Out-of-the-Box Lawyering

Are you looking for a sample of a product? Or you can't find something you've been looking for to help prove your case? How about searching for it on eBay? It's worked incredibly well for other attorneys

Have you ever searched for a product similar to the one that caused your client's injury? Maybe your client's product was destroyed or was discarded, and the manufacturer doesn't make the product any more. Or have you searched for something else because it was useful for another purpose? What can you do? Here's one out-of-the-box solution: Try eBay.

Attorneys have been using eBay to find exhibits in a variety of cases such as the lung-cancer smoking cases and the asbestosis cases. For instance the Mercury News, in an article entitled "Lawyers compete for evidence in eBay auctions," reported that attorney Mark Lanier paid $2,125 to obtain a 1941 Naval Machinery manual. Lanier, a Texas attorney, was "was bidding against a defense lawyer to get his hands on an evidentiary trophy filled with details on where and how asbestos was used aboard ships."

The article notes that Lanier is not the only attorney using eBay. It cites a Los Angeles lawyer who, for his lung cancer cases, purchased some old cigarette advertisements to use "to re-create for jurors the atmosphere in which his clients got hooked."

The article describes other uses: "A virtual time capsule, eBay holds out a seemingly endless supply of commercial and household artifacts, historic corporate documents, maintenance manuals and product catalogs that can help asbestos lawyers pin down where clients encountered the hazardous material -- and who can be held liable."

Another article, this one on the State Bar of Texas site, entitled "Lawyers Mine the [Net] for Evidence," reports that Lanier purchased an un-opened pack of Kent Micronites from the 1950s for $1,025 because it was thought to contain asbestos in the filters. The article added that the testing was proceeding.

If you want to find more on how eBay has been used, take a look at Law.com's article "eVidence [sic] on eBay." You can also search Google for "eBay asbestos."

Happy hunting using this potentially invaluable out-of-the-box tool.

The SODDI defense – You do know the SODDI defense, don't you?

In case you haven't heard of it, the SODDI (pronounced sahd-ee) defense is defined in Black's Law Dictionary, 7th edition. Black's defines it as "slang. The some-other-dude-did-it defense; a claim that somebody else committed a crime, [usually] made by a criminal defendant who cannot identify the third party."

Both plaintiffs and defendants in a civil case might, in an appropriate case, sarcastically argue that the other side is using a SODDI defense. This may be an out-of-the-box solution, but there are questions as to exacly when it might be used without alienating the trier of fact. It's sort of like in science – sometimes scientists make discoveries and only later find ways to apply them.

Please let me know if you ever use it or have it used against you.

Out-of-the-box uses for video depositions

Virtually every litigator has taken or knows about taking video depositions of witnesses and parties. And those depositions have almost always been taken in someone's law office or in a room somewhere in an opponent's office or in a hotel. Craig Ball is a past president of the Houston Trial Lawyers Association. His website, craigball.com, has a variety of great links. In an article entitled "Technology and the Power of Persuasion Beyond Bullet Points," which is in the May/June 2003 issue of ABA's Law Practice Management, he suggested what are to me novel ways to use video depositions by his suggesting unusual places to take those depositions. For instance, he suggested video-deposing an investigating police officer at the scene of the accident in question. He also suggested video-deposing a physician in the examining room. As he stated, "Video technology makes this eminently practical and gives the officer the opportunity to show the investigation that was performed and the doctor the chance to demonstrate diagnostic procedures." He added that "there's no rule that says a deposition need be conducted entirely at one location. It could begin at one location and be adjourned to another so as to cover other topics."

You will probably come up with other possibilities. Once you have the idea of on-site video-deposing as an additional arrow in your legal quiver, the potential is wide open for potential uses of that tool.

Here are two out-of-the-box ways that retired appellate judges may be helpful to you

There is now a whole new industry of using retired judges in a variety of ways. They have already mediated cases that were on appeal. Presumably, they, as retired judges, have also been used for moot courting appellate arguments.

I was recently told how they could be helpful in other ways. I learned that a party was going to file an application for a writ of certiorari to an appellate court for it to overturn a pre-trial ruling of a trial court. The party retained retired court of appeal judges to review its application to help improve the likelihood that the appellate court would grant the party's application and reverse the ruling of the trial court. I don't know what happened, but I would bet that the appellate court was more likely to rule in the party's favor after the party revised its application based on the recommendations of the retired judges.

Additionally, of course, retired judges could also review appellate briefs so that parties could gain the insights of the retired judges and improve their briefs, and, hopefully, their chances for success.

How companies like MCI and Enron will be turning lemons into lemonade – how they will receive money from their overstated earnings

Here's another example of how you can turn lemons into lemonade. Everyone, of course, is familiar with MCI and Enron Corporation. The Wall Street Journal, May 2, 2003, reported that those corporations are in the process of collecting or filing for federal income tax refunds because they paid taxes on profits which they falsely claimed they earned.

MCI, for instance, could be getting a refund of hundreds of millions of dollars. A hundred million dollars here, a hundred million dollars there. Pretty soon it could give some help to the creditors. At least they're better off with the refunds than without them.

Today's out-of-the-box fortune cookie: "Unless you purposely think about turning your lemons into lemonade, you probably won't discover that you can actually turn those lemons into lemonade."

Are you looking for a prior edition of a book, such as a medical treatise? Or are you trying to find some other publication that was published a few years ago and is no longer in print?

Let's say, for instance, that you were looking for the 9th Edition of Campbell's Operative Orthopaedics that was published in 1998. (The current one, the 10th edition, was published in 2002.) Your med-school library doesn't have it. How can you get it? Did you know that many libraries at educational and other institutions belong to a service called OCLC. (OCLC is operated by Online Computer Library Center, Inc.)

Libraries which belong to OCLC, and there are over 43,000 of them in 86 countries and territories, enter their purchases when they buy new books, and many of them have entered much of their prior holdings from years back. A librarian in a library that subscribes to OCLC can search its database and determine whether there are any libraries anywhere in the world that have listed the set.

Librarians can make what they call an Interlibrary Loan from almost 7,000 of these libraries and have the holding library send the set to the library you are using. The normal charge for this service is nominal – probably less than $20. It might take two weeks or so to get a book, but, it's a way to obtain a volume that you can't find anywhere else.

To make obtaining the book even easier, OCLC's database shows which libraries have the particular volume. If there is a library in your area, you can simply go yourself or send someone to check out the volume or copy whatever pages are pertinent.

Another out-of-the-box solution is to use one or more of the various out-of-print search services to try to find the volume. And you can search on Google for "out-of-print" to find the various services.

How a concerned U.S. Attorney's office "settled" a potentially embarrassing prostitution case by allowing a boat to plead guilty. Lawyers can often find out-of-the-box ways to settle their cases. Here's what the U.S. Attorney's office did.

The U.S. Attorney's office in New Orleans was engaged for some time in a series of criminal cases involving a brothel in New Orleans. (A brothel in New Orleans!! As Captain Louie would have said, "I'm shocked, shocked to find that prostitution is going on here.) The Feds originally thought, when they were doing their wiretaps, that they would find all sorts of criminal violations regarding drugs and other heavy federal offenses. Instead, they only found a New Orleans brothel, and no drugs or any other activity they were originally looking for.

After 9/11, the Feds obtained indictments against, among others, a madam, and various prostitutes. They also obtained an indictment against two businessmen whom they charged with prostitution conspiracy. The two faced up to five years in prison because of their alleged roles in hiring hookers to participate in a party on a yacht which one the men owned and which had sailed from Louisiana to Mississippi with the prostitutes. (You're not going to believe this, but the yacht really – REALLY – was named CRIME SCENE.) The New Orleans Times Picayune of April 30, 2003, in a page 1 article, reported the following:

"The trial was scuttled at the last minute when defense attorneys prepared motions to force the publication of the customer list and, perhaps, force the U.S. attorney's office to bow out of the case because of the connections of two of the johns.

"After those revelations, two veteran prosecutors . . . took over and began crafting plea offers that defendants couldn't refuse. The most creative plea bargain was given to the only two customers to be charged . . . Originally facing felony charges for hiring hookers for a party on [the yacht of one of the defendants] as it crossed state lines from Louisiana to Mississippi, the two men were allowed to plead guilty to an obscure maritime law characterized as a ‘petty offense.' Under the unusual arrangement, the boat – a 41-foot Sea Ray named Crime Scene – pleaded guilty to a felony and the corporation that owns the boat was fined $80,000." (There are additional reports in the Times-Picayune, including one in the issue of April 24, 2003.)

It's amazing what creativity even the Feds can come up with when they are too embarrassed to proceed to trial.

It's also really great to know that New Orleans is now vice-free.

P.S. I will, in future articles, be discussing other interesting out-of-the-box settlements. In some of those, the plaintiffs agreed to take less cash but received non-cash agreements from the defendants. Those agreements made the plaintiffs happier than if they had received the additional cash.

If you have had any out-of-the-box setllements, please send them to me.

Are your judges or your opponents suffering from phronemophobia?

Phronemophobia is a condition I know that you, as readers, don't have. But perhaps you know other lawyers, and maybe even a judge or two (or more), who have the condition.

According to panphobia.com, it's pronounced phro-nem-o-pho-bia, and it's defined as "a fear of thinking."

The site lists by category a variety of phobias, including fears of going to sleep, of speaking, of ridicule, and of sex. It discusses over 200 separate fears.

Incidentally, panphobia, for which the site is named, is "the fear of everything."

What to do when you need to try your case and the case ahead of yours just won't settle

Let's say you're number two on a court's trial docket and the case ahead of yours just won't settle. You have experts from all over the country in town and there are others you are paying to be on call. If your trial is continued, it's going to cost your client $40,000 in expert witness fees, and that's not counting your fee for prep time for the next trial date.

Here's how maybe – just maybe – you can get your case tried. And this technique worked for a former partner of mine.

Speak with the lawyers in the case ahead of you. You may find that they are only $10,000 apart on a settlement but, for whatever reason, neither side will budge from their number. After conferring with your client for permission, offer to pay the plaintiff that $10,000 to settle their case. It will cost your client the $10,000, but the client will save $40,000 plus the additional cost for preparing to try the case again.

This won't work in every situation. But I bet somewhere, some time, when you try this, your client will think you're a genius – that you're an "out-of-the-box lawyer.

How an attorney turned his client's alcohol and drug addiction into an advantage – how he turned lemons into lemonade

One "out-of-the-box" technique for solving problems is to see if you can turn lemons into lemonade. Here's one example of how an attorney turned what looked like problems that would kill his client's tobacco suit into the client's advantage.

Michael J. Piuze's client was suing for his cancer that started out as lung cancer and had metastasized to his spine and then to his brain. Piuze knew that the defense would be arguing that the plaintiff not only had been an alcoholic, but had also become addicted to drugs. How did this plaintiff attorney overcome the defense and use it to his advantage? How did he turn lemons into lemonade? Take a minute (or more) and think about how you would handle those addictions and see if there is any way, knowing the lemonade technique, that you could have turned them to your advantage.

Here's what Piuze argued: the client had been addicted to heroin and then to methadone, but he was able to become drug free. He had also suffered from alcoholism, but he had managed to become sober. However, his addiction to tobacco was stronger than his addiction to alcohol and drugs, and, no matter how he tried to quit, and his attempts to quit included using both hypnosis and Smokers Anonymous, he couldn't kick his nicotine addiction.

The result of the suit: a jury verdict for $5.54 million compensatory and $3 billion punitive damages. The trial judge reduced the punitive award to $100 million, but allowed the compensatory award to remain.

The case is now on appeal. The case is reported in Lawyers Weekly USA, August 20, 2001, January 7, 2002 and January 6, 2003.

If any of you readers have had a similar situation in which you not only have overcome an obstacle, but have turned it to your advantage, I would appreciate your e-mailing your out-of-the box solution to me.

Do you want to find an expert – cheaply? Let a searching expert do the searching for you

Just about anyone who is reading this blawg has used Google. But did you know that Google also has a service called answers.google.com? In the past, you may have paid an expert-finding service $100, $200, or even $1,000. If you were satisfied, it could have been worth the money. But you may not have been satisfied. Or you may just want to see if there is a cheaper way to find a good expert.

Answers.google.com may be your answer. (No pun intended.) Answers allows anyone to ask virtually any question. Google has over 500 individuals whom they have tested for their web searching abilities and are permitted to answer questions. If, for instance, you are looking for an expert on a special field in psychology, you can put that question out to answers.

The fascinating part about this is that you set how much you are willing to pay for an answer. Let's say you are willing to pay $50 for an answer (the minimum fee is $2.50, so you could even try that!). You give Google your credit card and your e-mail address. But you are protected from spam because your e-mail address is not posted on answers. Instead, you create your own alias – your own nom de computer. Although all of the prior searches are searchable, only your nom de computer is searchable. Your real name isn't.

I have enjoyed just browsing past questions on answers to see what's been coming up. I found, for instance, an attorney who uses the alias of AlexanderHilton (no space betwwen the first and second names). (I assume he's an attorney and that the name is an alias).

If you go on answers and search for AlexanderHilton (again, no spaces), you will see some of his prior searches. For instance, on March 7, 2003, he put out a request for "two or three highly credentialed and respected psychologists who we may retain as expert witnesses in the areas of parental alienation syndrome and child abuse." He noted that they had to be both renowned in their field and based in the United States. About two hours after he entered his search he had his answers. A searcher answered his question and one of the experts was even the physician who had first coined the phrase "parental alienation syndrome."

Answers allows people who ask the questions to rank the answers from one to five stars, Hilton rated the answer five stars. And how much did he pay for that search and information? $35.00! That's right. He paid thirty-five dollars for the answer! And Google says that if you don't like the answer, you don't have to pay for it. (No, I don't get a commission from Google. I just think it's a real out-of-the box tool for finding lots of information.)