NLD Event Recap: Court Practice Series on Civil Litigation

Last month, the Hon. Katherine A. Bacal and Stacy Fode, Esq., of Nukk-Freeman & Cerra, PC, offered civil practice tips and tricks as part of the NLD’s Court Practice Series.

One of the takeaway themes was remaining civil through all aspects of your case. Whether it be client intake, filings and responsive pleadings, discovery, or at trial, the speakers stressed the importance of being a “civil” litigator in both senses of the word.

Client Intake

Before accepting a case, try to examine both sides as soon as possible so you do not get caught in a position where you are unaware of what the other side may do. When first starting work on a case, you should gather the necessary documentation, send and honor litigation holds to preserve evidence, and then begin to prepare the case for trial. Also be aware of the state or federal rules governing your case to ensure you won’t miss a deadline before the case even begins.

Judge Bacal also recommends calling your opponent at the start of the case to begin nurturing a relationship. Even if you are already familiar with the opposing counsel, it is important to try and start fresh with any new case.

Fode reminded attendees not to respond to emails or phone calls from an aggressive opponent if you are not in the right state of mind. Drafting the always-frowned-upon aggressive email may feel cathartic at the time; however, that same email can end up before a judge out of context, creating the appearance that you were the aggressor. Work to meet and confer in a peaceable way to prevent a situation from escalating to the detriment of everyone involved.

Filing and Responsive Pleadings

When representing a corporate client, Fode recommends simple preliminary stipulations to encourage dialogue. Stipulate to the correct type of corporate entity, for example. This type of simple stipulation will start the conversation and hopefully move things towards a resolution.

Judge Bacal urges reigning in your client as well. The client may want you to file that aggressive brief or motion, or send an aggressive email. As heated as the client may be, these types of aggressive tactics are rarely perceived well by opposing counsel, the court, or the legal community at large. In the big little city of San Diego, your reputation as an uncooperative litigator will travel faster than any goodwill you gather. Reminding the client that you have other cases with your opposing counsel or before your judge may help them to see why the aggressive tactic is not the best approach.

Another practice tip is to think about what you are really after before you file a responsive pleading. Motions like a demurrer to an answer, or a discovery motion for something small, may at first seem like something important to fight for; however, impacting the Court docket over perhaps less significant issues may hurt the case and your reputation with the court in the end.

Discovery

The speakers had great advice regarding discovery. Judge Bacal proposed asking yourself, “What am I really asking for with this discovery that I don’t already have?” Fode advises making your questions broad enough to get everything but focused enough to get only what is pertinent.

Depositions, while an often-overlooked practice, are a great place to practice your direct and cross examination skills. Stay focused and have your documents, discovery responses, and information ready to go so you are in the best position to succeed at deposition. If you do not know where to start your preparation, look at the CACI jury instruction to see what is necessary to prove a cause of action.

Receiving too many interrogatories? Consider a protective order, and meet and confer on the voluminous requests presented. If you cannot come to an agreement, the Court will typically squeeze in an informal discovery conference to resolve the issue.

The important point is to remember to be civil. Especially after two years of COVID-19 backlogs, patience as an attorney and litigator is key. Being the bigger person is not always easy in this line of work, but striving to be better will take you further with your opposing counsel, other attorneys, and the court at the end of the day. Resolve the small things first before they become a mountain of trouble. And remember, there is always an answer even if it takes a little effort to find.