Trial Practice Series

Volume 2

VIDEO PROGRAM HANDBOOK

MARCH 1991
Panelists:
John W. Allured Hon. William A. Masterson
James J. Brosnahan Thomas J. McDermott, Jr.
Elizabeth Cabraser Robert A. Meyer
Max L. Gillam Donn P. Pickett
Reiko Hasuike Ronald Rus
Susan Iliston Hon. Barry Russell
Clayton R. Janssen Hon. William W. Schwarzer
Raoul Kennedy Leonard B. Simon
Dennis E. Kinnaird Hon. Alicemarie H. Stotler
Hon. Charles A. Legge Stephen E. Taylor
Jan Neilsen Little Hon. John K. Trotter

~EB
CP-84155

CONTINUING EDUCATION OF THE BAR· BERKELEY,CALIFORNIA

Advocacy and Management In Complex Litigation:
The FirstThirty Days

Thomas J. McDermott, Jr., with

Donn P. Pickett and Elizabeth J. Cabraser
 TABLE OF CONTENTS

INITIAL CLIENT CONTACT

1. CLIENT LIAISON 7

A. Establishing and Delegating

Responsibility for Ongoing Client
Contacts and Relations

B. Necessity of Establishing Rapport and

Access to Information and Documents

C. Location of Key Employees and Documents

D. View of Physical Facilities

E. Retention Letter

F. Billing Practices

G. Contingent Fee Agreements

II. BUDGET FOR LITIGATION 15

A. Purposes of Litigation Budget

B. Approaches to Litigation Budgeting

III. CONFLICTS EVALUATION . 18

A. Necessity of Conflicting Evaluation

B. Difficulties in Completing a "True"

conflicts Evaluation

C. Methods of Conflicts Checks

IMMEDIATE STEPS
I. IMMEDIATE STEPS AND INVESTIGATION OF LAW AND
FACTS . . . . . . . . . . . . . . . . 19

A. Document Preservation and Screening

B. Privilege Preservation

C. Initial Investigation of Facts

D. Initial Investigation of Law

E. Insurance Coverage Issues

3
 D. Utilization of a Computer Index System

ETHICS, CIVILITY and the "NICENESS RULES"

1. INTRODUCTION • 58

II. INITIAL CONTACT WITH OPPOSING COUNSEL 58

A. The initial contact with opposing

counsel sets the tone for the entire
litigation. It can mean the difference
between courteous ongoing relations,
or an enduring enmity which frustrates
the legitimate goals of both sides.
The initial contact should be civil,
firm and forthright

B. The defendant's perspective: why, when,

and how to request reasonable
extensions for pleading and
discovery

C. The plaintiff's perspective: why, when,

and how to grant reasonable extensions
without getting the case off
track

III. ONGOING CONTACTS WITH OPPOSING COUNSEL:

INCORPORATING "THE NICENESS RULES" OF
THE APPLICABLE JURISDICTION 59

IV. HOW TO BE "NICE" . • 60

A. Reading and Interpreting Local Rules,

Guidelines, the Manual for Complex
Litigation 2d, and Utilizing
Common Sense

B. Institutionalizing Effective
"Niceness" as Firm Policy

C. Tolling Agreements and Other

Stipulations

5
 INITIAL CLIENT CONTACT

I. CLIENT LIAISON

A. Establishing and Delegating Responsibility for Ongoing

Client Contacts and Relations

B. Necessity of Establishing Rapport and Access to

Information and Documents

It is very important to earn the confidence of a client's

personnel, so that a full and candid account of pertinent

facts may be obtained quickly.

C. Location of Key Employees and Documents

1. Study client filing and data processing systems and

identify personnel able to access them for relevant

materials. Note: The availability of computerized

data is a two-way street. Your adversary may

convince the court to require your client to make

runs of relevant data where the only alternative is

a laborious examination of the original entry

documents.

2. Arrange for preservation of evidence and suspension

of routine document destruction programs. Even

without a document preservation order, there is a

7
 agreed basis for the representation, avoiding

complaints, and, more significantly, avoiding

secret dissatisfaction.

2. Items to include in a retention letter:

a. Billing rates, if billed by the hour,

otherwise the agreed basis of fee calculation.
In a lengthy, complex case, it is desirable to
include a provision for increases in billing

rates in future years or a method by which

such increases are to be announced or

negotiated.

b. Identity of attorneys who will work on the

matter or an agreed method by which attorneys
will be selected. In cases which are expected
to last for some time, it is desirable to

include a provision for subsequent changes in

staffing.

c. Identity of client personnel principally

responsible for directing counsel. Just as

the client has a legitimate interest in

knowing who will be handling its case, it is

often 'helpful to counsel if it is made clear

at the outset which members of the client s I

9
 opportunity to reach agreement on the

frequency with which bills are to be rendered,

the form of the bills (i.e -the amount of

detail to be included), the time period within

which bills are to be paid, and the interest

rate to be charged on overdue bills.

F. Billing Practices

1. It is desirable to provide frequent detailed

descriptions of work done which identify the

lawyers and paralegals who rendered the service.

In a complex case, the need to render bills

promptly is especially great. It is best to do so

on a monthly basis, since the volume and complexity

of the work often cause the client to forget

quickly most of the tasks performed. Furthermore,

the broad scope of the work will often cause large

amounts of fees to accrue quickly, leading to major

disagreement if there has been any misunderstanding

as to the nature of the assignment.

2. Competing consideration: in a large, complex case,

detailed bills with daily entries by each

lawyer/paralegal become impossible to comprehend,

resulting in a loss of the "big picture." Consider

supplementing detailed bills with a cover letter or

summary statement describing the principal tasks

11
 method of calculating fees, and toward near

universal acceptance of the "percentage of

recovery" standard for fee awards in class actions.

In re Activision Securities Litigation, 723 F.Supp.

1373 (N.D. Cal. 1989)· (Setting 30% of recovery

"benchmark"); Paul. Johnson. Alston & Hunt v.

Graulty, 886 F.2d 268 (9th Cir. 1989) (25%

benchmark) •

2. Advancing and Costs on the Client's Behalf

The plaintiff's lawyer in complex litigation, such

as a securities or consumer fraud class action,

must often make an initial commitment to advance
the out-of-pocket costs of the litigation on the
clients' behalf. Defrauded investors and consumers
typically simply do not have the wherewi thaI to

invest in complex litigation, or may have, on an

individual basis, lost sums which do not justify
the costly pursuit of civil relief. Under these
circumstances, counsel must determine, at the

outset, whether she is ready, willing, and able to

advance costs which may range in the hundreds of
thousands of dollars. Here, the concept, of cost

cutting takes on particular urgency. The

association of co-counsel willing to share these

costs is a conunon solution: indeed, much complex

litigation is prosecuted by a formal or informal

13
 attorneys in federal Court. County of Suffolk v.

Lona Island Lighting Co., 710 F.Supp. 1407, 1413-14

(E.D.N.Y. 1989).

II. BUDGET FOR LITIGATION

A. Purposes of Litigation Budget

1. Encourages preparation of litigation Plan, i.e.

detailed statement of goals to be attained and

specific means for attainment of each identified

goal.

2. Involves client in development of litigation

strategy and weighing and selection of

alternatives.

3. Reduces likelihood of surprise and subsequent

reproach.

4. Provides critical path, useful for judging utility

of specific litigation moves. (This is particularly

helpful when quick decisions must be made in the

course of pretrial preparation.)

5. Provides mileposts by which progress can be

measured.

B. Approaches to Litigation Budgeting

1. Budgeting for all tasks during specified time

15
·paying fees based on hourly rates on a regular

basis will impact every aspect of the plaintiffs'

litigation plan, from the number of attorneys and

support staff involved, to the type of document

organization which is utilized. Contingent

representation requires a pragmatic and result

oriented attitude toward litigation budget and

support decisions. Here it is well to remember

that the "frills" for which a corporate client may
readily pay, such as computerized litigation
support, paralegals and investigators, and other

enhanced staffing may be beyond the budget of the

plaintiff or his counsel. On the plaintiff's side,
the emphasis must be on lean and result oriented

staffing and support. This is just as well:

computerized litigation support cannot develop, on
its own, the theory of the casp-,or an intelligent
analysis of the facts it stores. The plaintiff's
lawyer must remember to utilize the free basic

tools of complex litigation. In the federal

courts, these are the Federal Rules of Civil
Procedure themselves, and the Manual for Complex

Litigation2d, as well as local rules and

guidelines such as the Northern District of

California's "Guidelines for Discovery, Motion,

Practice and Trial" (1989). Within these
provisions are the means to streamline the process

of discovery, enhance the accessibility of

17
1MMEDIATE.STEPS

I. IMMEDIATE STEPS AND INVESTIGATION OF LAW AND FACTS

A. Document Preservation and Screening

a. Timing

b. Identification of document universe

c. Gathering of all potentially relevant

documents

B. Privilege Preservation

a. Current state of the attorney-client and work

product privileges

b. Identifying privileged communications

c. Creating and preserving work product

d. Joint defense privileges

e. Preventing waiver of privileges

C. Initial Investigation of Facts

a. Timing

19
E. Insurance Coverage Issues

a. Review of policies

b. To Tender or not to tender

F. The Non-plan Litigation Plan

a. Themes

--
b. To do lists

21
 period of time might involve few documents and limited

depositions, although the latter might be far more

"important" than the former.

B. The Time Problems.

1. How long will the case last?

A number of factors must be considered. Most

complex commercial litigation is settled; however,

it is not settled promptly. For example, a class

action grounded in securities fraud (or almost any

class action for that matter) cannot be settled

until a sufficient record is developed through

discovery upon which to base a settlement which can

be determined by the court to be reasonable for the

class members. See Fed.R.Civ.P. 23(e); Manual for

Complex Litigation 2d § 30.4.

Although it may be a long time between filing the

case and ultimate resolution, how much of that time

will be spent in active pretrial work and how much

simply waiting for a docket date to open?

Iv1anycases can be anticipated to extend beyond

normal limits. A criminal anti-trust prosecution

is usually followed by civil suits for damages

which, if lost, may be followed by shareholder

23
 are not beyond subpoena range and often go right

into the jury room.

The building of a factual record from documents is

a job ideally suited to the paralegal. No training

as a lawyer is necessary to grasp the factual side

of a case. Thus, the intelligent paralegal can

review documents with about the same perception as

a lawyer and at a far lower cost to the client.

Of .course, good paralegals can be used at just

about every stage of the litigation process with

the exception of actually appearing in court or at

a deposition. However, some of the more likely
uses in complex litigation include, in addition to

the review of documents, the abstracting of

depositions, the management of evidence, the

operation of computer retrieval systems, witness
and document management at trial, and coordinator
and documenter of staff meetings.

C. Establishing Costs Parameters and Forming a Litigation

Team: The Plaintiff's Perspective

St~ffing and budget decisions are determinative of

the economic feasibility of prosecuting a complex

case. By definition, both staff and monetary

25
 The lead or supervising attorney must be

particularly alert to the dangers of delegation:

buck-passing and the dilution of meaning as a task

is communicated to personnel with ever-decreasing

levels of experience, responsibility, or ability.

II. THE STAFF-BOOK

A. Definition and Purpose.

The purpose of a "staff" or "desk" book is to provide

each member of the legal team with a ready reference to

everything that is going on in a complex case. The

existence of a staff book is particularly helpful in

orienting new members of the team. In any complex case

utilizing ten or more lawyers and paralegals and expected

to last two or more years, the staff book is a necessity.

,B. Outline of a Staff Book.

Set forth below are various suggested subjects for

inclusion in a staff book. It should be noted that these

are suggestions only and imagination might dictate more

or less material. For example, pleadings are not

included in the following list because they are usually

too bulky to be included in a staff book, but certain

pleadings might be necessary depending on the individual

case.

27
 can be set aside for minutes of completed staff

meetings.

6. Computer Procedures. If a computer is being

util~zed in the case, full instructions should be

set forth in the staff book so that any authorized

member of the legal team may have a ready reference

to computer procedures.

7. Officers and Directors' List. In litigation

involving corporations, it is often handy to keep

an updated list of all officers and directors of
the corporation over the years which are relevant

to the issues in this case.

8. File Indices. In this section, all files being

maintained should be listed, together with their
location. This will serve not only as a ready

reference to find files, but also as a reference to

issues in the case (since evidence files are

usually maintained by issue), and as a guide to
directing newly discovered documents to the

appropriate files.

29
 approach to evidence files is, at the commencement of the

litigation, to break the case into various, broad

"material" issues. After the material areas of inquiry

are identified, then the client's files should be

searched and each document which relates to a material

issue should be filed within the file so labeled. If a

document reflects on several material issues, it probably

should be duplicated and placed in each file (see

Document Files below). After all of the documents have

been reviewed and sorted, they may then be placed in

chronological order to give a coherent view of the

evidence which your client has generated with respect to

each material issue in the litigation. It is usually

best to frame "material" issues as factual, rather than

legal, issues.

D. Document Files. Document files may be utilized to hold

lengthy documents which reflect on many material areas of

the case. Examples might be SEe Registration Statements,

lengthy contractual agreements, or advertising and

promotional materials. Since these documents reflect on

many issues likely to be placed in contention, it is not

profitable to duplicate them many times and place them in

each evidence file. However, consideration should be

given to marking up documents contained in the document

files and placing appropriate cross-references into the

evidence files.

31
II~ DOCUMENT MARSHALLING AND ORGANIZATION

A. in General

1. There are essentially three steps or stages in the

document marshalling and organization process.

a. Screening ~ Screening is the actual physical

process of reviewing the client's or other
files to collect relevant documents.

b. Organizing - The documents collected in the

screening process must then be organized
according to some rational scheme so that

documents may be readily retrieved.

c. Analysis Once the documents have been

organized, they may then be analyzed to

determine their evidentiary significance or,

as is often the case, to determine their
responsiveness to discovery requests. It
should be noted that the process of organizing

the documents is often also a step in the

analytical process, ~, physically

organizing documents by subject matter or
source.

2. The above steps must often be done simultaneously,

33
 will usually defer a large-scale review of its

files until a significant impetus arises, such

as the filing of actual litigation.

b. Typically, the trigger for the document review

process is the commencement of litigation,

either in response to a complaint filed

against your client or in preparation of the

filing of an action by your client. Again,

given the expense of the document review

process, you should consider the prospects of

an early settlement before commencing a

large-scale review of your client's files.

3. Who Should Screen the Documents?

a. The attorneys must define the scope of the

document screening, i.e., the types of

documents to be reviewed and the types of

documents to be collected. This definition

necessitates initial "hands on" involvement by

the attorneys, since the actual inspection of

the client's documents will redefine the scope

of the review, both as to the significant

issues involved and as to the type of

documents to be captured.

b. Once the scope of the document screening has

35
 review. This will enable this attorney

to better handle the myriad of decisions

which must constantly be made in the

document review process.

d. Consider using your client s personnel

I for

certain types of documeI1t screening. This is

usually less expensive for the client.
However, also consider the problem of divided

loyalties if the client IS· personnel are not

assigned full time to the document screening

team. A good solution is to have the client
hire paralegals who are assigned exclusively

to the litigation team.

4. Which Documents Should Be Reviewed and Collected?

a. Defining the types of documents which should

be reviewed and the types which should be
collected is really a two-step procedure:

(1) First it is necessary to identify the

document universe, i.e., what types of

documents have been generated by the

client and which of those documents are

relevant to the present litigation.

Often it is difficult to limit the

document universe. For example, in an

37
 areas.

b. Throughout this process you must balance the

cost of the document review against the level

of thoroughness desired, i.e., the more types

of documents to be reviewed and the more

subject areas identified in the issue

analysis, the more costly and time consuming

the initial document review. However, you

must also consider the cost of having to

review the client's files a second time

because of too great a degree of specificity

in the initial review.

5. How Should the Documents be Screened?

a. You should prioritize your client's files and

review the most significant files first. For

example, the correspondence and memoranda

files of senior management and the client's

legal department will typically be the most

informative and will advance your early

education as to the factual background of the

litigation.

b. You should carefully document the screening

process, i.e., which files were reviewed, by

whom and on what date. Also you should

39
 organized according to some logical

interrelationship, ~, bibliographic
(author, type of document, etc.), subject

matter or chronological groupings. The

advantage of such organization is that it

allows easier retrieval without use of a

manual or computer indexing system. The

disadvantages are that rational organization

requires careful identification of relevant
groupings, which may later prove less than

useful, and such organization leads to

tremendous duplication, ~, a memorandum

which discusses ten subject areas and must be
filed in each subject area grouping.

b. Random organization Documents are not

organized by any Lrrt er-naL system, but are
merely collected and numbered. You must then
rely on your indexing system to retrieve

specific documents. This is the preferred

system if you have a computer indexing system,

~ince it eliminates the time consuming
rational organization process and tends to
reduce duplication.

2. Whichever system you select, you should establish a

master file which will consist of one complete,

clean, centrally located set of all documents

41
 c. Consider numbering the documents in the master

file with a distinctive color, ~, red ink.

This allows you to instantly differentiate a

master file document from a photocopy of that

document.

4. The most important aspect of a document

organization system is to establish an indexing

system which will allow ready retrieval of specific

documents. The details of computer indexing

systems will be discussed in Section III, supra.

D. Document Analysis

1. Document analysis is basically of two types:

a. Resoonsive - Documents must often be reviewed

and analyzed to determine whether they are

responsive to a particular document request or

whether they contain information which must be

incorporated in a response to a particular

interrogatory.

b. Preoaratory In addition" documents must

often be reviewed and analyzed to determine

the factual background of the litigation or to

prepare for your own discovery, including the

preparation of witnesses for depositions.

43
III. COMPUTER SUPPORT SYSTEMS

A. Introduction: To Computerize or Not to Computerize

1. Once relevant documents have been collected and

organized, it is necessary to create a system to

index those documents so that specific documents

can be readily retrieved.

2. There are three basic approaches to document

indexing:

a. Manual Filing Systems - The documents can be

organized according to a specific filing

sequence. For example, the documents might be
arranged in chronological order. However, if
you wanted to find all documents authored by a

particular person or all documents relating to

a specific issue in such a system, you would

have to review the entire chronological file.
Therefore, it would be desirable also to order

the documents by author, or other

bibliographic information, and by issue. If

the number of documents involved is

significant, the creation of such duplicative

filing sequences will prove burdensome.

b. Card Index Systems - The documents can be left

45
 (2) Completeness All documents will be

considered for selection.

(3) Speed - The document search will be done

many times faster than a manual search.

(4) Cost - Once the system is established a

computer document search is much less

expensive than the same search done using

attorneys or paralegals and a manual

index system.

3. There are three basic types of computer index

systems:

a. Full Text - The complete text of each document

is fed into the computer and stored. The

index system is then searched for specific

words contained in the text of the documents

("key words") , ~, all documents which

mention "pricing." The advantages of this

system are that it avoids the tremendous

up-front cost of coding a large number of

documents and, additionally, avoids the

subjective decision making involved in the

coding process which can result in the

miscoding of documents. The disadvantages are

numerous. The cost of keying a large number

47
 relative ease, but when more subjective

criteria is involved the coders must be more

sophisticated about the case and they must

spend more time with the documents, both of

which significantly increase costs.

c. Hybrid Systems - It is possible to combine

features of both a full text and an abstract

system. In such a "hybrid" system the

bibliographic information is still coded, but

important sections of the document are
captured in full text. Additionally , the
capacity is often provided for attorney or

paralegal summaries of the document, which can

also be searched for key words.

B. Selecting a System Vendor

1. Normally, you will want to contract with an outside

litigation support system vendor ("vendor") to

create your computer index system. However, do not

overlook the possibility of creating the system

in-house· using your client's data processing

personnel, particularly if the client has a
sophisticated data processing department with
proprietary main frame computers. There are

se~eral disadvantages to this approach though:

49
3. In selecting a vendor, you might wish to consider

the following approach:

a. Meet with representatives of several vendors

and generally familiarize yourself with their

capabilities.

b. Create a specific statement of your

requirements and ask that all vendors base

their proposals on your statement. Since you

probably will not know what your final

requirements will be, just make your best

guess, ~, 100,000 documents with an average

of 3 pages per document and coding only

certain specific information. The purpose of

this exercise is to make the cost proposals

submitted by the vendors more comparable.

c. Ask for cost proposals based on your statement

of requirements and compare the cost

proposals. Ask for explanations for any high

or low cost quotes.

d. Ask the vendors to let you interview the

people who will actually be assigned to your

project, particularly the project manager.

You must realize that until you take this

step, you are dealing solely with sales

51
 general size of those matters and the general

stage of litigation. Ask also how many new

customers the vendor has acquired in the last

year or two.

c. Implementing a Computer Index System

1. System Design - Once you have selected a vendor,

you will immediately begin the design phase of the

implementation process. This is the most important

phase of that process, since it is at this phase

that the trial attorney defines what he wants from
the system. The vendor will assign one or more

people to work with the attorney to design the

system, but you must not abdicate your

responsibility. The best approach is to work
backwards, i.e., determine what information you
expect to need at the time of trial and then
determine what type of system will capture that
information at the lowest cost.

2. Deveioping Coding Criteria - The key decisions in

the system design phase will probably relate to the

selection of coding criteria, i.e., the

determination of what information will be encoded

from each document. Several observations should be

made concerning this process:

53
 require more time to encode each document and

you increase the chances of coding errors.

This will significantly increase the cost of

the coding process.

d. Do not overlook the future use of documents

in the system. If they are likely to be used

as deposition or trial exhibits, create the

capacity to reflect such use on your system,

even though it might not occur for months or

years.

e. Consider the future document review which you

might be performing. If attorneys are going

to review the documents for privilege, create

a code to reflect which documents are within

the attorney-client privilege or the

work-product doctrine. If attorneys are

going to review the documents to prepare

document analysis memoranda, create the

capacity to enter short attorney summaries of

the documents and their relevance.

3. Coding - The coding of a large number of documents

will probably be the most expensive item in the

creation of a computer index system. Therefore,

it should be closely supervised.

55
 index by making an on-line search, i.e., a direct

inquiry of the computer index from a remote

terminal. The safest use of the computer is to

search it for bibliographic information, ~, all

documents authored by X and sent to y. This is

true because the bibliographic information is

easier to code accurately. If you are searching

the system for subjective information like subject

matter, it is safer to use the most general subject
matter code and use paralegals to review the
identified collection of documents for more

specific subject areas.

2. Off-Line Searches Not all searches of the

computer index should be made on-line. The

attorney should also rely on hard copy indices of

the documents on the system. This will drastically
reduce the cost of using the computer index, since
·on-line search time tends to be expensive. These

"off-line" -se~rches are generally of two types:

a. Routine Digest - The vendor should produce

digests of all documents on the system broken

down by selected criteria. For example, there

should be a listing of all documents in

chronological order, a listing of all
documents. by author and chronological order

within the author breakdown, etc. Often it

57
 A. The initial contact with opposing counsel sets the tone

for the entire litigation. It can mean the difference

between courteous ongoing relations, or an enduring

enmi ty which frustrates the legitimate goals of both

sides. The initial contact should be civil, firm and

forthright.

B. The defendant's perspective: why, when, and how to

request reasonable extensions for pleading and discovery

C. The plaintiff's perspective: why, when, and how to grant

reasonable extensions without getting the case off track

III. ONGOING CONTACTS WITH OPPOSING COUNSEL: INCORPORATING

"THE NICENESS RULES" OF THE APPLICABLE JURISDICTION

Ongoing contacts with opposing counsel must continue in

a mode of civility and candor: this is essential to

establishing and maintaining credibility with opposing

counsel, and, ultimately, with the court. Some

procedural or discovery disputes are inevitable: prepare

to win these on their merits by avoiding personal attacks

or attempts to "slip one past" opposing counsel.

Remember that there is a community of complex litigators:

you will be meeting your opposing counsel again. These

are sel f-evident truisms, but they constitute the essence

of all formalized "niceness rules".

59
order to obtain cooperation, additional time to

investigate the claims, or an atmosphere conducive to

settlement. Additionally , virtually every subject of

judicial determination can also be the subject of a

stipulation. This avoids the cost and delay of

litigating every point, and can be utilized quite

effectively as a tool to streamline the litigation, and

to expedite the hearing and determination of those issues

which are clearly in dispute. This aspect of "niceness"

is particularly effective in earning trust and

credibility with the court. The court will appreciate
counsel who lighten its workload and simplify its task by

the affirmative use of stipulations which clear away

procedural underbrush, avoid or resolve discovery and

scheduling disputes, and allow the merits of the
litigation to be reached.

61
 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

GUIDELINES
FOR
DISCOVERY
MOTION PRACTICE
AND TRIAL
(1989)

63
 GUIDELINES

These guidelines are furnished for the convenience of counsel

and the Co.urt to promote the just, speedy and economical
disposition of cases. They should be accepted in that spirit.

GENERAL HATTERS

Attorneys appearing in the District Court in civil litigation

must observe three sets of rules:

The Federal Rules of Civil Procedure,

The District Court's Local Rules, and

The rules and practices of the particular judge

to whom the case is assigned.

You can become familiar with the rules and practices

of the judge assigned to your case in three ways:

(1) By obtaining from that judge's courtroom

deputy copies of the standing orders used
by that judge; and

(ii) By inquiring of the deputy (not the law

clerks) how that judge wants things done.

(iii) By consulting the Courtroom Proceedings

Interview Project.

The following matters require particular attention:

1. Removal from the state court. Before filing a notice of

removal from state to federal court, consider the jurisdictional
facts carefully in light of 28 U.S.C. § 1441 and other applicable
law: Do not attempt to remove unless you are satisfied that good
grounds exist.

Note that the existence of a federal law defense does not

normally create federal jurisdiction.

2. Related Cases (L.R. 205-2). If you have a case that you

believe may be related to another case on file in the court
(whether closed or not),· you must promptly file a notice of
related case. The judge with the lower numbered case will decide
whether to relate the cases, depending on whether assignment to a
single judge will be conducive to economy or efficiency.

3. Status Conferences (L.R. 235-3; Fed. R. civ. P. 16).

Judges generally hold a status conference in a case within three
months of filing of the complaint. The purpose of this conference
is to formulate and narrow the issues; to schedule a discovery
cutoff, pretrial conference and trial date and to explore the

65
restrictions on the scope of discovery stated in Rule 26 (b) (1)
and the good faith obligations implicit in Rul~ 26 (g). Direct
and informal communication between counsel 1S encouraged to
facilitate discovery and resolve disputes.
2. Timeliness. The time limits specified in the rules and
applicable orders must be observed. If additional time is needed,
a continuance must be sought in advance by stipulation and order.
3. Discovery cut-Off. Discovery cut-off dates in orders are
the last date for filing discovery responses, unless otherwise
specified. L.R. 230-6. To be timely, therefore, discovery
requests must be filed sufficiently in advance of the deadline for
responses to be made. The court will normally set cut-off dates
only after consultation with counsel. Once they are set, however,
they will be changed only for good cause shown.
4. Supplementing Discovery Responses. Rule 26 (e) requires
that an earlier discovery response be supplemented if it was
incorrect or is no longer true or to the extent it relates to
potential expert or other witnesses. Failure to comply may result
in exclusion of evidence or witnesses at trial.

5. Depositions
a. Scheduling. Barring extraordinary circumstances,
opposing counsel should be consulted and the convenience of
counsel, witnesses and parties accommodated before a deposition is
noticed. When a deposition has been noticed by the opponent in
the reasonably near future, you should ordinarily not notice one
in advance of or concurrent with that deposition without counsel's
consent. Note that it is often less expensive to bring the
witness to the deposition (and for the parties to share the
expense) than for the lawyers to travel.
b. Stipulations. When counsel enter into stipUlations
at the beginning of a deposition, the terms of the stipUlation
should be fully stated on the record of the deposition.

c. Questioning. Questions should be brief, clear and

simple. Rarely should a question exceed ten words. Each question
should deal with only a single point. Argumentative questions are
out of order. The purpose of a deposition is not to harass or
intimidate, but simply to make a clear and unambiguous record of
what that witness's testimony would be at trial.

d. Documents. Normally, except in the case of

impeachment, a witness should be shown a document before being
questioned about it.

e. Objections. Under Rule 30 (c), objections to the

manner of taking the deposition, to the evidence or to the conduct

67
 c. Preambles and Definitions. Avoid lengthy preambles
and complex and "all-inclusive" definitions.
d. Responses. Rule 33 (a) requires the respondent to
produce whatever information is available (but only what is
available), even if other information is lacking or an objection
is made. When in doubt about the meaning of an interrogatory,
give it a reasonable interpretation (which may be specified in the
response) and answer it so· as to give rather than deny
information. Generally ,the responding party is required to
produce information only in the form in which it is maintained.
If an answer is made by reference to a document, attach it or
identify it and make it available for inspection. (See Rule 33
(c) and! 7, below.) Generalized cross-references, such as to a
deposition, are no~ an a~ceptable answer.
e. Objections. Unless the objection is based on
pr:ivilege or burdensomeness, or a motion for protective order is
made, the information requested must be supplied to the extent
available, even if subject to objection. Counsel's signature on
the answer constitutes a certification of compliance with the
requirements of.Rule 26 (g).
·f. Privilege. A claim of privilege must be supported by
a statement of particulars sufficient to enable the court to
assess its validity. (See L.R. 230-5.) In the case of a
document, such a statement should specify the privilege relied on
and include the.date, title, description, subject and purpose of
the document; the name and position of the author and the
addresses of other recipients. In the case of a communication,
the statement should include the date, place, subject and purpose
of the communication and the names and positions of all persons
present.
7. Requests for Production of Inspection
a. Informal Requests. See! 6.a. above.

b. Number and Scope of Requests. Requests should

specify with particularity the title and description of documents
or records requested. Information needed for specification can
often be obtained by .informal discovery, or by depositions or
intertogatories if necessary. Argumentative or catchall requests,
such as "all documents which support your claim," are
objectionable. The certification requirement of Rule 26 (g)
applies.

c. Responses. Materials should be produced either with

labels identifying ..
t.he specific requ~sts to which they respond or
in the manner in whiCh they are kept in the ordinary course of
business. Burying docUments, swamping one's opponent with vast
numbers of irrelevant documents and similar procedures do not meet

69
 MOTION PRACTICE

1. General. Do not file a motion without first exploring

with opposing counsel the possibility of resolving the dispute by
stipulation. Many motions now being filed could be avoided.
2. Motion to Dismiss or for Summary Judgment. Motions to
dismiss for failure to state a claim under Rule 12 (b) (6) must be
made solely on the pleading~. If matter outside the pleadings is
referred to, the motion 1S treated as a motion for summary
judgment. Fed. R. civ. P. 56. Do not file a summary judgment
motion unless you are satisfied that a material issue can be
resolved without reference to disputable evidentiary facts. A
motion devoted to arguing evidentiary facts is likely to lose. If
you think your opponent has admitted the material facts, make it
of record by using requests for admission.
3. Supportina Memoranda and Other Papers. Follow these
guidelines:
Be helpful: State the grounds for the motion and the issues
~learly at the outset, marshal the supporting facts and law and
distinguish opposing authority. Check all citations, include jump
citations, and verify the continuing validity of decisions relied
on.
Keep it short: Rarely if ever should it be necessary to
exceed the 25-page limit under L.R. 220-4. Approval for filing a
brief in excess of 25 pages will only be granted when deemed
necessary by the judge, and without it the brief will not be
filed. Avoid voluminous supporting documentation; the larger the
motion, the less its chance for success.
Be candid: Address directly the hard issues that must be
decided; do not sweep them under the rug. cite adverse authority
and explain why it does not support a ruling against you. Don't
gamble on the judge not finding it. Don't mislead the court,
either as to the facts or the law; once your credibility is in
question, it is difficult to restore it. See California Rules of
Professional Conduct 5-200.

Avoid invective and vituperation: Argument advances your

case far less than exposition and analysis. Adjectives and
adverbs, other than those having independent legal significance,
do not make a brief persuasive; avoid them.

Submit a proposed order, retaining the original.

Submit an extra copy of all papers for use by the judge's

chambers.

71
 ':":"j" b. Ask brief, direct and simply stated questions. Cover
o:n~point at a time. Do not ask a witness "do you recall "
unless the fact of his recollection is material. Use leading
questions for background material. Write out the examination or
have-at least a complete outline.
c. Cross-examination similarlY should consist of brief,
simple and clearly stated questions. It is helpful to write out
questions in advance but do not read them. Cross-examination
should not be a restatement of the direct examination nor should
it be used for discovery or to argue with the witness.

d. without leave of court, only one lawyer for each

party may examine anyone witness, and only one may make
objections during the testimony of any witness.

4. Using Depositions
a. The deposition of an adverse party may be used for
any purpose. It is unnec;:essaryto ask a witnes$ if he "recalls"
it or otherwise to lay a foundation. Simply identify the
deposition and page and line numbers and read the relevant
portion. Opposing counsel may then immediately ask to read such
additional testimony as is necessary to complete the context.
b. The deposition of a witness not a party may be used
for impeachment or if the witness has been shown to be
unavailable. For impeachment, allow the witness to read to
himself the designated portion first, ask simply if he gave that
testimony, and then read it. Opposing counsel may immediately
read additional testimony necessary to complete the context.

c. A deposition may be used to refresh a witness's

recollection by showing it to him, or, just as any other document,
as a basis for relevant questions.

d. In bench trials, do not offer depositions wholesale. "

Unless all of the testimony is important, copy the rel~~ant pages
only, staple the extracts from each deposition, and Offer each as
an exhibit.

e. Note: It is the responsibility of counsel

anticipating use of a deposition at trial to check in advance of
trial that it has been made available to the witness for signature
and to have the original available in court.

5. Obiections

a. To make an objection, rise, say "objection" and

briefly state the legal ground (e.g. "hearsay," "privilege,"
"irrelevant") .

73
 8. Use of Prepared Direct Testimony
In bench trials when the direct testimony of witnesses
has previously been submitted in narrative wri.ttenstate~ent form,
the proponent of the witness must have the w1tness ava1lable for
cross-examination unless cross-examination has been waived.

The following procedure should be followed:

When the witness is called to the stand, ask the witness

to identify the statement, which should be premarked as an
exhibit, as his testimony and to state that it is true and
correct. Then offer the exhibit.

9. Conduct of Trial
a. The court expects counsel and the witnesses to be
present and ready to proceed promptly at the appointed hour. A
witness on the stand when a recess is taken should be back on the
stand when the recess ends.
b. Bench conferences should be minimized. Raise
anticipated problems at the start or the end of the trial day or
during a recess.

c. Have a sufficient number of witnesses available in

court to fill the time available. Running out of witnesses may be
taken by the court as resting your case.
d. Trials normally are conducted each day except on the
day scheduled for the motion calendar. Do not assume that the
court will recess on any of those days unless prior arrangements
have been made with the court and counsel.

e. Counsel are expected to cooperate with each other in

the scheduling and production of witnesses. Witnesses may be
taken out of order where necessary. Every effort should be made
to avoid calling a witness twice (as an adverse witness and later
as a party's witness).

f. Counsel should be prepared each day to discuss with

the court the next day's schedule of witnesses and exhibits.

10. Jury Trial

a. When trial is to a jury, counsel should present the

case so that the jury can follow it. witnesses should be
instructed to speak clearly and in plain language. When documents
play an important part, an enlargement or an overhead projector
and screen should be used to display the exhibit while a witness
testifies about it.

75
 Los Angeles County Bar Association

Litigation Guidelines
Adopted by the Board of Trustees April, 1989

Preamble

M--A~Y BELIEVE
have so deteriorated
crisis-one
that relations
that our profession nears a
that not only implicates how we deal with
between lawvers promise principles: they show a steady resolve to stand
by them.
Still. lawyers are said to be held in low esteem by
each other but threatens our usefulness to society. the the public-and sinking lower. Many see us as unpleasant
ability of our clients to bear the cost of our work and the people who put their own egos and monetary arnbition-,
essential values that mark us as professionals. before the interests of clients or society. We know that is
There have always been lawyers who have abused not a true picture of the profession as a whole. but growing
each other and the judicial system. but they seemed to be incidents of questionable conduct make our case an in-
few in number. Now. some perceive. abusive conduct is creasingly hard one to make.
gaining new adherents cloaked in the mantle of forceful If we are right. something must be done. As a
advocacy. They proclaim that clients are best served by modest first step. the Committee has prepared the follow-
the intimidation of opponents.a relentless refusal to ac- ing guidelines for lirigators. We do not expect every
commodate and the use of tactics that impose escalating lawyer will agree with every guideline. They simply
expense on an adversary. Be difficult and the other side reflect our best effort at encouraging decency and cour-
may cave. they think.. tesy in our professional lives without intruding un-
The Committee on Professionalism of the Los An- reasonably on each lawyer's choice of style or tactics, We
zeles
••... Counrv ~ Bar Association
-. thinks otherwise.
.. : For us. have not come out against "hardball" as such nor do we
filing needless interrogatories or oppressive document advocate anything less than forceful. dedicated advocacy.
demands are not acceptable tactical. ploys just because But we think our profession will be a better one if the
they will divert the other side by requiring useless work. guidelines become the accepted norm.
For us. the refusal to accommodate other counsel is not a Nothing in the guidelines is intended to conflict WIth
sign of strength or determination but a simple act of any court policies or rules which are. of course.
unreasonableness likely to be revisited on the instigator. paramount.
all to no productive end. For us. the idea that civility and The Committee on Professionalism of the Los An-
candor stand in the way of desired results is in fact geles County Bar Association: William W. Vaughn
inconsistent with the achievement of long term goals. (Chain. Maxwell M. Blecher. Michael J. Bonesteel. John
including successful results for our clients. R. Cadarette.Jr .. Richard E. Drooyan. Charles R. Engtivh.
Most lawyers impose high standards on themselves.
They are courteous. candid. and accommodating toop-
Catherine B. Hazen.
C. Douglas
~ Rex S. Heinke. Clinton \-1. Hodzes.
Kranwinkle , James J. McCarthy. Gavin
-
ponents. judges and witnesses-even when faced with Miller. Margaret M. Morrow. Andrea S. Ordin. Ja:- Joel
less professional behavior by their adversaries. ·By meet- Plotkin. Hon. David M. Rothman. Hen. Pamela A.
ing those high standards. lawyers do not sacrifice their Rymer. Robert S. Schlitkin. Hon. Diane W~I~ne. Lee B.
clients' interests: they advance them. They do not com- Wenzel.

The Comrnince a~.:lr-.lhl\~h..·d~t·,

w uh Ih.lIll, the: hl.:aJ -rart It \\a' ,l!1\cn In fUmlUI~lIrt:! I" guidl!llI'~(," h~ Iht: "Prnp,,'cd Code or LIII~~llinn CI1f1dll
•.l· prtllllul;.lll"d III
1'1""h~th.: Curnrnun-e on FCl.kr,1I Court- "f the ~''''':'~I,un<,f the Bar "'th.· Ci" IIf \c •.•. Yur], .:h",'cd h~ Jchr, K,,:I!i<1.1,1'1", c-,,\
._--------._--- .-- ------ -- ---

Copyright 1989 Los Angeles County Bar Association. Reprinted by

permission.

77
 5; Depositions
a. Depositions should be taken only where actually
needed to ascertain facts or information or to perpetuate
testimony. They should never be used as a means of
harassment or to generate expense.
b. In scheduling depositions. reasonable consideration
should be given to accommodating schedules of opposing
counsel and of the deponent. where it is possible to do so
without prejudicing the client's rights.
c. When a deposition is noticed by another party in the
reasonably near future. counsel should ordinarily not
notice another deposition for an earlier date without the
agreement of opposing counsel.
d. Counsel should not attempt to delay a deposition for
dilatory purposes but only if necessary to meet real
scheduling problems.
e. Counsel should nOI inquire into a deponent's personal
affairs or question a deponent's integrity where such
inquiry is irrelevant to the subject mailer of the deposi-
tion.
f. Counsel should refrain from repetiti ve or argumentative
questions or those asked solely for purposes of harass-
ment
g. Counsel defending a deposition should limit objections
to those that are well founded and necessary for the
protection of a client's interest. Counsel should bear in
mind that most objections are preserved and need be
interposed only when the form of a question is defective
or privileged information is sought.
h. While a question is pending. counsel should not.
through objections or otherwise. coach the deponent or
suggest answers.
i. Counsel should not direct a deponent to refuse to answer
questions unless they seek privileged information or are
manifestly irrelevant or calculated to harass.
j. Counsel for all parties should refrain from self-serving
speeches during depositions.
k. Counsel should not engage in any conduct durinz a
deposition that would not be allowed in the presence of a
judicial officer.
79
6. Document Demands
a. Demands for production of documents -hould be
limited to documents actually and reasonably believed to
be needed for the prosecution or defense of an action and
not made to harass or embarrass a party or witness or to
impose an inordinate burden or expense in responding.
b. Demands for document production should not be so
broad as to encompass documents clearly not relevant (0
the subject matter of the case.
c. In responding to document demands. counsel should
not strain to interpret the request in an artificially restric-
tive manner in order to avoid disclosure.
d. Documents should be withheld on the grounds of
privilege only where appropriate.
e. Counsel should not produce documents in J disor-
ganized or unintelligible fashion. or in a way calculated
to hide or obscure the existence of particular documents.
f. DOCument production should not be delayed to prevent
opposing counsel from inspecting documents prior to
scheduled depositions or for any other tactical reason.
7. Interrogatories
a. Interrogatories should be used sparingly and never to
harass or impose undue burden or expense on adversaries.
b. Interrogatories should not be read by the recipient in
an artificial manner designed to assure that answers are
not truly responsive.
c. Objections to interrogatories should be based on a good
faith belief in their merit and not be made for the purpose
of withholding relevant information. If an interrogatory
is objectionable only in part. the unobjectionable portion
should be answered.
8. Motion Practice
a. Before filing a motion. counsel should engage in more
than a mere pro forma discussion of its purpose In an
effort to resol ve the issue.
b. A lawyer should not force his or her udversary 10 make
a motion and then not oppose it.
 Faulkner had the temerity to hire on with a bastard that sued
my biggest motion picture studio client over its Trademark. He
noticed a 30(b)6 deposition of the corporation.
Rules Like White Elephants When I appeared in the deposition room, I could see.the fear
in their faces.
(A HemillgtL'aynightmare after reading Litigatum Guidelines "What the hell are you doing here with that lion!"
by the Los Angeles Coumy Bar Association) "This is my client. He speaks Ior the corporation."
"What does he know about Trademarks?"
"He is the Trademark!"

I read the niceness rules

and they were good. Men (and some women, I am told) have
Leo let out a roar and they all jumped a foot.
"What was that?"
"That's the rest of the Trademark:'
"How can he answer questions?"
slaved over the rules to make the world better. Fat chance.
"One roar for 'Yes: two for 'No.' and three for 'irrelevant, im-
Lawyers are lawyers. a rotten lot, even in Paris.
material and ambiguous.' "
Doc told me that time we were up in Michigan killing caribou
I could see the sweat forming on Faulkner's lip.
that lawyers were rotten. Doc was a lawyer. I could see by the
"All right, let him sit here opposite the window."
squint in his eye and the snide grin that he knew. That's when
. 'My client does not face the sun. It reminds him of his home
I decided to become a lawyer.
veld."
If Carstan had not introduced me to the Pemod at Harvard
"You rnean.we'Il all have to move our seats."
Law. it might have been fine. Perhaps the dean, well-lighted of-
"It would be advisable."
fice of the corporate lawyer. Or the deep fresh earth of real estate
Faulkner's note-taking hand was beginning to shake. I could
law. But by the third year the Pernod had acted. my brain was
see he was the coward I thought him to be.
gone, and alii wanted was to fight, to kill, to war. When I told
"I-I can't go on!"
this to the old gringo, I saw the look of fear come into his eyes.
"Then I shall move to dismiss the Complaint for failure to com-
"You are a trial lawyer," .he said softly. On graduation I en-
listed - the ABTl.., worst of the lot plete discovery and request 525.000 in fees for my linn and two
dead gazelles for my client."
- and was posted to the heavy
"Damn you! Some day the County Bar will make niceness
fighting in L.A. .'
rules and your ilk will die out."
When we disembarked, the smoke .
and haze that filled the air spoke." "1b hell with Fascist niceness rules' They will come and they
volurnesof the fighting, now and' will prevail. But some of us will die with head high and ball low
and inside."
past. I was immediately sent to the:'
hottest spot, Central District, U.S;·:. Those were the days.
Fed. Walking the halls, I saw the' Now it is over. The regiamenteros of the County Bar have
scruffy glassy-eyed men' (and', begun their mop-up. Firing squads go day and night. The old
women) who had been in it too long;',: amigos, Nick. Frederick, Henry, Manuei. all dead. What can be
too many defaults taken on the' said?
twenty-first day, too many expletives, . Codes of honor were my life. I believed in them. But it was
hurled at opposing' counsel, too' . the code of steel, the steel ball of the IBM Selectric, smashing,
many letters written only to create a Anon_ smashing into paper, day and night, multiplied by millions un-
record. Civility could not exist here, should not exist. These men tiI the paper crushed all in my way. Now, the young whelps over
(and women) were the killers. Better to place them together; kill their Perriers build their code. It is fine, but God help them when
each other, be done with it. the client wants blood.
When Ilett Boston, Fr-mcis said, "You'll live a short life." "But The old man will see. The young ones will come to him to taIIc
happy," I replied, . long of the days before we said a farewell to arms.
And at first it was good. The clean swish of the papers as they -Anon.
went out the door to be served on Christmas Eve. The sharp
(The. author desires to remain anonymous due to fear of
jolt of m~•. "No" as some poor bastard begged for an extension.
The queer feeling of exaltation as I crafted a !act out of whole
repnsals. Houever: we may reveal that he is a former Editor
of this publication.)
cloth .
.But the sanctions. Command had promised us sanctions and
soon we had them. We lobbed demands for sanctions into their
midst interminably and they gave the same; Year after year after
year the shelling grew. One landed outside Whitley's office, sanc-
tion demanded for failure to give 1947 telephone number of
plaihtiff, unexploded .. but he went mad just the same,
Yet there were times when the beauty ran clear. To slide the
sword swiftly into a deposition witness, after' he .has been
weaicened by innumerable bandolier pricks of.badgering irrele-
vant questions was sweet. The startled look on the trustee's face
as he realizes the incision 1 have made when I state for the
record: "You immovable beast, we sue your charitable founda-
tion and you won't even tell us Whom the hell doles."
It seems only yesterday that Faulkner and I had our mano a
mane over the deposition table and I bested him. The damn
niceness rules would bar it today. .

Reprinted with permission of the Association of Business Trial Lawyers,

81
 1
2
3
4 IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA

6
7 In Re ORACLE SECURITIES LITIGATION ) C-90-0931-VRW
)
8 ----------------------------)
This Document Relates to: ) STIPULATION FOR DISMISSAL
9 ) WITHOUT PREJUDICE AND
DERIVATIVE ACTIONS ) TOLLING AGREEMENT
10 )
11
12 The Plaintiffs in the derivative actions, and defendant

13 Arnold N. Silverman, by and through the undersigned, their

14 respective counsel of reco~, hereby stipulate and agree as

15 follows:
16 1. Arnold N. Silverman will not be included as a

17 named defendant in the Consolidated Amended Derivative Complaint

18 to be filed and served herein.

19 2. The derivative claims against Arnold N. Silverman

20 are dismissed, without prejudice, with each party to bear its own

21 costs.

3. Any and all statutes of limitations applicable to

23 the derivative claims against Arnold N. Silverman, including, but

24 not limited to, the claims asserted against him in the original

25 'Derivative Complaint and the claims asserted against the named

26 defendants in the Consolidated Amended Derivative Complaint, are

27 hereby tolled for a period of three (3) years from March 29,
28
16.ora -1-
Stipulation for Dismissal Without Prejudice
and Tolling Agreement

83
1 C. OLIVER BURT, III
JAMES R. MALONE, JR.
2 GREENFIELD & CHIMICLES
361 West Lancaster Avenue
3 Haverford, Pennsylvania 19041
Telephone: (215) 649-3900
4
5
6 By:

7
Attorneys for Derivative Plaintiffs
8
9 MICHAEL L. RUGEN
HELLER, EHRMAN, WHITE & McAULIFFE
10 333 Bush Street
San Francisco, California 94104
11 Telephone: (41 -6000

12
13
By:
14 RUGEN

15 Attorney~ for Arnold N. Silverman

16
17
18
19
20
21
22
23
24
25
26
27
28
16.ora -3-
Stipulation for Dismissal Without Prejudice
and Tolling Agreement

85