Front MatterSource: Litigation, Vol. 34, No. 4, TRIALS, TACTICS, TOOLS (Summer 2008)Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760665 .

Accessed: 14/06/2014 04:25

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 185.2.32.14 on Sat, 14 Jun 2014 04:25:21 AMAll use subject to JSTOR Terms and Conditions

00

The Journal of the Section of Litigation American Bar Association

Vol. 34 No. 4 Summer 2008

OVA

Tral, atis,Tol

This content downloaded from 185.2.32.14 on Sat, 14 Jun 2014 04:25:21 AMAll use subject to JSTOR Terms and Conditions

Table of Contents Litigation Summer 2008 Volume 34 Number 4

Opening Statement-Robert L. Rothman-1

From the Bench: Welcome to the 21st Century Courtroom-Honorable Mark W. Bennett ? 3

Trial Balloon: Federal Litigation? Where Did It Go Off Track?-Gregory P. Joseph-5

TRIALS, TACTICS, TOOLS Lessons for Trial Lawyers from Lincoln's Second

Inaugural Address-Patrick A. Malone-8

Copyright Claims: Not Just for Artists Anymore-Edward J. Naughton-12

Representing the Non-Party Deponent Who Cares-Philip J. Katauskas-18

Making Joint Defense Agreements Work-Thomas G. Pasternak and R. David Donoghue-26

Using Presuit Discovery to Overcome Barriers to the Courthouse--Lonny Hoffman-31

Weathering the Storm-Theodore M. Grossman-36

Rule 16, the Litigator's Forgotten Ally?-Joel B. Rosen and R. Monica Hennessy-42

Mediating in the Appellate Court-Mark D. DeBofsky-47

Narrative, the Essential Trial Strategy-Stephanie Kane-52

Legal Lore: Edgar Lee Masters, Illinois Lawyer and Poet Part Two: Apollo Cleaning the Sewers-Joseph A. Johnston-59

Sidebar: Hubris-Kenneth P. Nolan-63

Advance Sheet-Robert E. Shapiro-65

Litigator's Bookshelf: Business and Commercial Litigation in Federal Courts, Second Edition -Dennis J. Drasco-73

Litigator's Bookshelf: Protecting Moscow from the Soviets-Robert and

Marilyn Aitken-74

Literary Trials: The Scarlet Letters-Louis Auchincloss-76

Litigation (ISSN 0097-9813) is copyright ? 2008 by the American Bar Association, all rights reserved. Litigation is published quarterly by the Section of Litigation, American Bar Association, 321 N. Clark St., Chicago, IL 60654. Periodical postage paid at Chicago, IL, and additional mailing offices. Postmaster: Send address changes to Service Center, ABA, 321 N. Clark St., Chicago, IL 60654. Annual subscription price for Section of Litigation members is $10 and is included in Section membership dues. Any mem? ber of the ABA is eligible for Section membership. Institutions and individuals not eligible for ABA membership may subscribe for $140 per year. Individual copies are $40, plus postage and handling, and are available from the ABA Service Center at 800/285-2221. Issues published more than two years ago are available from William S. Hein & Co., www.wshein.com, 800/828-7571.

Material contained herein does not necessarily represent the position of the American Bar Association or the Section of Litigation. All material in Litigation is protected by copyright. No part of the text or images may be reproduced; stored in a retrieval system; or transmitted in any form or by any means, electronic, mechanical, photocopy, recording, or otherwise, without the prior and express permission of the publisher.

For permission to reprint articles, please go to www.abanet.org/policy/reprints.html.

Cover and article illustrations by W. B. Park. For lithographic prints of Litigation cover art, contact Park-Art Studio, 107 Pine Needle Lane,

Altamonte Springs, FL 32714 Website: wbpark.com E-mail: wpark@cfl.rr.com Telephone: 407/644-1553

This content downloaded from 185.2.32.14 on Sat, 14 Jun 2014 04:25:21 AMAll use subject to JSTOR Terms and Conditions

Trials, Tactics, Tools Litigation is often compared to a game, or even to war? fare. Whatever the analogy, the goal is always the same: to win at trial or to gain an advantage that makes trial

unnecessary, either by winning a dispositive motion or

negotiating a satisfactory settlement. Even where the goal is settlement, skillful litigators know that the best way to achieve a good one is to be ready for trial and to be sure

your adversary knows it. This issue explores some of the tactics and tools that lawyers use to prepare effectively for trial.

? The outcome of a trial can depend as much on the

lawyer's ability to persuade as on the quality of the evidence. Yet many lawyers rarely see a trial and have little opportunity to hone their rhetorical skills

by watching great trial lawyers. Patrick A. Malone

helps fill this gap by mining the lessons in Abraham Lincoln's Second Inaugural Address to show us how structure, language, and rhythm combine to create

persuasive power.

? Alternative pleading can enhance a plaintiffs abil?

ity to get immediate results or a maximum potential recovery. Edward Naughton shows how to use copy? right law to gain significant advantages in what would otherwise be a garden-variety commercial dispute, and offers some tips for defense counsel in responding to these claims.

? Litigators are trained to prepare both parties and non

parties for depositions, but what about the non-party who, far from being indifferent to the case, has a real stake in the outcome? Philip J. Katauskas explores some of the unique issues involved in representing such a deponent.

? Joint defense agreements provide both cost savings and strategic advantages by allowing defense counsel

to share tasks and information. These arrangements, however, are not risk-free. Thomas G. Pasternak and R. David Donoghue explore some of the legal and

practical problems that may arise and provide guid? ance in navigating them.

? Bell Atlantic v. Twombly has increased the pressure to

plead sufficient facts in a complaint. But what if criti? cal information and documents are under the complete control of the defendant? Lonny Hoffman discusses the use of presuit discovery to solve this problem.

? Sometimes, despite the most thorough trial prepara? tion, something unexpected?and awful?happens in the middle of trial. Theodore M. Grossman describes some of these nightmare scenarios and offers strategies for dealing with them.

? Rules governing case management and procedure may be mundane, but knowing how to use these rules

effectively can make the difference between winning and losing. Joel B. Rosen and R. Monica Hennessy reveal how Rule 16 can serve as a tool to gain tactical

advantages that can change the course of a case.

? Mark D. DeBofsky explores the growing trend toward mediation on appeal and shows how both appellants and appellees, with proper preparation, can obtain the maximum benefit from it.

? It is a truism that all great trial lawyers are good storytellers. Yet legal training does not include the

storyteller's art. Lawyer and novelist Stephanie Kane teaches us how to use the narrative tools of the novelist to develop trial themes and weave the evidence into a

story that moves and persuades.

?Joyce S. Meyers

Litigation Summer 2008 Volume 34 Number 4

This content downloaded from 185.2.32.14 on Sat, 14 Jun 2014 04:25:21 AMAll use subject to JSTOR Terms and Conditions