them doesn’t mean I should.
    • What do I need to know in terms of their background?
    • Their history with other lawyers?
    • Are they frequent flyers/filers?
    • How are they going to pay me?
  • Conflicts Checks!
    • How do I do it?
    • What level of conflicts checks do I need conduct as a solo?
  • Overhead is EXPENSIVE!
    • Rent, insurance, lexis, phone Internet, etc.
    • It all adds up, and most of it can’t be passed on to a client
  • How important it would be to have other attorneys as back-up and resources for things like:
    • Covering me if I’m down and out
    • Subject matter consultations
    • Referrals on cases I don’t want
  • That I would have to be my own bill collector. I still suck at this.
  • About all the unpaid time I would lose being my own office, and dealing with computer issues, addressing phone problems, taking calls I don’t want, etc., etc., etc.
  • That I would have to fire clients (and they might have to fire me).
    • This requires that I have a good retainer, a standard disengagement letter and that I address liens.
  • How to keep track of expenses.
    • I use a credit card for everything I can, but I’m still terrible about making sure billable expenses get on bills, and that I don’t lose cabs, meals, etc.
  • I can’t take every case. Boundaries are so important for solos.
  • How much my opponents would try to use my status as a solo against me.
    • What it’s like to be threatened with “teams” of attorneys and be drowned in discovery by firms with 4 and 5 attorneys on a case
  • How important it is to cultivate relationships with other lawyers
  • That half of my job would be in the role of therapist/social worker… and that part of my job would be largely unpaid.

This seminar took place last Friday; however, you can still hear the full discussion on the audio version available here.

Motions for Summary Judgment

What I Wish I Knew When I Opened My Practice

Occasionally we share parts of or written materials created by our speakers for our programs. Below is an excerpt on Motions for Summary Judgment from a long time speaker who also happens to be a federal court clerk at the United States District Court in California.  

Motions for Summary Judgment and Partial Summary Judgment

The biggest difference between state and federal court with respect to motions for summary judgment is that a motion for summary judgment, if well-taken, is much more likely to be granted in federal court than state court.  Because federal judges have their own law clerks, they are able to devote more time to motions for summary judgment, which is one of the reasons they tend to be granted more.  However, because federal judges have more time and resources, they will also figure out if your motion for summary judgment is meritless.  Therefore, if you are going to file a motion for summary judgment in federal court, you want to do the best job possible – it is a time-consuming motion for attorneys to draft, it is time-consuming for the Court, and it is expensive for clients.

Legal Standard

In federal court, a party may move for summary judgment on a claim or defense, or a part of a claim or defense (partial summary judgment). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” FRCP 56(a).  In ruling on a motion for summary judgment, the Court’s role is not to weigh the evidence (or make credibility determinations), but only to determine if a genuine issue of material fact exists.  .  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  In determining if any genuine issues of material fact exist, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the opposing party.  Matsushita Elec. Indos. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party.  Anderson, 477 U.S. at 248-49. A material fact is a fact that might affect the outcome of the suit under the governing law.  Id. 

The moving party has the burden of informing the Court of the basis for its motion for summary judgment, and identifying the evidence, if any, “which it believes demonstrates the absence of a genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323 (1986). That evidence can consist of the pleadings, depositions, answers to interrogatories, admissions, documents, and affidavits and declarations.

When the moving party does not have the burden of proof at trial on a dispositive issue, the moving party may meet its burden for summary judgment by showing an “absence of evidence” to support the non-moving party’s case.  Id., at 325.

The non-moving party is required by Rule 56(e) to go beyond the pleadings and designate specific facts demonstrating that there is a genuine issue for trial.  Id. at 324. Conclusory allegations unsupported by factual materials are insufficient to create a triable issue of fact so as to preclude summary judgment.  Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). However, to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that the “claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”  First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968).

The Timing

Motions for summary judgment are governed by Federal Rule of Civil Procedure 56, and the time for bringing a motion for summary judgment is “any time until 30 days after the close of all discovery.”

However, this deadline will almost always be different, so, as always, you need to check the Local Rules, your judge’s local rules, and your case’s Scheduling and Case Management Order.

Motions for summary judgment can be brought as soon as you have enough uncontroverted evidence to establish your case. However, under Rule 56(d), if discovery has not yet closed, the opposing party can claim that “it cannot present facts essential to justify its opposition.” If the Court finds the opposing party’s claims meritorious, it can defer consideration of or deny the motion or allow additional time for discovery. However, Rule 56(d) requires the filing of an affidavit or declaration that demonstrates the “specified reasons” why the opposing party cannot present the facts essential to justify its opposition.  Thus, conclusory statements in the brief are not enough.

And, do not forget that Local Rules may require you to meet and confer prior to filing a motion for summary judgment.  See, e.g., Central District Local Rule 7-3.

Drafting Your Opening, Opposing, or Closing Brief

1.     Follow the standard format for a motion: Introduction, Factual and Procedural History, Argument, Conclusion.

2.     The introduction should tell the Court your side of the story in summary format, including why you win under the law and as a matter of fairness.

3.     Have a theme that is presented in the introduction, and return to it throughout your brief(s).

4.     Be organized! Make the Court’s job easy by making the facts and law contained in your brief easy to read, understand, and find. Headings that are meaningful are key.

5.     Lead with your strongest argument.

6.     But, be sure you deal with any contrary authority. Better to lose a motion than to lose your credibility with the Court. Once it’s gone, it’s extremely difficult to regain.

7.     Be an advocate for your client, but do not be nasty or unprofessional.

8.     Start your Opposition as soon as possible, even before you receive your opponent’s Opening Brief. The Opposition and all the supporting evidence is incredibly time consuming to draft and organize, and you may only have seven days in which to do it.

9.     Some judges and law clerks really do read the Reply first, so do not simply cut and paste from your Opening Brief. The Reply is a huge opportunity to tell the Court what your opponent failed to address/argue or why their evidence and argument is inferior to yours (and, in either case, why you win).

10.  Other judges and law clerks read the Statement of Undisputed Facts/Separate Statement (where required) first. Follow the format required, if one is given. Otherwise, make it easy-to-read for the Court. In addition, have as few facts as possible in your Separate Statement – not every fact you use in your brief must be in the Separate Statement, only the material facts that you are relying upon.

Tips Regarding Motions for Summary Judgment

1.     Generally, all evidence must be provided to the Court, even if previously submitted in connection with another motion.

2.     Organize your evidence as if for trial – tabs, labels, table of contents, etc. And, follow all the Local Rules and the judge’s local rules, no matter how silly they seem – they matter to your judge!

3.     Do not submit blanket or boilerplate objections – this is a waste of time and resources.

4.     Lodge a proposed order (Check Local Rules).

5.     Lodge a proposed judgment (Check Local Rules).

6.     If the other side files a motion for summary judgment and you agree that the issue is a matter of law, consider a cross-motion and a stipulated set of facts.

7.     Do not attempt to sidestep the page limitation by filing multiple summary judgment motions or using crazy margins and/or font sizes – ask the Court for more pages if you really need them.

8.     Do not assume you will have oral argument.

9.     If you do have oral argument, be prepared, be prepared, be prepared.

10.  Know the deadline for filing your motion for summary judgment, which is different than the last day for it to be heard.

The What, Why and How of the Final Status Conference

Jill Kopeiken, Speaker at Pincus Professional Education on the Final Status Conference

Our speakers are always providing our attendees with helpful tips for their practice, and Jill Kopeikin of GCA Law Partners, is no exception. Jill is one of those speakers who provides fantastic handouts for every topic on which she speaks. Jill recently provided a great tip-sheet, about the Final Status Conference (FSC), at our 11th Annual Superior Court Boot Camp (held October 2016 in San Francisco) and we’re posting her tips here.

There are a few things you need to know and think about when it comes to the Final Status Conference.

  • First, they’re discretionary:
    • There is no California statutory requirement to have a final status conference, merely statutory authorization. See Rule 4.112 Cal. Criminal Rules (“The Court may hold a readiness conference…”, (emphasis added)); see also Rule 3.723 Cal. Rules of Court (“The court on its own motion may order, or a party or parties may request, that an additional case management conference be held at any time…”
  • Given that, what is the purpose? And what are the typical uses? 
    • Judges use the final status conferences (sometimes called an “issues” or “trial readiness” conference) to:
      • Assess the likelihood of settlement
      • Ensure trial readiness
      • Give the parties a chance to raise any issues that may impact the efficient flow of trial
      • Confirm whether a previously reserved jury will be required.  (Judges always try to eliminate a jury trial where possible.)
      • Identify disputed/undisputed facts
      • Discuss exhibits that may be admitted by agreement without laying a foundation, and those that require a foundation
      • Explain the Court’s expectations about readiness and trial schedule
      • Hear and adjudicate pretrial motions. For example, in a “Readiness” conferences held in criminal cases common motions resolved before or at the readiness trial include:  Motions to suppress; Pitchess motions.
    •  Counsel may use the status conference to:
      • Learn more about the Court’s trial practices and preferences.
      • Raise issues that may affect the timing or flow of trial (e.g., explaining that expert witness needing to be called out of order, or identifying preliminary issues to be raised, or notify the Court of a waiver of jury).
      • Seek the adjudication of any pretrial motions that may not have been resolved
      • Discuss equipment needs and handling
      • Discuss exhibit marking, submission and handling at trial, if not already done
      • Try to engage settlement discussions without showing weakness
  • And lastly, what about the timing & procedures?
    • The timing and procedures associated with final pretrial or readiness conferences vary greatly by county, expedited/short or long cause, whether limited or unlimited jurisdiction and criminal versus civil.  So do not assume that what you did in San Francisco Superior will be consistent with what you will do in a new case in Orange County.  It will not.
    • May or may not be standard within a jurisdiction as between judges.
    • Typically held in the last two weeks prior to trial.
    • May or may not be coupled with a court-supervised settlement conference, or these may be held separately.
    • Typically, the exhibits, motions in limine, issues varying trial order or scope, disputes about significant issues that may impact trial scope, order or timing, will be resolved at or before the final pretrial conference.

 

Jill’s law firm, GCA Law Partners, publishes its own blog with some interesting articles. You can find that blog here.

We hope you’ve found this list helpful and we encourage you to email us, or comment below, if you’d like more tips like these or have any questions.

 

Summary Judgment Motions – Tips from the Trenches

Karen

Our speakers are always providing our attendees with helpful tips for their practice, and Karen Kimmey of Farella Braun + Martel is no exception!  When she speaks at our CLE programs, Karen provides great handouts. She provided one on Summary Judgment Motions not too long ago. Here are a few simple tips to improve your briefs:

MOTIONS FOR SUMMARY JUDGMENT 

Practice Tips

  • Think strategically about whether to file for summary judgment regardless of odds of winning. What are you goals?D Do you want to educate your judge? Are you trying to preview your opponent’s evidence? Always remember to consider the cost and effort involved in a Motion for Summary Judgment – it can get very expensive for your client.
  • Spend more time on your Separate Statement of Facts
    • Too often this is an afterthought for counsel – but the judges and their law clerks read these thoroughly. It is the document most relied-upon by many judges and clerks, so be careful with it, and make it easy for the court to find your references and cites.
  • Include only those facts in your Separate Statement that are truly “material”
    • The Court may assume it is material if it is in your Separate Statement
    • Each fact should be discrete and independent
  • Focus on your introduction and headings
    • Explain in a couple sentences what relief you are seeking and why you are entitled to it
    • Use argumentative headings to guide the argument
  • Do not bother with a long recitation of summary judgment standards – they know what it is. Save the space and word count for your argument.
  • Simplify if you are seeking summary judgment and complicate if you are opposing it
  • Start the process early – it takes a lot of time to prepare the papers