Don’t Coach Your Witness During Depositions-Here’s How to Avoid It

Sanctions may be waiting for you if your zealous defense of a deposition of your client or witness rises to the level of witness coaching. There is nothing wrong with a proper objection (I encourage it, when called for, instead of playing iPhone games) but you definitely don’t want to make objections solely to tip off your client/witness to play along. How can you avoid this?

  1. Don’t just say “Object to form” or “objection, form.” State the underlying reason for your form objection. If it’s hearsay, say, “Object to the form, hearsay.” Same with foundation, etc. Continuously objecting with a pattern form objection could be interpreted as merely obstructing the questioner and tipping your witness to answer in a way differently than what she would have done without your interruption.
  2. Don’t object to every other question with “vague” or “ambiguous.” These are specific terms with specific meanings that shouldn’t just be a clue for your witness to ask for clarification or try to narrow down his or her answer to extinction.
  3. Don’t overly prepare your witness. I have several articles on this blog about preparing your witness about what to expect, what to wear, when to shut up, etc. but there is a difference between preparing a witness and practically writing a script that a witness memorizes and can’t deviate from.
  4. Don’t object to every single thing that you can possibly object to. Weigh the importance of the objection. If it matters, go for it. If you are really in doubt, go for it. But if the objection is to something harmless, let it go. Your transcript shouldn’t be littered with your name on every other line.

If we all follow these rules, we ultimately all win. Shorter depos mean cheaper depos. Cooperative depositions lead to future cooperative depositions and misconduct sanctions are avoided.

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A Sad but Funny Memory from Law School

I had a funny recollection today of a conversation I had my third year of law school with one of my professors. We were discussing having children v. having a highly intense legal career. She said, in response to my question about whether you should put off having children, “Oh, that’s easy. One, you can only do for a little while; the other, you can do whenever.” 

I nodded slowly. Finally, I asked: “Just to be clear, which one is which?” 

“The kid is the one that you can only do for a while.” She didn’t even laugh at me. 

Now that I have two kids under three, I can see exactly what she meant. I’m not sure I would have the energy to do it at 40!

A (Short) Guest Essay on the Current Immigration Crises

I asked my friend, Lawrence Orta, to do an interview, but he answered my last question about the current immigration crises so well that I decided to make the title about that instead. You’ll find that at the bottom of this post.  I met Lawrence in law school through Law Review, but really got to know him when we took Immigration Law together.

Biography

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Lawrence Orta was born in San Antonio, Texas. He attended Deerfield Academy, in Massachusetts and then Pomona College, in California. He graduated with a Bachelors in Neuroscience. Lawrence worked for several years as an Environmental Chemist. He then attended the Bowen Law School in Little Rock, Arkansas. After graduation, he worked as a law clerk for Judge Imber at the Arkansas Supreme Court. He then worked for a law firm where he learned immigration and criminal defense. In October 2012, he left the law firm to open his own practice in Texarkana, Arkansas where he now practices primarily in the areas of Immigration Removal Defense and Criminal Defense and is licensed both in Arkansas and Texas.

What made you decide to start your own practice?

It made sense to go off on my own and start my own practice. As an associate at Monterrey & Tellez, I handled the criminal defense cases in De Queen and Texarkana. The 4 hour drives became more and more frequent. It became obvious that there was a demand in this area of the state. Also, the fact that there were no Spanish-speaking attorneys in this area made it an easy business decision.

As an immigration attorney, do you get a lot of experience in the courtroom?

Surprisingly, as an Immigration attorney who practices Removal Defense and who also handles criminal cases, I do get a lot of experience in the court room, The reason is that Immigration and Criminal law are so interrelated in a majority of my cases. When someone who is undocumented (illegal) is arrested and charged with a crime, they are booked into a jail, which then notifies Immigration and Customs Enforcement (ICE) that there is an undocumented inmate. ICE will usually place an Immigration hold. Because I do both Immigration and Criminal Law, I usually have to represent the client in his underlying criminal charge before we can address his immigration hold. Once the defendant is released on bond or his criminal case is completed, ICE will then be able to pick him up. If he is picked up, he will go before an Immigration Judge to determine if he will receive a bond and whether he has a defense to being removed. I will usually represent him in the bond hearing to request a bond reduction (which is necessary in most cases because of the high cash bonds), and then prepare a defense case for him in Removal Proceedings, if he has a defense. With a majority of my clients, I am in the courtroom for their criminal case, and in Immigration Court for their Removal proceedings. So I am in court quite often. Keep in mind that Immigration attorneys also do family-based and employment-based petitions such as applying for Legal Permanent Residence for a spouse or family member. In this type of practice, an Immigration attorney is rarely, if ever, in the courtroom. 

What made you decide to practice immigration law? If a young attorney or law student were interested in practicing immigration law, what would recommend that they do in order to prepare for that career?

I honestly had no interest in immigration law when I started law school. I went into law school to learn Employment law. Also, being a 2nd generation US Citizen, I was far removed from these immigration issues. It was through my extracurricular involvement with the Hispanic Law Students Association and Catholic Charities of Little Rock, that I became interested in Immigration. But the idea of sitting at a desk and filling out an Immigration application for a client did not appeal to me. However, when I started practicing at Monterrey & Tellez, most of the Immigration cases I handled were removal defense cases. They were more interesting to me because they seemed to parallel my work in criminal defense cases, such as preparing for trial and preparing arguments for hearings. I found out that I liked litigating cases and so Immigration Removal Defense seemed a natural addition to my practice. Since opening my own practice, I have had law students contact me asking to come work for me to gain some experience and for some career advice. I usually ask them about their area of interest. If the law student is primarily interested in Immigration law, I recommend that they take the Immigration Law course at Bowen (or that other law school) to get a very general idea of immigration law, but I tell them that they will only be able to grasp how it works by working in an Immigration law office. Also, I ask the law student what community they intend to serve when they begin their practice. Most immigrant communities have a language barrier that keeps them from accessing legal services, so it is important for that law student to speak that language or learn to become proficient in that language. One complaint that I have heard from Immigration clients is that the attorney they previously had did not speak their language, and even with a family member interpreting, the questions and answers got lost in translation. So even having an intermediate level of fluency in that language can help break down those barriers between the client and the attorney. Finally, I recommend that they become a student member of the American Immigration Lawyers Association (AILA) to become knowledgeable on current immigration issues and trends.

You are a young attorney, but by no means a brand new one. I think that makes you the perfect age to offer advice to prospective law students. What are some of the things you wish you either hadn’t done or had done sooner?

As an attorney with a couple of years under my belt, I am happy with where I am at this point, and I feel that what helped me was getting some life experience before hand. Before going to law school, I worked as an Environmental Chemist for several years. This gave me perspective because I was able to see working life from the inside, versus going from college to law school. This has helped me in tempering my expectations as I grow my practice. So I am glad I took a detour in life before starting law school. All the experience has made me a better attorney so there is nothing that I wish I hadn’t done.

As for things I wished I had done sooner?

I wished I had made the decision to open my own practice sooner. I was hesitant to do it because I was concerned about lack of experience, but the reality is that Arkansas has a great network of attorneys who are always willing to offer help or advice, and if you are worried about making the jump until it feels right, it will never happen. Just jump in and start swimming hard, you will stay afloat.

What is your favorite way to keep up with immigration law developments?

The best way I have found to keep up with immigration law developments is through the AILA8. It is a daily newsbrief of the top 8 topics or newsbits for the day. It proves very useful with keeping up with current Immigration Court decisions. You have to be a member of AILA but law student members only pay $50 a year for membership. That is an excellent price considering the wealth of information available to members.

How do you (if you do) manage a work/life balance?

I found that the only way to manage my work/life balance was to become my own boss. As an associate it is hard to control your case load and billable hours. As a boss, I decide which cases I will take. At first, I took all cases, but now I am more selective in what cases I take. This helps control my caseload and allows me the flexibility to pursue volunteer opportunities as well, as there is a great need for pro bono services in this area of the country.

What are your thoughts on the current immigration crises?

Let me find my can opener and open this can of worms. The two crises I focus on these days are: the Humanitarian crisis at the border with thousands of unaccompanied children (UAC) arriving at the border every month from El Salvador and other parts of Central America; and the broken Immigration system that gets it wrong more times than it gets it right. With respect to the humanitarian crisis on the border, I believe that at least one third of these unaccompanied children have parents that are here in the United States. Upon hearing of the policy for unaccompanied children, they paid smugglers (coyotes) to help bring these kids to the border.

As sad as it is seeing all these children coming to the border, I feel that the worst thing we can do for them is reunite them with the same parents who put these kids in such a dangerous situation by paying a smuggler to bring the child to the border. For every 10 kids that made it to the border, there is at least one who did not. That child was either sold into prostitution or abused and murdered. These children should not be reunited with these same parents. If these parents were truly concerned about their child, they would have taken it upon themselves to bring the child to the border despite any risk of immigration consequences for the parent. I understand that El Salvador is dealing with civil unrest and it may be that these kids have a right to apply for asylum once they have made it here because of real dangers they face, but traveling a thousand miles with strangers is not the better alternative.

Right now, the US government recognizes that refugees from El Salvador and Honduras are eligible for Temporary Protected Status because of the civil unrest, which allows them to legally stay in the United States temporarily. There are families from these countries who have a genuine fear of torture or abuse if they stay in their home country, but these families make the trek to the US border with their children to protect them, usually accompanied by the mother, only because they believe that the US government will be more lenient towards mothers and children. I understand their actions and motives. It is the motives of the parents of unaccompanied children that I question, because I believe that they are trying to take advantage of the situation to gain some type of immigration status for themselves. These parents pay smugglers to bring their child, rather than place themselves in the same danger in which they place their children, based on a mistaken belief that their child will be granted some type of legal status, which the parents can then use to apply for legal status for themselves. I do not believe they should benefit from this crisis, much less be allowed to maintain custody of these children. If people are not happy about the fact that these unaccompanied children are allowed to stay here, then they should call up their congressperson and tell them to pass Immigration

Reform and help solve our second immigration issue, the broken immigration system. Like it or not, immigrants will keep coming to our country and building more detention centers or bigger fences will not solve the problem. People forget that the weakest link in these barriers is the people hired to protect our border. They can be bribed by cartels and coyotes to assist in getting people into the country. And the bribes are not thousands of dollars, but rather hundreds of dollars as in the case of a train engineer who assisted coyotes in smuggling in immigrants for a couple of hundred dollars a group. No one suspects someone who makes an extra $300 a week.

These people will always stay under the radar of federal agents. In addition to comprehensive immigration reform, we also need real foreign policies that help with economic reforms in these Latin American countries. Until we help to improve the economic conditions of these countries, gangs and cartels will control these countries and people will keep fleeing to the United States.

Ultimately, it is a lot cheaper to help people in these developing countries achieve economic prosperity than to wait until they reach our border and spend many times more money to house and feed them in our country.

 

Interview with DHS Deputy Director Keesa Smith

KEESA SMITH

Arkansas lawyer Keesa Smith will become the deputy director of the Arkansas Department of Health and Human Services next month. Ms. Smith was kind enough to take the time to answer some questions from Hawg Law Blawg. 

HLB: Where are you from? 

KS: I grew up in a small town named Havelock, North Carolina. I am a military child (my father is a retired Marine) and I was born in Portsmouth, Virginia. From there, my parents moved to California and Okinawa, Japan (where I started school). We moved to North Carolina when I was in the third grade and that is where I grew up. 

HLB: Where did you go high school, undergrad and law school? 

 

KS: I went to high school at Havelock High School. Undergrad: University of North Carolina at Chapel Hill. Law School: University of Arkansas at Little Rock (both of my parents are from North Little Rock and they moved here when my father retired so I decided to follow them when I graduated- smile)

 

HLB: What was your major in undergrad?  

 

KS: Journalism and Mass Communication with a concentration in Public Relations.

 

HLB: What were your best (or favorite) subjects in law school? 

 

KS: I actually received Top Paper in Evidence so that automatically made it my favorite class for all three years!! I loved all of my classes pertaining to Criminal Procedure although I never practiced that area of law. I also enjoyed Law Skills II as it allowed you to actually try a case. 

 

HLB: What did you do after graduating law school? 

 

KS: After law school I actually attempted to practice on my own for a few months. I did not enjoy the business aspect of being a solo practitioner, so I was always actively applying for work throughout that time. Several months after I graduated, I got a wonderful job as a Staff Attorney for the Center for Arkansas Legal Services. 

 

HLB: For each place that you worked, was having a law degree important for that job?  

 

KS: I believe that my law degree was important for each job I have had. Clearly it was required for my staff attorney position at CALS. When I left to work for the Governor, I actually started in his office as a speech/talking point writer. My law degree was important because various opportunities arose where I was able to apply my legal knowledge. The more I did so, more opportunities occurred for me and I ultimately ended up having the opportunity to join the Governor’s Legislative Team and analyze bills based on their legality and impact. Once that session was completed, I was able to step into the role Deputy Legal Counsel and was given the opportunity to assist in the American Recovery and Reinvestment Act (stimulus) implementation. My current position as the Chairman of the Arkansas Board of Review statutorily requires that I be an attorney and I am very confident that my law degree will be benefit me when I take on the role of Deputy Director at DHS.  

 

HLB: How did you come to be appointed deputy director of DHS?  

 

KS: I was contacted by John Selig. He and I, along with Deputy Director Janie Huddleston and many DHS division directors, worked together to implement stimulus programs during my tenure at the Governor’s Office. I was brought in for an interview and, thankfully, I was the candidate that was chosen for the position. 

 

HLB: What are your goals for DHS during your directorship?  

 

KS: My primary goal is to ensure that the divisions I work with are running properly and efficiently, while keeping the people that we serve as our first priority. 

 

HLB: Is this the career path you expected to follow? 

 

KS: No- when I was in high school, I wanted to work in the medical field. When I was in law school, I wanted to do criminal law. However, I am extremely grateful for the path my career has taken as it has allowed me to help people every, single day and I have a great sense of satisfaction at the end of the day. 

 

HLB: What do you do outside of work? 

 

KS: My family is extremely important to me. I have a daughter named Afiya who keeps me very busy with her school schedule (she recently started 7th grade) and extracurricular (soccer season just started as well). Also, I moved to Arkansas to be close to my parents so I enjoy spending time with them as well. I am active in my church (St. Luke Baptist Church in North Little Rock) and my sorority chapter (Beta Pi Omega chapter of Alpha Kappa Alpha Sorority, Inc.) 

 

HLB: What advice would you give to a law student or someone just starting their practice? 

KS: My number one piece of advice is to get connected with individuals who are currently doing the things that you would like to see for yourself in the future. Since I was not from Arkansas and did not have much connection to the legal communities, I definitely attached myself to individuals that I felt were excelling in their career field. I would invite them out to lunch or ask if I could come by when I was in law school and continued to do the same thing when I graduated. These individuals have been invaluable to me. As I continue with my career, I pick up more mentors!

 

Best of luck to Keesa Smith in her new position! 

 

Interview with Immigration Attorney George Ernst

Biography

Today’s interview features George Ernst of the Mitchell Williams firm. I met George through a linkedin group when I was working on a case with immigration issues.

George has a B.A. from the University of Kansas, a J.D. from the University of Pittsburgh School of Law,  and an LL.M. from Humboldt Universität zu Berlin. He is admitted to practice in Pennsylvania and in Arkansas. He is fluent in German.

Before joining Mitchell Williams, George Ernst was the managing partner at Ernst & Riley Law Group, LLC in Pittsburgh, Pennsylvania. During this time he represented foreign-nationals from both Asia and Europe.

Over the past few years, George Ernst has counseled foreign-nationals and U.S. based businesses on various aspects of U.S. immigration law. Mr. Ernst primarily focuses on business based immigration, including H-1B Temporary Work Visas, E-2 Treaty Investor Visas, National Interest Waivers, Employment Green Cards and EB-5 Investment Green Cards.

Interview

I understand that as a brand new attorney, you started a law practice with your friend because you didn’t want to wait around for the right opportunity to come to you. What important lessons did that experience teach you?

The most important lesson I learned was how important it is to reach out to the community and meet the needs of individuals in the community. Law school doesn’t really prepare you when it comes to finding and retaining clients. We had to figure that out as we went along. However, I really feel that it made us really appreciate who your client is, and ensure that you are meeting their needs. We really made every effort we could to ensure that our clients were satisfied with our work. The other lesson we learned was how to be resourceful and come up with effective strategies for cases that many other attorneys would turn down. A few of our first successful cases came from clients with issues that other more established firms thought were too difficult. We dove into these cases head first and found ways to make them successful. It really taught us how to be creative and make the law work for the client.

 As an immigration attorney, you don’t usually get a lot of experience in the courtroom, but you’ve been teaming up with some attorneys at your firm to make sure you get that experience. What has been the best part of that? Do you recommend that other transactional lawyers do the same thing? If so, why is it important? 

I firmly believe that it is important for young attorneys to take advantage of every opportunity you can to learn other aspects of practicing law. I believe that this allows one to become a well-rounded attorney. Often working in another area of law will give you greater insight into your primary practice.

What made you decide to practice immigration law? If a young attorney or law student were interested in practicing immigration law, what would recommend that they do in order to prepare for that career?

As I had spent a significant amount of time living abroad, and as I had earned an international LL.M. degree in Berlin after law school, I knew that I wanted to use my legal skills in an area that had an international component. After going through the German immigration process myself (to receive my German student visa), I realized just how difficult it can be to go through the immigration process. I guess that was where some of my interest really started. I knew that I wanted to work with foreign nationals, so immigration law seemed like a perfect fit. I would recommend that any young attorney, or law student interested in practicing immigration law, join AILA (American Immigration Lawyers Association). This has been the greatest resource when learning the intricacies of U.S. immigration law.

I understand that you focus on business immigration work. What is it about working with businesses that appeals to you?

I really enjoy helping businesses hire and retain their workers. There is often a very strong employer-employee bond, and after a business has worked with an individual for several years, they really want to do everything they can to keep that worker. It gives me a great sense of satisfaction when we receive our approvals from USCIS after all the effort that goes into each and every petition.

I also really believe that it is important for the United States to foster an entrepreneurial spirit. One of my favorite visa categories is the E-2 Treaty Investor Visa. This visa allows many foreign nationals to come to the United States to start new businesses. I really enjoy working with foreign nationals, learning about their passions and areas of expertise, and working with them to receive proper immigration status so that they may continue building their business.  Countless studies have demonstrated that foreign nationals are a net benefit for the community, and it is clear that when you allow foreign nationals to start new businesses, the economy and community in general reaps the reward.

What are the up-and-coming areas of immigration law that will affect Arkansas?

Currently, Congress is working a comprehensive immigration reform bill that will, hopefully, make many positive changes to immigration law. Providing status to current undocumented workers, expanding the number of available employment based green cards, strengthening the EB-5 investment program, creating a new class of entrepreneurial visas and expanding temporary worker programs will all have a positive impact on Arkansas.

As a transplant to Arkansas, what is your impression of being an attorney here versus “the North.” Good things? Things Arkansas attorneys can work on?

I really enjoy being an Attorney in Little Rock. I have found all of the attorney’s really friendly and helpful.

You are a young attorney, but by no means a brand new one. I think that makes you the perfect age to offer advice to new attorneys and law students. What are some of the things you wish you either hadn’t done or had done sooner?

This is a tough question. I really think everyone’s experience starting out is unique  and different. The only thing I would really recommend is that young attorneys need to become comfortable dealing directly with the client as soon as possible.

I understand your wife is a philosophy professor at UCA and she focuses on gender issues.  Do you have any thoughts on how we work as a profession to increase awareness of our hidden gender biases?

I think the profession has done a pretty good job of increasing awareness of gender issues. And I think that overtime, as more women rise to higher positions in Arkansas firms, gender equality will improve.

What is your favorite way to keep up with immigration law developments?

Because of the current pending legislation it is really easy to keep up immigration law developments. Every morning I go to aila.org to read about the latest developments

How do you (if you do) manage a work/life balance?

I try to make sure that I make time in the evenings to relax and not worry about clients and cases. I think it’s important to let your mind relax and focus on other things.

What do you do for fun?

My wife and I recently bought a house, so we spend most of our time working on improving our yard. My main hobbies include photography, and playing the guitar.

Interview with Tax Attorney Craig S. Lair

craiglair

Today’s post is an interview with Craig Lair, a tax and estates attorney at the Rose Law Firm. I first met Craig back in 2007, the summer before I started law school, when I was a Summer Assistant at the firm. I worked with him again in 2009 when I was a Summer Associate there. Craig stands out amongst the attorneys I’ve worked for, because he goes out of his way to be helpful and friendly, despite his busy schedule. This blawg is heavily weighted towards litigation, so Craig seemed like the perfect person to help give some perspective on the mysterious world of transactional law.

Craig is a 2012 Super Lawyer, a 2012 Lawyer of the Year, and a 2013 “Best Lawyer in America.” He was a Staff Editor of the Duke Environmental Law and Policy Forum, a First Place finisher in the National Wechsler First Amendment Moot Court Competition, and recipient of the Fisher, Tousey, Leas, and Ball Outstanding Estate Planning Award at Duke University.

JenniferAre you from Arkansas? 

Craig: Yes, I’m from a place near Harrison.

JenniferWhere did you go to college?

Craig: I went to Harding University and got a Bachelor’s of Business Administration. I went to law school at Duke University and graduated in 1995. I got a Master’s degree in Economics the same year.

JenniferAre you married? 

Craig: Yes, I have been married for twenty years. I have two children, a son, 15 and a daughter,9.

JenniferWhat did you do after you graduated?

Craig: I went to work for Rose Law Firm. Other than one year spent in-house for a client, I have worked there since I graduated.

JenniferWhat made you decide that you wanted to go to law school? 

Craig: I interned for Representative John Paul Hammerschmidt and worked with a few environmental lawyers on the Clean Water Act. I also worked with a lot of lawyers who were lawyers /lobbyists. Watching them work was interesting. I went to law school thinking I was going to be a Clean Water Act lawyer.

JenniferWhat does a typical day look like for you?

Craig: I usually work on 6-10 matters per day, so there are lots of diverse issues. It could be anything from disputes to planning estates, to any assortment of business questions. I represent a lot of smaller businesses and privately held businesses and consult on various  issues like transferring the business, selling businesses, getting money to start a new business, and employment or contract issues.

Jennifer:  My blawg is primarily designed for new attorneys or even those still in law school. Would you recommend your job to someone else? 

Craig: Yes. I think there is a decline in demand right now, but I see it picking up in the future.

JenniferI see that you are admitted to the U.S. Tax Court. Do you primarily practice there or in state court? 

Craig: It’s a bad day for me if I am in either one. I try to stay out of both of them. Lately, I’ve had a lot of probate work though, so more state court. Some years it is different. The Tax Court meets in Little Rock one week a year, but I may travel to other places that it is being held, like D.C., just depending on the client.

JenniferIt sounds like you hit other areas of the law, like labor and finance?

Craig: Yes, although if the issues gets too specific or complicated, we will associate with specialty counsel. For instance, if there is an employment layoff issue with potential for litigation, we will pull in a labor lawyer. You never know what kind of issues are going to come up though. I recently had a Constitutional law issue in a case. I haven’t had to look at one of those since law school.

JenniferWhat other advice can you give to people just starting out? 

Craig: If you want to be a tax attorney, you should get an LLM. But only get an LLM if you know where you are going to be working and they are helping finance or pay for it.  For tax, I think either NYU or Florida is best. If you haven’t already been placed for employment, getting an LLMmay not be worth it.

I don’t think there is any particular personality you need to be a tax attorney. There are quiet tax attorneys and others that are less quiet.

JenniferHow do you make sure you spend enough time with your family, work out, and maintain your practice?

Craig: Get up early! I woke up at 5:30 am this morning so I could swim. I try and do that a couple times per week. The rest of the week I work out after work. I run or cycle. I spend time with my kids from about 7-10 pm every night.

JenniferHow does one become a morning person? 

Craig: I’m not one. You just set the alarm and get up. Eventually, it becomes easier.

JenniferBesides exercise, what do you do?

Craig: I’m on the Board of Advisors for the Arkansas Symphony Orchestra.  We are trying to get more young people involved in coming to the Symphony, so you should come out.

I Never Want to C You Again: An Interview with Professor Silverstein

silverstein

Joshua Silverstein, Professor at UALR Bowen School of Law

Today’s interview features a professor from my Alma mater, but not a former professor of mine. I wish that I could have taken a class with him, but it just didn’t work out. Despite not taking any classes with him, I got lots of interaction with Professor Silverstein, as he always seems to be everywhere at once.

Professor Silverstein has been in the media a lot this week, so it seemed like a good time to talk to him about his recent article.

BIO

Professor Silverstein is an NYU law school grad with undergrad degrees in Philosophy and Political Science. He has a brother who is also a professor (of philosophy) at the Abu Dhabi campus of the NYU law school. Professor Silverstein graduated magna cum laude from the New York University School of Law and was named to the Order of the Coif. He also served as the Legal Theory Editor for the New York University Review of Law and Social Change while a student. After graduation, he served as a law clerk to the Honorable Suzanne B. Conlon, United States District Judge for the Northern District of Illinois. Professor Silverstein then became a litigation associate at the law firm of Mayer Brown in Chicago. There, he worked on a wide variety of matters, including products liability, bankruptcy, and accounting malpractice cases. Professor Silverstein subsequently joined the Chicago law firm of Freeborn & Peters, where he practiced in the area of commercial litigation, focusing on antitrust disputes and business torts. You can find more information on the Bowen website, found here.

Professor Silverstein says research is his true passion. He loves teaching students, but if he was only allowed to teach without doing research he would go back to private practice. But too much research can be a bad thing. He was unhappy that his position at Mayer Brown only allowed him to research without giving him opportunities to develop other skills. His switch to Freeborn & Peters allowed him to do commercial work and antitrust cases, but a smaller firm meant more opportunities to be more active in cases. He recommends working in firms with 50-100 attorneys for those reasons.

The Press

Above the Law strikes again. This time, that dazzling wit, Elie Mystal, wrote a post about a law review article by  Josh Silverstein. Per his usual practice, Mr. Mystal misinterpreted Professor Silverstein’s article. This was likely due to the fact that he did not actually read the article. Mystal gets paid to write articles for Above the Law. I do not get paid, but I actually read the article. That doesn’t seem fair…(p.s. no one has yet sent me chocolates, per my earlier request).

A prior article was written about the topic in the Wall Street Journal Law Blog, “Law Prof: Let’s Scrap the ‘Gentleman’s C.'”

JW: You got quite a lot of attention from Above the Law. There were 114 comments the last time I looked. 

JS: Well, about twenty of them were mine. I responded to every comment I deemed worth responding to.

JW: You did respond to more than most people would take the time to do. I liked that you clearly explained your points to the people who had trouble grasping the article’s concept, but a lot of the comments seem to be the same criticisms over and over again.

JS: The most common criticism I’ve seen is that people wish I had written a different article.

JW: It seems like they wanted you to write about the job market. 

JS: Right. There are enough people already writing about that. It’s an important topic, but it’s not my topic. No one is addressing the grading issue. My article is about how to allocate the jobs that are available fairly. I explicitly disavow any claim in my article that raising grades will increase the sum total of law graduates who will get jobs. It will have no such impact. What it will do is make whatever jobs are available more fairly distributed. Those who want to deal with other issues more generally, I pointed out that they can find my views on that at the ABA task force website, where I’ve written over four pages of comments on other topics.

JW: Another argument I saw made a few times was that it doesn’t matter what your grades are or how schools grade; it all comes down to 1) who you know and 2) what you look like. What’s your response to that? 

JS: I believe there is no question that who you know is relevant. Connections are important. There is also research showing that physical appearance matters. But, there is more than enough evidence that grades matter. If I didn’t think that grades matter, I wouldn’t have written an 85 page article in our law review and an 83 page article in the San Francisco Law Review.

JW: I have to agree with you, considering that many interviews for clerkships only allow people with certain GPAs to interview. So it doesn’t matter who you know or what you look like, if you can’t even get an interview. 

JS: There is a quote from some article that I cited that says something like, “We can debate the level of weight that grades have, but there is no question that they have weight.”

The Article

The article, titled “A Case for Grade Inflation in Legal Education,” argues that law schools should eliminate “C” grades by raising its “good academic standard” level to a B-. This is for two reasons:

1) Low grades damage students’ chances of getting jobs. If “C” is “good” at your school, but “B-” is “good” at a competing school, the students at the “C” school are going to look worse, despite the fact that their performance was the same.

After there was media attention focused towards law schools that raised students’ grades, the New York Times and several other papers covered the topic. Silverstein argues that these schools were right to do so and the remaining institutions should do the same.  Silverstein cites work by a professor of computer science at Furman University who compiles grade distributions:

For master’s programs, the grades break down:

75% A’s

22% B’s

3% C’s

>1% D’s & F’s combined

That’s definitely not something you would find at most law schools. My first semester of Civil Procedure saw 2 A’s for the entire class of about 70 students.

Silverstein notes that most graduate schools require students to earn at least a 3.0 gpa to remain in good academic standing (requiring B marks or better). Some schools are so harsh as to consider a C a failing grade for a class, even if the student’s average gpa is a 3.0 or better. Ouch.  Law schools tend to require a 2.0 gpa to be in good academic standing.

Most medical schools now use a type of Pass/Fail grading system, doing away with not only C’s, but also its long-time companions: A, B, D & F.

Here is the real problem: law schools grade differently, making gpas a difficult benchmark. One study found that the more prestigious schools tend to award higher grades (i.e., the higher the index score of incoming students, the more inflated the grades). In contrast, Whittier Law School (Fourth Tier) mandates that at least 75% of grades must be in the C range or below for first year doctrinal students. I haz a sad for you, Whittier students.

UALR’s Bowen School of Law adopted a grade normalization policy in 2011. Silverstein supports normalization policies, discussed more below.

Professor Silverstein further advocates for a good-standing level of B-, meaning :

2.7 at schools that use a four-point system &

82 for schools that use a 100 point system.

To be clear, he does not mean that students should not get credit for C-equivalent grades; only that it should not be considered good academic performance (similar to a D now). This goes beyond normalizing grades,

“Grade normalization is concerned with equalizing and standardizing the pot of grade wealth that each teacher allocates to his or her students at a particular school. Grade inflation and deflation are concerned with the size of the pot of grade wealth the instructors are given.”

Ultimately, the idea is to make competing in the job market more fair.

2) Marks in the “C” range injure students psychologically. 

As we know, law school is ridiculously stressful. Law students have high levels of depression and general psychological distress. If you don’t know what I’m talking about, go rent The Paper Chase. In support of the proposition that grades are amongst the largest stresses of law students, Silverstein cites another law review article, which cites another law article. I can’t really tell what kind of evidence these articles came up with, so it is hard for me to give this argument a lot of weight.

Obviously, grades are important. They can shape job prospects, careers, academic honors, scholarship eligibility, whether or not your parents are proud of you (that one is my addition, j/k Mom!)…the list goes on. Silverstein notes that he and other faculty have had many students come for counseling about whether or not it was a good idea to stay in law school, given their C-type marks, which, according to the school, were a sign of good academic performance.

My former Dean of Students, Andy Taylor, expressed that he finds B’s to be a wake up call, but C’s to be detrimental. That’s because C’s can discourage students from striving for higher grades, where a B makes students want to work for a higher grade (“a B is a hit, but a C is truly discouraging”).

Another problem is that law students tend to come to law school with nothing but A’s and B’s in their academic records. Some have never even seen a B. For those students, a C can be particularly traumatizing. According to Silverstein, “C-type grades virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention.”

Silverstein also advocates adding more scaling in the range between 2.7 and 4.0, which could be translated to a number grade.

The counter-points identified in the article are threefold:

1) Students shouldn’t get B grades for C level work;

2) Substantially Eliminating C grades causes problematic grade suppression;

3) Students will to work as hard if we substantially eliminate C grades (this is the only argument that Silverstein thinks has any merit).

My Pre-Interview Thoughts

I completely see the reasoning behind the first point and to the extent that it can be corrected, more power to him. We all know the job market is a tough place to be right now. Schools that inflate their grades get an advantage if an employer is looking at GPA as a factor for hiring (which we know they do). But, grade inflation in law schools is a controversial topic.

I’m a little skeptical of the second point. If you’ve been to law school, you know that getting a C is depressing. I’m no stranger to C’s. I’ve made them before. But, I never made a C after studying day and night before law school. It was crushing, I’ll admit; however, I wasn’t alone. Everyone in my study group made at least one. We all graduated. I finished with honors and I am gainfully employed (Sallie Mae thanks me for that). Overall, it wasn’t something that made me want to pack my bags and high-tail it out of law school.

Here’s my trouble with it: getting a C is only the tip of the ice burg when it comes to how law school can psychologically injure students. Also, if the problem is that students are defining themselves by their grades, that won’t change. If you get an “elephant” for a grade and all the “smart” people get “wombats” and “sea otters,” you know where you fit on the scale. Your class rank will be lumped in with the other elephants. In other words, the competitive feelings associated with relative performance don’t change at all.

The Rest of the Interview

JW: I remember the first C and it hurt, but it wasn’t as big of a stress as a lot of these researchers you cite seem to think it is. I realize that’s anecdotal though. 

JS: For  a lot of people I’m sure it’s not. Unfortunately, almost all of the evidence is anecdotal. There were only two scientific studies that were published that were useful and neither one of them controlled for class rank. I couldn’t even get data on how many C’s our UALR students get in undergrad because the school would not give me the documents. The general data does show that law school students get a lot more Cs in law school than they do in undergrad. I know people who got Cs and dropped out. I know people who got Cs and persuaded them not to drop out and they are now partners in law firms. That’s not the reaction we want students to have. After decades of trying to explain to students that Cs are not bad grades, we know it just doesn’t work. Grade inflation is the way to deal with that.

JW: What about doing more explaining of grades during orientation. Why not show graphs of what grades look like in other graduate programs compared to law school? 

JS: It’s worth doing. Emily Zimmerman, who I cited, said that schools should be doing just that. It is something that I do in all my classes. It does not help very much. It might be a little more effective now that I know more about what to say.

One point that I make over and over again in my article is the fact that almost every other graduate program uses a 3.0 as a baseline for good standing. If it works there it can work here.

JW: It can be hard to hear your other friends in graduate schools talking about their 4.0’s. No one my class graduated with 4.0. 

JS: I don’t think we’ve ever had anyone graduate with a 4.0. Ever. I think we had one student who got all A’s and one B+ since the 1980’s.

JW: I like what you said about controlling for class rank though. Part of the reason that I might not have felt so stressed about getting a C could be that my gpa was still OK overall. 

JS: I do a huge summary of two studies. Great scholarship, but they did not control for class rank. Another professor, Grant Morris, says relative success is what students care about. So until we actually control for class rank, we won’t know for sure.

One of the things that we did at UALR was normalize grades. Before grade normalization, the average gpa was 3.06. After grade normalization, the average gpa was still 3.06. But, we inflated the letter values, even though we didn’t inflate the average gpa. The way we did that is that a “B” used to be worth 3.25 and now it is worth 3.0, etc. So we inflated the letter grades without inflating gpa.

That was the first semester that students didn’t come by to ask if they should drop out. Same gpa’s, but higher letter grades made students feel better about their abilities.

JW: I am less convinced about the psychological part. 

JS: So am I.

JW: But, the first argument I find more convincing. Leveling the playing field could be a huge benefit. How well do you think it would work? 

JS: I don’t know exactly how much it would matter, but I think it would matter enough to make it worth doing. Especially since the downsides are so minimal. The only really good argument against it is that it might encourage some people not to work as hard. It’s ultimately not that persuasive to me though.

What kind of surprised me was how many people believe that grades have such a deeply objective meaning. That they are an inherent objective measure of performance. That means that grades must have some important significant to some employers.

JW: Why use number grades? Won’t it take professors more time?

JS: You have to take more time to classify people, but you don’t spend extra time agonizing over people who are right on that line between B and B+.

Most people who want grade normalization don’t want grade equalization and vice versa, so I think that I take people off guard. I want equalization across schools and within schools.

Pregaming Your Client’s Depo, Parts 1 & 2: Interview with my mom and free templates

Prepping your client for their deposition=probably the most important part.

The most discouraging thing about it  is when you spend hours or even a whole day preparing your client for their deposition, cover everything important, and then they do all of the things they aren’t supposed to anyway! Gah!!! I think as attorneys, we forget how nervous people get in that kind of situation, because we have become immune to it. I mean, seriously, what is the big deal? Why is it so hard to follow simple instructions, for crying out loud? In order to find out, I interviewed my mom.

My mom was in a bad car wreck when I was a 2L. She was represented by a family friend, who is a very competent plaintiff’s attorney. Her deposition was taken by State Farm ahead of trial. Here is our facebook chat about what made her nervous and what would have helped:

MeWere you nervous before your deposition?
Mom: Yes, very.
Me: What made you nervous?
Mom: Never having done it, so the unknown; worried about not giving the correct answer or even if it was true, I was worried my words would get twisted.
And the thought of the court reporter made me nervous for some reason
And just the stiffness/officiousness.
Me: The court reporter is usually the nicest person in the room. Why did that make you nervous?
Mom: I’m not sure , she was very pleasant, but I think trying to remember to speak my answers and not just nod or use my hands.
Also, I think trying to answer truthfully with out giving him too much Information.
Me: So, there were just a lot of things to remember at once?
Mom: Yes, and I was in a great deal if pain with it.
It is a very unfamiliar situation and kind of like when the police want to ask you questions.
Even if you are innocent you are still a nervous wreck.
Me. I know [your attorney] showed you a video and talked to you about it ahead of time. He probably told you all the same things I tell my clients.  What else could have been done to make you feel better about it?
Mom: Dress nicely but be comfortable, having a drink or light snack ahead of time.
Giving everyone a minute to acclimate , get comfortable.
Being able to have your dad there would have helped. Not sure if he could have been there?
Me: No, he couldn’t be in there with you. 
Mom: Ok, it would be a help if you could have someone like that, but since you can’t I guess that won’t help. And not having the other lawyer act like you are lying with looks or just the way he reacts. I kept feeling like he thought I was lying when I wasn’t. It is just such am intense situation , very nerve racking.

Me: So the other attorney was trying to put you on the defensive by acting like he didn’t believe you? 

Mom: I felt like he was, especially when he asked questions I couldn’t remember. I don’t know answers a dozen times starts to make you look like you’re lying, as he jots constantly and” uh-huhing” and “I seeing.” I think you can explain it all you want, but until someone does it, they will be nervous.

That’s most of our conversation. I did not include my mom’s other suggestions which rapidly devolved into the ridiculous, including:  being allowed to crochet while answering, having a “bowl of pretzels and a Coke handy,” and requiring opposing counsel to wear an Andy Griffith mask.

But, there were some pretty fair criticisms of why people are wary of attorneys. Plus, it is strange to do something you do every day–talk–but not be allowed to do it in a normal way. I think Mom is right: you have to do it to really get it.

Which brings me to my pregame process, in all its detailed glory. 

I like to send a pre-deposition letter, after I have scheduled a pre-deposition meeting. The letter includes a guideline pamphlet. This gives my client a chance to read about a deposition ahead of time, digest the intellectual part of it, and think about questions. Then, I do practice deposition questions with another attorney at my firm defending the pretend depo.

Part 1: The Letter  Ahead of the Meeting

Here is my enclosure letter, sent after our meeting is planned. Feel free to copy it and make it yours for free; however, I would not turn down something to barter in exchange, say…decent wine or a box of truffles. It’s only fair.

Dear Client,

As you know, your deposition is coming up soon. [It will likely be scheduled during the week of__] or [It has been scheduled for ____________, at _____________ for____________(time)].

[We have already planned to meet together on _____(date), at _____(location), for ___(time),  in order to go over the process of your deposition. You should plan to be there for about [2] hours] or [Please call or email me as soon as you can to set up a meeting].

During our meeting, I’m likely going to practice some questions and answers with you. I may even ask another attorney from my firm to practice with you too. The purpose of practicing questions is not to get coached on what to say (I always want you to tell the truth to your best ability); the point of practicing is to help you feel confident about how you are telling it.

Before our meeting, I would like for you to read the enclosed deposition guideline. While you read it, please make notes of any questions that you have for me. I’ll answer them at our meeting.

Your deposition is a very important part of this case and I appreciate you taking the time to do the best job that you can on it.

Best regards,

Awesomesauce Attorney

Part 2: Deposition Guidelines (sent with letter)

Please feel free to take these guidelines and make them yours. This is also free, but I’ll let your conscience be your guide about whether or not you should send the truffles I requested. If you have suggestions to make it better or you already use one of your own, please send it and I’ll publish them!

Deposition Guidelines

What is a deposition?

A deposition is a question and answer session, usually between the opposing party’s attorney and a witness, expert, or adverse party. The attorney asking the questions is called the “examining attorney.” The “deponent” is the person whose deposition is being taken. If you are reading this, that probably means you are the deponent!

Every word spoken at the deposition is typed up by a court reporter, who will give all of the parties a book of the questions and answers later. I will show you an example of this book when we meet together. Many times, depositions are also videotaped.

Before you begin answering questions, the court reporter will have you swear to be truthful, just like you would do in court. The testimony you give is “sworn testimony,” meaning that if you deliberately lie during your deposition, you could be in legal trouble later. It also means that your testimony is public record (unless I tell you it isn’t) and that it can be used in court, either for or against you.

Why is my deposition so important? 

Depositions are one of the main ways attorneys learn about the facts of the case.  No matter how much research we do, there are always going to be things we don’t know until we ask the people involved. For this reason, the goal of the examining attorney is to get the deponent to talk as much as possible. At our meeting, we are going to discuss preventing that.

Deposition testimony can be used against the deponent in court. Other things people say can be used against them too, but deposition testimony is more compelling than using words said in an email or conversation, because the deponent swore to tell the truth. If a judge or jury finds out that the deponent lied during a sworn statement, they have no reason to think that he will take his oath to tell the truth in court seriously.

Depositions are a way of telling whether or not the deponent will make a good witness in court. Whether, and how, a case settles often depends on whether a deponent would make a good witness at trial. Even if someone tells the truth, if they do not make a good impression, the opposing attorney will use that to his/her advantage to push for a bad settlement.

What should I wear? 

For the reasons I’ve already mentioned, it’s important that your appearance creates a good impression. For that reason, please be as personally clean and as respectably dressed as possible.

I have offered some very specific suggestions below. Please don’t be offended by this if you do not need my help; however, I have had many clients worry a lot about this issue or misunderstand me, so I have started offering detailed instructions to help those clients be more comfortable.

Expense

I understand that not everyone can afford to get an expensive suit or their nails professionally done. That is not required, even if you can afford it. All that I require is that you to make the best effort that you can. Incidentally, if your case goes to trial, these are the same guidelines.

Creating a good impression does not have to cost a lot of money. For instance: holes in clothing can, and should, be mended; shoes can be cleaned and polished at home; nails can be trimmed and cleaned at home; hair can be washed and neatly styled without paying anyone. These simple steps will go a long way.

Men 

  • Hair should be washed and trimmed, or pulled back neatly if long enough. This is not the time to try out a mohawk or shaving your head for the first time.
  • Hands and nails should be cleaned. Nails should be trimmed.
  • Facial hair should be appropriately groomed.
  • Clothing should be clean, smell fresh, be pressed, and comfortable. If you have never worn a three-piece suit in your life, this is probably not the time to try it out. The best description of what to wear is “business casual.”
  • Shoes should be cleaned & polished (if applicable) and comfortable. Your deposition could take a long time and wearing tight shoes would make it a very painful experience.
  • Piercings & tattoos: if you have a large number of piercings and some of them can be removed without causing harm or leaving a gaping hole, please do the best you can. Tattoos should be covered by clothing, if possible.

Women

  • Hair should be cleaned and neatly styled.
  • Hands and nails should be cleaned. If you wear nail polish, make sure it isn’t chipped. If you wear your nails short, make sure they are trimmed and clean. Longer nails should look nice.
  • If you wear make up, please be conservative.
  • Shoes should be cleaned & polished (if applicable) and comfortable. Your deposition could take a long time and wearing tight shoes would make it a very painful experience.
  • Clothing should be clean, smell fresh, be pressed, and comfortable. If you have never worn Spanx in your life, this is probably not the time to try it out. The best description of what to wear is “business casual.”
  • Piercings & tattoos: if you have a large number of piercings and some of them can be removed without causing harm or leaving a gaping hole, please do the best you can. Tattoos should be covered by clothing, if possible.

Comfort.

You should bring a sweater or light jacket. We never know if the room will be freezing or really hot, so plan accordingly.

Please also be sure to eat something before your deposition. If you have low blood sugar issues, please bring a snack with you.

If you take medications, be sure to bring them with you if you need them.

Steps to answering a deposition question.

1. Tell the truth. 

Please do not lie, even if you think it will help your case or someone else’s. It never turns out well, so just don’t do it. But, that does not mean that you have to volunteer information if it was not asked. You have every right to make the attorney ask you the right questions. It is not your job to sort everything out for them.

2. Listen carefully to the question.

3. Pause. Why?

a. Makes sure the attorney is finished asking the question.

b. Gives me time to make an objection if one is needed. If I object to the form of the question, wait until I finish the objection, and then indicate you that you may answer. If I object based on a privilege, I will instruct you not to answer the question.

c. Allows you to think about the question that was actually asked.

d. Makes it easier for the court reporter to create a clean record.

4. Answer the question asked. See the next section for acceptable answers.

5. Stop Talking!!! Don’t offer explanations or volunteer information beyond the question actually asked. If the attorney wants an explanation, she will ask for it.

Acceptable answers to most questions:

1. Yes-if the answer is definitely yes.

2. No-if the answer is definitely no.

3. I don’t know (if you are not sure, can’t remember, never knew and/or don’t know now).  Never guess if you don’t know. You aren’t being deposed for information you can guess. You are being deposed for what you know.

5. I don’t understand. If you didn’t hear it, ask the attorney to repeat it. If you didn’t understand a word they used, or the way the question was phrased, ask them to rephrase the question or tell them which word you don’t know. Attorneys are people and sometimes we ask bad questions. Everyone will appreciate you pointing it out, because that will help create a cleaner record.

6. May I take a break? If you need one, ask for one. This isn’t an endurance test, if you need a break take one, but if a question is unanswered, you will need to answer it before the break begins.

7. Correct/Clarify earlier mistakes when you realize you made one. It’s ok if you messed up an earlier answer. As soon as you realize you misspoke, let the attorney know that you need to correct your answer.

Why I will be quiet for most of you deposition. 

A real deposition is not like the ones you see on TV. Many deponents are worried that their attorneys are so quiet during their deposition.

I am only allowed, by law, to make limited types of objections. Objecting when I am not supposed to can get us both into trouble. Additionally, it ends up taking much longer and does not help the case.

The examining attorney is allowed a lot of leeway about what they ask. You may not see the relevance of their question to the case–I may not see it either–but that does not mean that you don’t have to answer it.

Please rest assured that even if I am quiet, I am listening, and if I am allowed to make a necessary objection, I will.

Tricks I use on other people that I do not want you to fall for. 

1. I am really nice to deponents to get them to warm up to me and talk a lot.

It does not matter how nice the attorney is–they aren’t your friend and you aren’t having a nice chat over coffee. They are interrogating you in order to find out things that could rip apart your case or defense.

2. I get people to “guesstimate.

This is an easy way attack someone’s credibility later. If you guess something was 20 feet away because the attorney tells you it’s ok to just guess and the actual distance turns out to be 2 miles, you are not going to look like someone who knows what is going on. If you don’t know, say you don’t know.

3. I play dumb to make deponents think I don’t know the truth.

I often act like I don’t know something, just to see if someone will lie. For instance, I often ask someone if they have ever been sued, or gotten in criminal trouble, and assure them that I don’t mean any offense, but I have to ask everyone. Often, I have that person’s entire rap sheet sitting right in front of me. People will often lie, thinking that I do not know the truth and that I will believe their answers.

4. I will bait an argumentative person.

If you start arguing with the attorney, they can get testimony out of you that reads terribly on a transcript. Don’t argue with the examining attorney: that’s my job!

Additionally, argumentative witnesses are very off-putting to jurors and judges. The same is true of sarcasm. It just does not read well on a transcript, so don’t use it.

5. I ask people if I can see something they have with them. Don’t agree to give up something if you are asked for it, like a license, or wallet, etc., unless I tell you to go ahead. Tell the examining attorney to ask me for it later. Exception: You can refer to notes if you need to during your deposition, but please know that they will be shown to everyone present and will be made an exhibit to your deposition. Please do not bring anything to your deposition that we have not explicitly talked about beforehand.

Stay Tuned for Part 3: The Meeting Agenda and Video Examples

Every Day Can’t Be the Best Day

Today is not going to be the best day. 

In the next 12 days, beginning today, I will spend a full 8 of them in depositions. That’s 25 depositions total, maybe more, depending on whether a witnesses changes her mind about refusing to attend. That’s a post for another day.

Let’s review my weekend: I worked late Friday night, into Saturday morning, and then accidentally slept until 1. Baby shower Saturday evening (which was really fun!) meant working really early Sunday morning. Check. Got up at 5 and got a lot of work time in.

But, I also planned a cookout at my house for Sunday afternoon, because I don’t feel like I’ve had a weekend unless I’ve overextended myself.

As I was doing some yard work for the cookout (read: remodeling my entire landscaping, because anything worth doing is worth doing right!), I pulled a muscle in my “gro-in” as we say in the South, and the symptoms kept getting worse, until it became a possible hernia, according to the WebMD. I didn’t even know that women could get hernias until I read that article, so at least that part was informative.

After texting with 4-5 doctor friends (apparently, I need a quorum to make health decisions), I went to the emergency room to get checked out. A full two minutes with the doctor confirmed no hernia, but that didn’t seem to make the pain feel any better, resulting in an entire night of tossing and turning, even with the muscle relaxer. And now I have 5-6 depos today, starting in a couple of hours.

I wonder how I’m going to sit still with the shooting pains running up and down my leg? Or maybe I won’t. Maybe I will just randomly keep jumping in my chair and freak everyone out.

Sigh. It makes me think of these Atmosphere lyrics:

“Every day can’t be the best day

Do what you can right now, don’t hesitate

That’s why we try to make love and get paid

Take the bad with the good, now let’s play”

Because that’s what lawyers do. We try to make the best of bad days. Usually, it’s our client’s bad day. But, sometimes it’s our bad day.

Here’s how I’m making the best of it:

1. I made French toast with leftover hotdog buns:

hot dog bun french toast

No. I didn’t eat all of it. I did eat most of it. It’s important to eat a lot before long depos because it sucks to be the person with the growling stomach.

2. Red Bull. I don’t dare try to take another muscle relaxer, so I’m going to go the opposite direction.

3. Review the file and thank my lucky stars that I prepped this round of depos on a slow day about a month ago. Working ahead definitely has its advantages. The only left to do is copy some exhibits and get them organized. In order to reduce the weight of my briefcase, I’ll be doing the entire deposition off of my ipad in Evernote and working with DocScanner, which will give me fodder for another post.

4. Remember that this too shall pass.

How do you handle the days that aren’t the best days? I would love to know. 

Interview with Bill Mann, Chief Deputy Little Rock City Attorney

William C. Mann, III

Today’s post is an interview with William C. Mann, III (aka Bill). Mr. Mann is one of the nicest attorneys I have ever worked with and he is extremely good at his job. I am involved in a case with Mr. Mann in which there have been numerous depositions and I have learned something new every time I watch him. Without further ado, my interview with Mr. Mann:

JenniferCan you tell me about your life growing up? 

Bill: I grew up in three different towns. I was born in Searcy, which is where my parents are from.  Then I moved to Stuttgart in grade school for ten years when my dad was transferred there for his job. My dad’s job moved again to Pine Bluff, which is where I went for my last two years of high school. After I graduated, my parents moved back to Searcy, which is where they lived until their death.

Jennifer: Where did you go to college?

Bill: I did two years at Henderson State, then I transferred to UALR, which is where I graduated. Then, I attended law school at the University of Arkansas and graduated in 1979.

Jennifer: Are you married? 

Bill: Yes, in June, I will have been married for 34 years. I have two children. My daughter, 24, who lives in Little Rock, and a son, 29,  who lives in Colorado Springs.

Jennifer: What did you do after you graduated?

Bill: In 1979, when Bill Clinton was Governor, the Arkansas Legislature created the Arkansas Court of Appeals. One of the first judges was one of my law professors in Fayetteville, David Newman. So my first job right out of law school was working for him.

Then, I very briefly worked as in house counsel for Traveler’s Insurance Company. When they asked me to transfer to Hartford, Connecticut, I decided I couldn’t keep working there.

So, I went to work at the Arkansas AG’s office for a little over four years. I worked for two years doing capital litigation at the Supreme Court, both on appeals and habeas petitions. The last two years, I did consumer rate advocacy petitions. On one occasion, I had a case that went to Washington and I appeared before FERC. That was pretty fun.

Then I was in private practice for five and half years.

Then I joined this office in 1991.

Jennifer: And what was it that appealed to you about working for the City Attorney’s Office?

Bill: As you know, in private practice, the life blood is billing and I wasn’t enjoying it too much. This job came open and I had worked for the State Government before, and I had enjoyed that quite a bit. I thought this was similar, and it is in a lot of ways. I also thought it would give me more of a chance to do litigation and it has. I knew Tom [Carpenter, the City Attorney] from law school. He was a couple of years ahead of me.

Jennifer: I like that you point out that Tom is older than you!

Bill: He’s extremely older than I am, but I knew of him and when I was at the AG’s office, we had gone against each other on a couple of cases at the Supreme Court. After working for about 2.5 years, I moved up to be Chief Deputy in 1994.

Jennifer: In addition to litigation, what do you do?

Bill: I represent some different boards and commissions. For instance, I’m counsel to the Little Rock Civil Service Commission. That is limited to our uniform employees, police and fire. Anytime they are suspended for three days or more, or demoted or terminated, they have the right to appeal to the Commission. My role in that is to answer legal questions that come up. If the Commission elects to uphold the suspension or termination against the employee and the employee appeals to Circuit Court, I would be one of the attorneys to represent the Commission there.

I also am counsel to Little Rock Parks and Recreation, for ordinances, resolutions, and any legal questions that may come up from time to time.

I’m Tom’s primary backup for Board of Directors meetings and I am responsible for overseeing nine other attorneys and reviewing their work and answering their questions. That pretty much keeps my days full.

Jennifer: It sounds like you are pretty busy. My blawg is primarily designed for new attorneys or even those still in law school. Would you recommend your job to someone else? 

Bill: Yes, I would recommend our office. I would also recommend the Pulaski County Prosecuting Attorney’s Office for someone who is interested in getting lots of trial experience. We have hired people from that office before, because they have a lot of trial skills. You can transition to other areas of the law, but you can’t get those trial skills just anywhere.

Also, if you are interested in transactions, have a lot of land use work that involves contracts, if that is your career goal.

Jennifer: What is it that appeals to you about trial work? 

Bill: For some reason, I don’t know why exactly, I just love getting up in front of a jury and explaining our side of the case. I enjoy working with most lawyers I know. I like the challenge of the preparation and the depositions and just the presentation of it. I’ve done other areas of law practice, but for me that’s my favorite.

Jennifer: What other advice can you give to people just starting out? 

Bill: One of the things I tell our young lawyers, is, because I did it, is to not be too proud to accept any assignment. No matter what it is. As I was coming up, I took a lot of assignments that weren’t too glamorous. Any little thing will give you experience that you can use later. Somewhere down the line it will pay off for you. That may sound trite, but I believe it. But,  I don’t ask our lawyers to do anything I wouldn’t do, even at my advanced stage.

Jennifer: How do you make sure you spend enough time with your family and maintain your practice?

Bill: Well, that’s another good question. We work hard and do our jobs, but I also tell them that we are going to make sure that our families are our first priority. I tell them to make sure they take vacation and be with their families. I spent many days at work with a sick son or daughter taking a nap on my office floor, because my wife works too. We split the time of taking care of our children. My family is a huge priority for me. I think if I ever got to the point that work was overtaking it, I would find something else to do.  But that’s another advantage of working for the City. There are times that we have to work nights and weekends, but our office and lawyers do a good job of balancing home and work life.

Jennifer: Thank you so much for your time. 

Bill: You are very welcome.