7 Questions with Bob Langdon of Langdon Emison

August 25, 2012

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Spend a few minutes with Robert (Bob) Langdon and you’ll see why he is one of the best trial attorneys in the United States. He’s confident, outgoing, and smart. He’s a past-President of the Missouri Association of Trial Attorneys, a past member of the Board of Governors of the American Trial Lawyers Association, and one of eight lawyers who spearheaded the case against Ford and Firestone for Ford Explorer rollover cases. Even with all of Bob’s success, he was happy to answer a few questions of an aspiring trial attorney.

1. How did you get started doing trial work?

I started out working in general practice. We had a couple of car wreck cases and we got good results. Because of the good results, more people called us and we got more clients.

2. Graduating law school, did you know that you wanted to do trial work?

Yes. I worked for a law firm in Columbia, MO at the time called Sapwood, Danaphan, Ore that did PI work. Working for them I knew that’s what I wanted to do.

3. Most important Missouri Tort Case?

There are so many. They’re all important. Joint and Several Liability and Comparative Fault are both really important.

4. How do you get in the courtroom as a young attorney? Prosecutor’s office or public defender?

Personally, I don’t think the experience in criminal law translates into personal injury very well. I think you are better off trying to get PI cases. You may start off taking smaller cases, $10,000 or $20,000 cases and actually trying them. That’s how I think you get in the courtroom when you’re young.

5. Thoughts on Marketing?

Better off going into the blogging world than running TV advertisements. [MM: I’m trying to put your advice to work.]

6. Your firm uses a lot of focus groups. Any suggestions on how to learn how to conduct an effective focus group?

You go to Missouri Association of Trial Attorneys or American Association of Justice programs and at those programs they will show you how to run your own focus group. You can run them for as little as $300-$400 or you can hire someone to do them for $10,000. Once you learn, you can do it as well as they can do it.

Sometimes we’ll have our jury consultant come in just to help us theme a case. We’ll run our own focus groups on the liability and sometimes on damages. We’ve even run them with our experts just to see what the focus group thinks. That is, we take the video from the experts’ depositions and show them to the focus group. There are a lot of things you can do. You can learn a lot from going to meaningful CLEs.

7. What pitfalls do you see young trial attorneys make as they try to make a name for themselves?

I think the biggest pitfall is that they are not willing to put in the time. It takes time. Being a trial lawyer takes a lot of time. It’s not a 9 to 5 job. An example of not putting in the time is not preparing witnesses. I’ve seen lawyers put their client on the stand without preparing them. We usually spend two or three sessions, we have handout materials, and we have videos to prepare our clients. We do a lot to prepare our clients to testify. The same goes for preparing experts. If you don’t prepare your experts for what’s coming then you are just playing with fire. Those are pitfalls I see, attorneys just not putting in the time needed to do this time of work.

 

6 Questions with Brett A. Emison of Langdon Emison

August 18, 2012

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Brett Emison was kind enough to take a few minutes to answer 6 questions on becoming a trial attorney. He works at Langdon & Emison and is an active blogger on the Injury Board.

 1. How did you decide that you wanted to do trial work?

Growing up I had to decide if I wanted to do more science and medicine or history and law. When I was a sophomore in high school my dad (Kent Emison) and Bob Langdon were just getting started trying complex catastrophic injury cases. They had a case against General Motors called Baker v. GM. I watched them try this case against some of the very best lawyers in the country and really fight for clients who lost their mom in a vehicle fire. They got a really nice verdict, had the verdict overturned on appeal, and took it to the United States Supreme Court. I became really interested in doing that type of intellectually rewarding work, helping families that need help, and just really loving what I do. After law school I spent a year doing corporate litigation and just did not find that nearly as rewarding as helping real people.

 2. I’ve read some Rick Friedman and David Ball. I’ve listened to Gerry Spence discuss voir dire. I find them all very interesting. Do you have any experts that you recommend?

We’ve used Jay Burke out of Florida to help with jury selection. I’ve met and talked with David Ball. His philosophies are really good. Gerry Spence’s are also really good. I wouldn’t say there is a right way or a wrong way to pick a jury. The biggest thing is to find jurors who are willing to have an open mind and be fair. I never ask for a jury of 12 people who are automatically on my side. I just want to find a jury of 12 people who are going to give me a fair shake and listen to the evidence. I have enough confidence in my client and our cases that if I have a jury that’s going to give us a fair shot I’m convinced that we’ve got a case that can win.

      3. I’m curious about marketing. How do you get people in the door?

I would say that 95% of our business comes from referring lawyers who we know on a personal basis, who have heard about our cases, or who have seen us talk at a seminar.

More and more the internet is going to be a big way to attract clients. My philosophy is not to use the internet for advertising but instead to use it as a way of introducing myself. To use it as a way to engage other people on the internet who are looking for information. I never put “sell language” in my blog post. My name and number is on there. If someone wants to find me they can certainly find me. I’m more interested in reaching out to other people, engaging in conversation, and really having a place where the plaintiff’s side or the injured person’s side can have a voice against the millions and millions of dollars from the U.S. Chamber of Commerce and the tort reform association.

4.  Your firm uses a lot of focus groups. Tell me about that.

Focus groups are really important. Anytime you are really involved with something you tend to focus so much on the details and you want to make sure you don’t miss something. I find it very difficult to proofread my own writing. Because I wrote it sometimes my mind skips over errors because I knew what I meant to say. So it is important to get that independent look at your work so that you know what issues you are missing and what questions you need to answer.

We don’t take a case unless it is strong enough to win. In order to win a case you have to be able to communicate that effectively to the jury. It’s not manipulating the facts. It’s figuring out how to effectively communicate that to the jury so that they understand the real issues in the case.

 5. With new clients, how long do you tell them to expect the case will take?

I always tell my clients that there are no guarantees in the law. When you are putting your faith in 12 people I can’t promise you a result. The American justice system is the best justice system in the world. Our courts are overworked, they don’t always get the resources they need, and it takes time for the case to go through.

It also takes time to work up a case. With a complex case you may have 250,000 to 500,000 documents to go through and that takes time. You have witnesses to depose, experts to depose, discovery, and pre-trial motions. I would say 18-24 months is pretty typical but it all depends on the venue, what court you are in, what type of case you have.

 6. What advice do you have for an attorney just starting out?

Reach out to other people. Develop relationships with lawyers. Develop relationships with the clients that you have. Your reputation is your biggest asset. Your client should be your biggest advocate and your best referrer. Likewise with lawyers that you work with. There is no magic bullet. You have to work hard. You have to be good at what you do. You have to develop the relationships to grow your practice.

Summary Judgment in Missouri: Who, What, When, & How

March 18, 2012

My target audience with this post is law school students and young attorneys tackling a summary judgment for the first time. Experience has shown that seasoned attorneys often forget exactly what it was like to not know how to do something. This is my primer on summary judgment for novices like me. For a more in-depth review of the subject, see Judge H.J. Bush’s article titled “How to Write a Motion for Summary Judgment.”

What is Summary Judgment?
“Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute a right to judgment as a matter of law.” ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc. 1993).
In short, summary judgment is your chance to win your case before going to trial. Like a trial verdict, the judgment is final. However unlike a trial, summary judgment does not involve witnesses, experts, or a jury. Instead, the attorneys present their cases to the judge. The judge decides whether there is dispute of facts that should be decided at a future trial or if she can rule as a matter of law in one party’s favor today.
The standard for summary judgment is when there is “no genuine dispute as to the material facts.” A material fact is a fact that is required to establish your entitlement to recovery or right to an affirmative defense. In Missouri this can easily be established by referring to the Missouri Approved Jury Instructions (MAI).

“The record is viewed in the light most favorable to the non-movant.” ITT Commercial at 382. Thus summary judgment is not a place for credibility determinations as the non-moving party will always be given the benefit of the doubt. Id. For this reason, the majority of motions for summary judgment will fail. However, summary judgment is a very powerful tool for ending frivolous law suits.

Who can seek summary judgment?

Any party in a lawsuit. According to Rule 74.04 the movant is called the “claimant” and the responding party is the “defending party.”

When can you file a motion for summary judgment?
According to 74.04(a), the Claimant must wait 30 days after the commencement of an action before filing a motion for summary judgment. Any time after that, the claimant can file. According to 74.04(b), after a summary judgment has been sought against the “defending party,” it can respond with its own motion for summary judgment at any time.

Clearly the benefit of filing a motion for summary judgment early on in a case is to save money and to get the case resolved as quickly as possible.

Other timing considerations

The response in opposition to summary judgment is due within 30 days after service of a summary judgment motion. 74.04(c)(2). Reply briefs are due within 15 days after service of the response. 74.04(c)(3). Sur-reply in opposition is due within 15 days after service of the reply. 74.04(c)(4).

How do you file a motion for Summary Judgment?
Rule 74.04(c) provides the answer. A motion for summary judgment includes four parts. First, a statement of uncontroverted material facts. Second, a copy of all competent (admissible as if you were in court) evidence. Third, suggestions in support of motion for summary judgment. This is a separate legal memorandum explaining why summary judgment should be granted. And fourth, a certificate of service.
Typically, motions for summary judgment also include oral arguments. As mentioned above, this hearing consists of the attorney for each party outlining his argument, explaining the facts in light of the law on the subject, and answering the judge’s questions.

Jury Instructions – Missouri Approved Instructions (MAI) – Clean, Dirty, & Converse Instructions

February 11, 2012

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Missouri Supreme Court rule 70 outlines Missouri’s law on jury instructions. Jury instructions are all important as they provide the framework through which the jury will decide the case.

One aspect of Missouri law that I have come to appreciate is that Missouri has “Missouri Approved Insturctions” (MAI). These are jury instructions that have been approved by the Missouri Supreme Court.  In Missouri there are approved instructions for both civil and criminal cases. The court does not publish the civil MAIs. Instead they are available from private sources such as Westlaw.  Why do I like approved jury instructions? They ensure fairness across jurisdictions and time.
Failure to use an approved jury instruction when it is applicable is an error. According to Supreme Court Rule 70.02(c), the failure’s “prejudicial effect” is “to be judicially determined.” Missouri Appellate courts have little tolerance for failure to use MAI and this will often result in reversible error. Jury instructions have to be submitted and approved by the judge. These jury instructions are often referred to as “dirty jury instructions” because they include an annotation at the bottom of the page noting:  1) the MAI number, 2) the MAI Instruction Name, 3) the Party submitting the instruction. Here is a link to an example (Dirty Jury Instructions). Until the jury instructions are approved by the judge, the instructions numbers should remain blank.
Clean jury instructions are jury instructions that are prepared for the jury. The annotations at the bottom of the dirty jury instructions are removed.  Here is an example (Clean Jury Instructions).
Finally, the defendant can submit converse jury instructions. There are two types of converse instructions. The first is the more traditional converse that highlights an element that the defense believes the plaintiff has failed to prove. In my example (Converse Jury Instruction), the defense wishes to call the jury’s attention to the fact that to be liable, there must be a connection between the defendant’s speeding and the injuries suffered by plaintiff. The other type of converse jury instruction focuses on an affirmative defense. Converse jury instructions are particularly effective for use in closing arguments.