Esquire Viewpoint: Getting you ready for what's next in litigation

The world of litigation is rapidly evolving. Learn how to get more from your investments, improve outcomes, and seize the opportunities inherent in change.

Drive Better Outcomes

6 Things Court Reporters Wish You Would Do to Improve the Deposition Record

Everyone in the room wants a deposition to go smoothly. It’s more productive for you, less stressful for the witnesses, and easier for the court reporters to get the job done. However, you may be unaware of simple things you can do to facilitate making a good record and increase both clarity and efficiency. Here are six things your court reporter wishes you’d do.

A legal team participating in a remote deposition. Drive Better Outcomes

Four Best Practices for Remote Depositions

According to a recent Thomson Reuters report on trends and benchmarking, one of the highest priorities for firms and legal departments in 2018 was controlling litigation costs. Many organizations see remote depositions as a cost-effective, efficient strategy for achieving this objective and streamlining the discovery process. However, your task doesn’t end when you make the […]

Los Angeles direction sign on 101 freeway southbound at sunset. Southern California, USA Navigate Litigation 2.0

The Battle to End the “SoCal Stip”

Like most states, California has established a legal procedure for the signing and distribution of depositions. Once upon a time, that procedure was cumbersome—particularly for those in traffic-heavy areas of Southern California like Los Angeles. Witnesses were required to visit the court reporter’s office to review and sign the original deposition transcript.

Drive Better Outcomes

Successful Techniques for Deposing a Physician Defendant

Medical malpractice litigation is extremely complex and involves highly technical information and analysis, so significant preparation and a thorough understanding of best practices and successful techniques are key.

Drive Better Outcomes

Court Reporting Ethics 101

Many different professions have codes of ethics that regulate the conduct of those in the industry. Court reporting is no different, and reporters must comply with the ethical rules to ensure they do not adversely affect the outcome of a legal case.

attorneys and witnesses participating in a deposition videoconference Drive Better Outcomes

To Travel or Not to Travel? When to Consider a Remote Deposition

Many law firms conduct remote depositions by videoconference. Even if a law firm is used to conducting depositions in the traditional manner and wary of videoconferencing, there are some situations in which it does not make sense to travel for a deposition.

Videographer recording a deposition Drive Better Outcomes

Four Benefits of Professional Videography

In the context of depositions, nonverbal communication can have a significant impact on the perceived veracity, competence, and acumen of a witness. Employing professional videography in a deposition can preserve the record in a way that a paper transcript simply cannot.

lawyers attending a remote deposition Navigate Litigation 2.0

What’s Next in Depositions

Lawyers have been conducting depositions since the 19th century, and for decades, the process remained relatively unchanged. In recent years, however, deposition advancements in telecommunications, online security, and other areas have changed what’s possible in the practice of law.

a lawyer preparing a witness for a 30(b)(6) deposition Drive Better Outcomes

Common Mistakes in 30(b)(6) Witness Preparation

The job of preparing a witness for a 30(b)(6) deposition typically falls on an organization’s counsel. Here are some of the common mistakes that counsel should avoid during 30(b)(6) deposition witness preparation.

Drive Better Outcomes

Terrie Campbell: Success Through Cohesive Leadership

With a cohesive leadership team driving the business, Esquire is in a period of acceleration—we are doing more and doing it faster. We’ve improved our efficiency without losing focus on increasing our revenue and profitability.

Drive Better Outcomes

Jim Ballowe : Better Outcomes Through Better Technology

Innovation has no limits—there’s always room for our user experience to be better tomorrow than it is today. After a productive 2018 and a promising start to this year, I’m confident we can make the customer experience even better in 2019.

Drive Better Outcomes

Ron Carey: Focusing on Clients for Greater Success

I’m proud to say these teams grew business in every channel throughout 2018, setting a new record for Esquire’s revenue by the end of the year. This growth was achieved by aligning teams under a unified strategy with a clear vision and focused go-to-market approach.

Drive Better Outcomes

Growing Corporate Relationships

By the end of 2018, we developed strong relationships with more insurance carriers and corporations than in any other year during my tenure, growing our client base by 15%. Because of both this accomplishment and a 10% increase in revenue from the previous year, we entered 2019 with our confidence at an all-time high.

Drive Better Outcomes

Sara Quick: Navigating New Responsibilities

As the new year begins, I would like to recognize the profound successes of Esquire’s 2018 company performance, the hard work and dedication of Esquire’s employees, and our valued partnerships with our loyal court reporters. In particular, I am incredibly proud of the outstanding performance of the finance team members during a year of growth and change.

Drive Better Outcomes

Avi Stadler: Making Esquire a Rewarding Place to Work

I am proud to announce a year of record success for Esquire in 2018. Using a consistent approach to problems, Esquire met and exceeded its financial targets and laid the foundation for unprecedented growth.

a potential juror filling out a pretrial survey poll on her laptop Navigate Litigation 2.0

When Is Polling Permissible?

Pretrial polls of potential jurors are not per se prohibited. When conducted properly, polls can allow counsel to test arguments, theories of the case, and potential testimony before trial. Cochairs of the Section of Litigation’s Ethics & Professionalism Committee crafted a guideline for lawyers on how to carefully administer pretrial polls to avoid sanctions.

lawyers discussing representation overlap and how it might lead to imputed disqualification Navigate Litigation 2.0

Imputed Disqualification: Challenges of Suing Former Clients

This case specifically highlights the importance of conflict checks before beginning litigation. Section leaders from the Ethics & Professionalism Committee of the ABA Section of Litigation warn that this is an issue that needs to be explored with the client at the very outset.

attorney meeting with a client to give notice of withdrawal of representation Navigate Litigation 2.0

Termination of Representation and the Retention of Files

A court ruling recently solidified the majority perspective that attorneys have an ethical duty to turn over and surrender their entire file to clients upon termination of representation. It is important for litigators to be cautious and aware of their individual jurisdiction’s interpretation of Model Rule 1.16 to avoid sanctions.

surgeon operating on a patient that needs a hybrid medical device Navigate Litigation 2.0

Key Takeaways from Recent Hybrid Medical Device Cases

The future of medical devices and the current uses of hybrid medical devices affects the way lawyers defend clients in product liability cases. As the future of medical devices continues to develop, lawyers must devise strategies to avoid preemption when dealing with lawsuits involving Class III medical devices.

lawyer presenting evidence to a jury Drive Better Outcomes

The Role Evidence Plays in Avoiding Sanctions

It is the job of the attorney or firm to confirm a claim’s ability to be upheld prior to the proceedings.  In order to avoid sanctions, the evidence specific to the case must be carefully, meticulously, and factually analyzed prior to filing the suit.

patient in hospital who was injured due to medical malpractice Drive Better Outcomes

Tips for Better Outcomes in Medical Negligence Cases

When navigating medical malpractice litigation, lawyers will benefit from gathering all necessary evidence related to the standard of care specific to the case beforehand in order to explicitly testify as to how it was broken from negligent practices.

executive tweeting business information Build the Bottom Line

The Case of Elon Musk and the SEC: Re-examining Corporate Fraud

It’s important to understand the appropriate model rules and due diligence procedures when representing clients who may have committed a fraudulent crime. Musk’s case reminds lawyers why abiding by rules outlined by the SEC is necessary.

lawyer looking at a privileged and confidential email Navigate Litigation 2.0

Communications Between Clients and Adversaries May Cause Ethical Dilemmas

Copying clients on emails sent to opposing counsel, whether through “cc” or “bcc” commands, may have serious consequences affecting attorney client privileges. While communicating with parties is necessary for driving litigation forward, lawyers must adopt responsible email strategies to avoid breaching attorney-client privileges.

Lawyer learning about a new software in her office Navigate Litigation 2.0

This Is How to Competently Operate Cloud Computing Systems

ABA Model Rule 1.1 states that a lawyer is obliged to provide competent representation through the appropriate legal knowledge, skill, thoroughness, and preparation — but how does this apply in a world of changing technological developments?

a lawyer expresses frustration with her new computer Drive Better Outcomes

Competent Representation Requires Mastery of Email

As technology changes, so do the rules governing litigation. Continuing to learn about best practices is necessary in an age of rapid technological development, and staying abreast with the latest changes gives any lawyer an advantage in conducting his or her case.

judge and lawyer discussing Model Rule 1.9 Navigate Litigation 2.0

Meeting the Objective Analysis Standard When Representing Former Clients

Appearance-of-impropriety standards are no longer sufficient in determining when former clients may or may not disqualify counsel. Judiciary officials argued lawyers must abide by more objective standards as outlined by Model Rule 1.9 Duties to Former Clients when conducting litigation with former clients.

man in a hurry traveling to his deposition location Navigate Litigation 2.0

Reviewing the Rules of the Road: Where to Conduct a Deposition

Conducting a deposition is a crucial part of the litigation process. While the rules for administering a deposition clearly define when and how a deposition should be conducted, they remain less certain about the deposition’s location.

A third party public relations strategist consulting a group of lawyers Drive Better Outcomes

When to Rely on PR Strategy: How Far is Too Far?

Litigators will want to keep a close eye on all matters of communication and be careful not to assume privileges automatically exists between a client and third parties. If third parties don’t provide the necessary information and legal advice for the client’s case, that information will not remain privileged and may come under scrutiny by court officials and opposing parties.

litigators looking over appeal for consolidated case Navigate Litigation 2.0

Keeping Track of Consolidated Cases

In a decision made by the Supreme Court in the Fall of 2017, justices announced independent cause for appeal by a party in consolidated cases cannot be denied. Their resolution is a reminder for lawyers and officials to expect appeals by parties in consolidated cases and to take the necessary steps to enter into the appeal process.

Build the Bottom Line

Understanding Corporate Monitoring and Fines

Hiring third parties to conduct international business is appealing, but companies should consider the risks of working with third parties before they find themselves in trouble – or a multimillion-dollar lawsuit.

attorneys speaking in deposition center about ethics Drive Better Outcomes

Is Joint Representation of Two Clients in a Deposition Okay?

Many questions arise as to how one should proceed with a deposition in which two clients provide testimony for the same case. Before agreeing to joint defense, it’s important to consider all possible outcomes for the case and how you should proceed – or if you should proceed at all.

man with daughter creating invention at worktable Drive Better Outcomes

4 Things You Must Know about AIA Trial Depositions

Approaching an AIA trial deposition is starkly different from a standard litigation deposition, and there are 4 elements of AIA depositions that litigators must know to handle them appropriately.

attorney reading report from ai featured Build the Bottom Line

Will AI Help or Hurt Legal Professionals?

When an industry is confronted with a new technology that seeks to improve the efficiency of tasks, the workers of that industry are naturally inclined to feel concerned about how that technology may disrupt the way the industry runs. Currently, artificial intelligence (AI) in litigation is transforming the profession through automation of such time-consuming tasks […]

activists cleaning up in the grass with green shirts Drive Better Outcomes

Activists Bring Climate Change Policy to the Courtroom

When those parties and companies refuse to make voluntary changes to improve such climate change factors as pollution output and planet-harming resource gathering methods, activists looking to protect the planet have no other choice but to take them to court.

scientist developing an invention that will be patented Navigate Litigation 2.0

U.S. IPR Patent Review Process Legality Has Been Upheld

Houston-based oilfield services company Oil States International, Inc. challenged the legality of inter partes review (IPR), a patent review process that allows the Patent Trial and Appeal Board (PTAB) to hold hearings with patent challengers and patent holders to determine the validity of a patent. The company argued that IPR violated the right of defendants […]

business person looking up at tall glass-windowed building Navigate Litigation 2.0

The Emerging Prevalence of Commercial Disparagement

In a world in which social media gives customer and companies the opportunity to say anything about one another instantly, there is a heightened danger of violating the commercial disparagement tort.

people discussing details from a paper Drive Better Outcomes

Why Does Class-Action Defense Spending Continue to Rise?

The $2.24 billion class-action market has been the driving force behind some of today’s most helpful consumer-side changes. As the momentum of positive change accelerates, so too will the total cost of class-action defense.

Drive Better Outcomes

AOB lawsuits compound agony of Florida hurricanes

Assignment of benefits started out as a convenience for Florida residents [but]…has become a vehicle for fraud and claim build-up by some vendors.”

State Farm Florida spokesperson Michal Brower via Insurance Journal.

Build the Bottom Line

Security perils continue to haunt law firms and clients

Law firms are investing more money in information security these days because their clients are effectively demanding it.

More than 2 in 5 lawyers (41 percent) recently interviewed by Robert Half Legal were planning to spend more on information security-related tools and services in the next 12 months.

Navigate Litigation 2.0

Online accessibility issues fuel new ADA litigation

The Americans with Disabilities Act has made public accommodations like retail stores more accessible to people with disabilities. Which raises the question – would those retail stores’ websites be considered public accommodations?

Navigate Litigation 2.0

Climate goes to court

The pace of climate litigation is anything but glacial. We’ve seen a flurry of important developments in just the 90 days since we first blogged about the new climate litigation movement. Plaintiffs are pressuring oil companies for compensation and governments to fight climate change.

Build the Bottom Line

Drone litigation takes flight

Drones are soaring in popularity and, given the cloudy legal atmosphere, have injected jet fuel into aviation law practices.

What are the rules for flying them? Who makes the rules? And what if you feel threatened by a drone?

Navigate Litigation 2.0

I won the lottery. Does anyone have to know?

Three intriguing new cases related to privacy, legal and personal, just cropped up: A court deals another blow to Facebook’s face-recognition program. A landowner fights to keep spy cameras and border patrollers off his ranch. And a lottery winner tries to stay anonymous. Lottery winner won’t identify herself Can you blame the lottery winner? She […]

Navigate Litigation 2.0

What’s next in malpractice litigation?

Malpractice litigation isn’t what it used to be. Successful medical malpractice claims have been falling in number over recent decades. The trend could shift, however, if litigators gravitate toward new, tech-related frontiers of the practice.

Navigate Litigation 2.0

Weed and robots to alter liability landscape

Sale of recreational cannabis is legal in a handful of states with more expected to follow, raising new product liability questions for sellers, regulators, insurers, and litigators. For instance, should cannabis be treated like liquor or be considered an unreasonably dangerous product?

Drive Better Outcomes

When graffiti is art, whitewash is a weapon

Plaintiff attorneys: you might want to reconsider your definition of art.

Defense attorneys: be careful what your clients demolish, and how they demolish it.

Artists: your community just got bigger.

Navigate Litigation 2.0

Why secrecy matters in product liability

Confidentiality may be a non-negotiable condition for a victim to secure a settlement, so granting it may be your first job if you’re a plaintiff attorney. And confidentiality clearly protects manufacturers’ reputations, so obtaining a protective order may be your first job as a defense attorney.

Navigate Litigation 2.0

Can litigation halt the opioid crisis?

Numerous claims have been filed across the country by cities (including New York), counties and states against makers and distributors of prescription painkillers. Delaware, for example, just became at least the 15th state to sue, according to Reuters. The lawsuit, filed in a state court, targets a number of drug makers, distributors and retailers.

Navigate Litigation 2.0

New: a climate litigation movement

Climate-related efforts have spread from the science community to politicians to regulators to activists – and now, increasingly, the courts. As of last May, the United States had 654 climate change litigation cases – almost three times that of the rest of the world combined – and the number of countries in which climate change […]

Drive Better Outcomes

What’s new, what to expect in Class-action

What do fashion, the Supreme Court, and GMOs have in common? Class-action litigation. Here are some recent noteworthy developments in the category with implications for 2018.

Navigate Litigation 2.0

Let’s clear up your cloud-related obligations

Got responsibilities? Of course you do, lots of them.

Competent lawyering means knowing the law, honing skills, and preparing thoroughly. But that’s just in reference to your cases. A whole other set of responsibilities is cropping up around the technologies you or your firm might use to do your work.

Navigate Litigation 2.0

2018 Will Bring Smarter, Data-Driven Law

A new year prods us to stop reflecting and start anticipating, so let’s get right to 2018’s crystal ball. Particularly intriguing are prognostications around data, artificial intelligence, analytics and machine learning – terms that overlap.

Navigate Litigation 2.0

Internet of Things will spawn lots of things to litigate

The Internet of Things, among a handful of new technologies transforming the way we live, is also shaping up to be a ripe area for litigation. Expect to see claims around IoT security, privacy, data ownership and profit-sharing.

Drive Better Outcomes

Our Holiday Wish List for You

Law never takes a vacation, but legal professionals do. Or should if they want to stay fresh, productive and familiar to their families.

So as we enter the time of year reserved for loved ones, here’s Esquire’s Holiday Wish List for you, our clients.

Navigate Litigation 2.0

Blockchain, the next litigation magnet

Blockchain – the hot new distributed ledger technology that underlies cryptocurrency – is also shaping up to be a rollicking arena for intellectual property litigation.

Drive Better Outcomes

Construction defects: who decides whether to sue?

An interesting experiment is under way in Colorado.

Policy makers have changed the rules of construction defect litigation in hopes of reengineering the housing mix. Condo development has essentially stalled despite the state’s status as a millennial magnet.

Navigate Litigation 2.0

Litigation finance: an emerging trend

Litigation finance, a term that didn’t resonate with most of us five years ago, now signifies a rapidly growing way that legal bills are getting paid.

Industry watchers are examining the potential of the funding instrument to change the way litigation happens, support the growth of innovative firms, and enrich investors. Also being tracked are the risks to the emerging practice.

Drive Better Outcomes

Trick, treat, or travesty? Tales from the legal crypt

It’s fun to be spooked when it’s candy-hunting kids in costumes but kind of creepy if you find yourself in a twisted legal situation. To mark the holiday, here’s a smattering silly or strange stories from our world:

Build the Bottom Line

Six ways to unleash your inner rainmaker

The internet continues to dismantle institutions. Two decades ago, consumers would buy everything they needed from one or two department stores. Then the internet came along, and that became the store: Consumers searched first for the product they wanted, hardly caring at all which retailer it came from. If it came from Sears, great. Amazon? That was great, too.

Drive Better Outcomes

Transcripts make great teachers

My first deposition seemed to go pretty well. It was 17 years ago. I left the room feeling good about how I handled a hostile witness. But when I read through the transcript a few days later, I cringed a bit. I hadn’t done quite as well as I initially thought. The questions I asked […]

Navigate Litigation 2.0

Quiz: Are you a legal pad lawyer or an iPad lawyer?

It’s been more than a century since the invention of the legal pad, a staple of this profession (and, incidentally, Seinfeld’s canvas of choice for four decades).

Are you a legal pad lawyer? Or an iPad lawyer?

Drive Better Outcomes

Tackling shared challenges of firms & clients

With 40,000 members, the CLM is the largest insurance industry professional trade association for claims and litigation professionals. We are the consulting arm of the CLM, and we advise litigation and claim executives, law firms, and service and technology companies on how to make their businesses stronger.

Build the Bottom Line

National deposition services contracts: good for law firms, too

Corporate legal departments that hire a nationwide company to provide deposition services for their law firms may be requiring some of their firms to adapt to new ways of doing business. However, many law firms find that these types of arrangements have advantages.

Navigate Litigation 2.0

Five litigation headaches I could have avoided

Much has changed since I left full-time litigation. Back then, and we’re talking fewer than five years ago (lest I sound like an old man lamenting my two-way uphill walk to school), nobody I knew was using the deposition technology that’s available today. Almost everything happened in person, and the work product was usually trapped in paper.

Navigate Litigation 2.0

To protect clients, look beyond your corporate network

Unfortunately, cybercriminals see law departments and firms as enticing targets: They are replete with financial data, personal information (such as the plaintiff registry in a class action), and the kind of confidential information that tips multimillion-dollar cases. As the ABA (PDF) put it: Law firms are targets for two general reasons: (1) they obtain, store […]

Build the Bottom Line

Why Pro Bono Work Makes You a Better Attorney (and a Better Person)

Some of the most impactful moments of my career are tied to the pro bono work I’ve done. Without pro bono, it’s unlikely that I would’ve had the opportunity to participate in a Supreme Court case (PDF). But as thrilling as that was, it was the pro bono representation of a widow who had lost faith in the legal system that sticks out as a highlight of my career.

Build the Bottom Line

Seven ways to keep corporate counsel happy

As my company’s general counsel, I depend heavily on my outside law firms and lawyers. I value these relationships – and my lawyers do, too, since I pay their bills. I’m writing this post to help outside lawyers keep inside counsel happy.

Drive Better Outcomes

Avoid (or at least survive) bet-the-company litigation

We recently blogged about the rapid growth of bet-the-company litigation. Short version of that post: the number of companies involved in such cases is quadrupling. If you’re corporate counsel, you want to do your best to avoid such risky, resource-devouring litigation, and survive it when it’s inevitable.

Drive Better Outcomes

Why does consolidation stop with your law firms?

Corporate law departments and insurance claims organizations continue to consolidate their outside law firms in order to control spending, streamline processes and improve performance. But why do these organizations often restrict their consolidation effort to the law firms?

Drive Better Outcomes

What’s driving bet-the-company litigation?

Although corporate litigation spending is flat, the number of companies managing “bet-the-company” litigation has quadrupled in the last two years, posing new challenges to corporate counsel, outside counsel and litigators.

Bet-the-company litigation can be any legal action that threatens the existence of the company or major line of business, whether or not the case goes to trial.

Navigate Litigation 2.0

Seize the power in your next deposition

I blogged the other day on why you’d want to, or need to, video-record a deposition: a witness being out of the country, outside subpoena power, sick, or otherwise unavailable. Or maybe a key witness for your side is better on camera than in print. (On the flip side, you’d want to video-record opposing witnesses who discredit themselves on camera).

Drive Better Outcomes

Expert witnesses, your quintessential storytellers

Verdicts often come down to who tells the better story. As a litigator, you sometimes need help telling your story, so you turn to an expert witness.

When you work with experts, are you getting everything you need from them? Many lawyers aren’t.

Navigate Litigation 2.0

If only I’d had video…

I was a big-firm litigator for 14 years before joining Esquire as general counsel. I loved the chess match, the battle, and pinning opposing witnesses down.

But on one particular day, in a complex securities arbitration, I found myself sitting in the witness chair.

Drive Better Outcomes

Multigenerational approach drives growth in law firms

The aging workforce poses risks for every business – and law firms are hardly an exception. The vast majority of managing partners are baby boomers, age 52 to 71. Are you prepared for upcoming decades? It’s not easy.

Drive Better Outcomes

Don’t complicate complex litigation

Complex litigation. It’s a synonym for high stress, and it’s daunting for law firms, lawyers and the people who support them. What exactly does the term complex litigation mean? It generally signifies a case with high stakes, complicated procedures, multiple parties, multiple jurisdictions, media scrutiny, lengthy discovery and big investments in time and money. Class […]

Navigate Litigation 2.0

The case for video depositions

The law is made up of words, documents and abstractions. Many of us love this stuff. And we’re good at it. But it can put the rest of the world to sleep.

Take jurors, who live normal lives steeped in TV and

Build the Bottom Line

Let’s (re)think depositions

The world has gone digital – well, most of the world has. We’ve digitized the way we work, communicate, analyze, predict, sell and buy. The practice of law has gone digital as well. There’s electronic case research, court filings, discovery, records management, video testimony and more.

So why do depositions still have to be so paper-intensive?

Build the Bottom Line

Who knew? A weapon to tackle ALAE, ULAE and loss cost

We don’t usually traffic in alphabet soup, but we know insurance defense, and we know how important each of these acronyms is to your business. They’re major costs you want to reduce. If you’re a claims exec, you know exactly what I’m talking about. If you’re new in the industry, let me explain.

Drive Better Outcomes

How to hone young lawyers’ deposition skills

It’s the same in law as it is in sports: great performances build on good practice.

For young attorneys, though, opportunities to practice depositions can be scarce, especially in real-life settings. That’s because litigation is increasingly focused on bet-the-company matters, and in those matters, senior litigators take center stage.