Youtube: https://www.youtube.com/watch?v=tPHVuBt09RY
42mins
Michael Ehrenstein 00:00
Welcome. My name is Mike Ehrenstein. I’m the 2022 President of the Litigation Council of America and I am joined today by my good friend, my brother Ken DeMoura. Our topic today is the trial lawyer gun for hire.
Michael Ehrenstein 00:17
And just so we’re all on the same page, what we’re really talking about is that trial lawyer who gets asked on the eve of trial to take over somebody else’s representation that usually isn’t adequately prepared and has not been put together as well by predecessor counsel as one of our fellows would normally put a case together.
Michael Ehrenstein 00:41
So today Ken is going to talk to us a little bit about the hired gun. Some sort of overarching issues that hired gun lawyers have to face every once in a while and some practical pointers, the nuts and bolts of hired gun representation.
Michael Ehrenstein 01:00
So before we get into the topic, let me tell you why I think Ken is the right person to talk to about this. First of all, everybody who knows Ken knows that he is a consummate trial lawyer. He’s had over 50 cases tried to verdict, I think over 50 cases tried through arbitrations.
Michael Ehrenstein 01:23
And I guess like all of us at some point he has been asked to take over representation from otherwise less prepared litigators who were not able to take a case through trial. In addition, to his vast experience in this regard, ken also has been the president of the LCA and he has a huge heart.
Michael Ehrenstein 01:58
He’s a great dancer, a wonderful musician, a great family guy, and he’s my friend. So with all of that, welcome, Ken.
Ken DeMoura 02:08
Thanks, Michael. I’m glad to be here. And I got to tell you, you’re hitting it out of the park as our president this year.
Ken DeMoura 02:15
I know we haven’t been able to get together in person, but you’re helping keeping us all together as a group in spirit. It and through these interviews, so thanks so much.
Michael Ehrenstein 02:26
When we started to discuss this topic about the hired gun, I remember I envisioned the gun slinger.
Michael Ehrenstein 02:37
I envisioned Clint Eastwood from The Good, the Bad and the Ugly. And you were going to be The Good. I was going to be The Ugly, and I don’t know who was going to be the Bad, but I heard the music in the background from that song and we were talking about it, and I said, the gun slinger, the gun slinger.
Michael Ehrenstein 02:55
And he said, no, we can’t talk about a gun slinger. We’re going to talk about a hired gun, not a gun slinger. What’s the difference?
Ken DeMoura 03:03
Well, in my view, the difference is when I hear the word slinger, they can hear other things, can be slung as we go, but I kind of think of that as somebody more reckless.
Ken DeMoura 03:20
And when you are being put in this position of being engaged on the eve of trial to try your client’s case, you don’t have time to be reckless. You don’t have time to take really crazy risks. And so the gun slinger didn’t didn’t sound right to me, as opposed to being the gun for hire where I’m being brought in to help client resolve a very sticky, complex situation because of the expertise that I can provide.
Michael Ehrenstein 03:55
Great. So let’s use that as our definition then. The hired gun trial lawyer is I guess a hired gun is normally somebody who you think of as a bodyguard or an assassin, somebody with a very special skill set.
Michael Ehrenstein 04:14
And here, in the context of being the trial lawyer, you’re being hired as the person with a very special skill set to be able to dig your client out of a deep hole in a very complicated case where whoever came before you didn’t necessarily do such a great job.
Michael Ehrenstein 04:37
So you’ve had the occasion to be hired as a hired gun. Tell us about the last time that happened.
Ken DeMoura 04:46
First off, I’m not always hired because the attorney who had the case before me didn’t do an adequate job of preparing the case.
Ken DeMoura 04:57
In fact, very often I get cases like this from counsel that’s had the case before who says, look, in light of we thought this case was going to settle, you didn’t want me to put a lot of time into it.
Ken DeMoura 05:10
It’s not going to settle. The other side is unwilling to settle. You really need to have somebody with more expertise, either in the area of law that we’re in or just a really, really good trial lawyer who knows this jurisdiction, knows the juries, and knows the judges that you appear in front of.
Ken DeMoura 05:28
So there are cases where the referring, the person referring the client to me is actually the attorney who had the case before me. And that creates some tension in itself, which we can talk about in a little bit.
Ken DeMoura 05:42
But most recently, I think, over the past two or three years, I’ve had two significant cases that came to me. One where the attorney who had it before me referred. The client to me and had done that in the past.
Ken DeMoura 06:00
And the other a case where the attorney and client had the relationship had simply broken down to the point where they both realized that the attorney who had the case before couldn’t try the case. In fact, I was brought into that case while a motion to withdraw was pending by the attorney who preceded me.
Ken DeMoura 06:26
The first case, the one I referred to that the lawyer who had the case before me came to me was a theft of trade secrets case. And the plaintiffs I was defending the plaintiffs in that case simply had a very unrealistic view of the value of the case.
Ken DeMoura 06:50
And the Attorney who referred the case to me just couldn’t get them to settle the case and suggested to the client, since it had to go to trial, that they hire a trial lawyer. So I had that one. The other one, as I say, actually was a case involving a fraud where an investor owned residential rental properties.
Ken DeMoura 07:18
And there was a fellow who came and the client was having some financial difficulties, he needed to have a work out of his mortgage. Fellow comes along who says, I can help you, has him sign some documents and then takes the signature page of one of the documents and attaches it to a deed, records it and sells the property to somebody else not to be seen again.
Ken DeMoura 07:45
So that was a case involving whether the new owner was a bona fide purchaser or not. And we had to try to quiet title in that case.
Michael Ehrenstein 07:56
So neither of those cases are factually simple right? I mean both cases a theft of trade secrets case in my experience raises some pretty thorny factual issues and raises some pretty thorny legal issues and same thing with fraud.
Michael Ehrenstein 08:17
I mean, you know, of course, the simple issue of whether or not somebody put the wrong document, the wrong signature on, attached a signature to a document fraud, maybe that’s not so complicated. But the consequences of that and whether or not there was a good faith bona fide purchaser for value without notice, etcetera, those are all complex issues.
Ken DeMoura 08:39
They were.
Michael Ehrenstein 08:40
So as the lawyer hired on the eve of trial how do you get your arms around all of that? I know you as a trial lawyer you are prepared, always prepared but you can’t be prepared if you’re on the eve of trial and somebody’s coming over with 17 boxes of things for you to look through and you’ve got a week to get it all together. How do you do this?
Ken DeMoura 09:10
Well you do try to do as you do too as thorough a job in preparation as you can. One of the benefits usually if you’re a lawyer who tries lots of cases is you know who the judges are in that jurisdiction, you know what kind of juries you’re going to get pretty much.
Ken DeMoura 09:26
But really it’s a matter of managing the client’s expectations and being very upfront with the client about what are the objectives? Objectives are those objectives reasonable or not? And to the extent that you can and before I get engaged in a case like that I do want to be on the same page with the client about what are the objectives here and.
Ken DeMoura 09:54
When I do that, then I start. Of course. Okay. Now, I’m going to be preparing with that objective in mind, and that might get a little of the background noise out of the way. Things that I would have chased or done differently to investigate other theories, I’m not doing because I don’t have the time to do that.
Ken DeMoura 10:12
So that’s the first step, is speak to the client. Sit with the client, get as much information as you can, but ultimately making sure that you’re both on the same page about the objectives of the case and the client’s expectations going forward.
Michael Ehrenstein 10:29
Our dear friend Bill Wagner had created a list of Wagner’s Rules of Engagement. That’s right. That list is something that I frequently refer to not only in preparing for trial, but also in preparing my client for trial and letting him know what’s going to happen.
Michael Ehrenstein 10:51
And I know that you relied on that list as well. Is there anything from that list that jumps out of you, is something that you definitely want to be talking to your client about when you are trying to manage expectations?
Ken DeMoura 11:07
Yes, and Bill gave us all a copy of that list during one of the CCLI conferences in Vegas several years ago, and I now use that, and he gave us all permission to do it with virtually all of my clients when we’re getting ready for trial.
Ken DeMoura 11:26
But the most direct and important points I found that apply in this situation are, number one, expect the unexpected, because we don’t know everything that Prior council knew. There is never going to be perfect.
Ken DeMoura 11:44
Don’t let the enemy of good. I forget how the expression goes. Perfect. Be the enemy of good screw ups are going to happen. And the other one is keep your eye on the gun site and not the gas gauge. And that’s a really important one.
Ken DeMoura 12:02
Because what I have found in other cases that I’ve taken over from other council it isn’t so much that other council didn’t do certain things because they didn’t know how to or didn’t think of them. But often it’s because the client has put handcuffs on the attorney about how much money they can spend, what sort of resources are going to be available to prepare the case for trial.
Ken DeMoura 12:36
And I’ve heard that from counsel when I’ve come to take the case from them and said, hey, you didn’t take this deposition. Why not? Or why didn’t you do some of the things that you now tell me you wish you had done?
Ken DeMoura 12:51
And oftentimes it’s because the clients, when they’re told how much it’s going to cost, take the position that they would rather not do it. So I make the point of telling clients who come in here with trial pretrial has happened, the trial date is selected or I’m going to be going to the pretrial in two days to let them know that, you know, your expectations and budgeting for trial prep are now out the window.
Ken DeMoura 13:22
Now we’re, now we’re in trial. In order to, to achieve the objectives, you have to keep your eye on the gun site and not the gas gauge.
Michael Ehrenstein 13:32
Don’t worry about how much you’re going to be spending right now.
Michael Ehrenstein 13:35
Focus on the objectives, right? And let’s get the objective accomplished. There’s an interesting tension that comes up in these types of cases in particular, especially if it’s a good referral source who’s giving you the case.
Michael Ehrenstein 13:58
I don’t like to go around suing lawyers or telling other people that other lawyers have maybe not met the standard of care. So a lot of times it sounds like you have to have these conversations with the lawyer who previously represented your client and say, well, why didn’t you do this, and why didn’t you do that?
Michael Ehrenstein 14:23
At what point do you feel like you have to actually have the conversation with your client and say, either, listen, this was a judgment call. He chose not to depose this particular witness or to ask for this particular document.
Michael Ehrenstein 14:41
That was a judgment call. I’m not a Monday morning quarterback. Everybody can have perfect vision in hindsight, but it’s not a departure from the standard of care versus, hey, you know what? Let’s win this case.
Michael Ehrenstein 14:58
But if we don’t, there are things that really should have been done here that weren’t. How do you kind of balance that?
Ken DeMoura 15:10
It is one of the tough things to navigate, but what I always do is I won’t take the case until the client has given me permission to meet with preceding counsel, review their file number one, and try to sort of get my hands around the problem, get my hands around what I’m dealing with.
Ken DeMoura 15:35
The second thing I do to manage the clients expectations is make it clear in the engagement that I’m not being hired. To investigate a malpractice case against your former attorney. I’m being hired to try this case and win it or get the best result that we can.
Ken DeMoura 15:54
If along the way, things come up that call out for discussion with a client, I’ll have those discussions, but usually what I try to do is focus on winning this case with whatever I have, whatever information I have, whatever evidence I have, whatever deposition transcripts I have.
Ken DeMoura 16:19
And then sort of in the post mortem, let’s say, if there is a need to discuss that, have the discussions with the client, then.
Michael Ehrenstein 16:31
Good. So, the first thing you do, you said, is you meet with the client, and then you also insist on meeting with the former counsel.
Michael Ehrenstein 16:43
You set expectations, you set objectives, and talk about having a realistic result. Then when you meet with former counsel, what are the issues that you try to review with him or her?
Ken DeMoura 16:57
Well, what I want to know is, what can you tell me about opposing counsel?
Ken DeMoura 17:02
What can you tell me about the discovery process? How thorough were you in obtaining all of the information you wanted from the client? How cooperative was the client in that process? You don’t want any surprises to show up at trial where you fail, someone failed to produce something.
Ken DeMoura 17:24
A witness wasn’t disclosed. And now you’re not in a position where you can use that witness because of a late disclosure. So I want to try to find all that out right up front. The other thing is, I want the pleadings.
Ken DeMoura 17:36
I want to see if all of the affirmative defenses that I have. Or would have thought of were raised, and a case in point .1 of the cases that I did a while ago in this area, I got the answers to the complaint.
Ken DeMoura 17:48
It was a breach of contract case. I thought mitigation of damages was going to be a central defense and theory of my case, and mitigation of damages had not been pled in the answer as an affirmative defense.
Ken DeMoura 18:02
So we immediately had to move to amend the complaint. The answer got a lot of fight from opposing counsel, but the judge did let us amend the complaint. But those types of things are the kinds of things I want to hear from the council on taking the case over from.
Michael Ehrenstein 18:21
Do you look for red flags?
Ken DeMoura 18:27
Yeah. The first red flag is when you ask the client, when you say to the client, I want to talk to your present Attorney, and they say they’d rather I don’t. If they say that, I generally gently tell them that this isn’t the kind of case that I’m going to be able to help them with, because I’m going to need to have a conversation with that attorney.
Ken DeMoura 18:49
And I’m going to need that attorney’s cooperation in the transfer of the files, in a candid assessment of the witnesses, the quality of the evidence and all that kind of stuff. So that’s the first red flag.
Ken DeMoura 19:04
The second red flag is when the attorney I call doesn’t want to meet with me, and he says, I’m glad to get rid of this client. Here’s the file. Good luck to you. That raises some concerns in my mind, and I try to push back and get that the prior counsel to understand that it would be really beneficial to the client and to them that we meet and go over it.
Ken DeMoura 19:33
The other ones, I guess, would be if the attorney says. I wanted to do X, Y, and Z, but the client wouldn’t let me. That’s when I really need to have that talk with the client about understanding that those types of restrictions are not helpful and not welcome.
Ken DeMoura 19:52
When we’re now in the throes of the litigation, in the throes of the trial.
Michael Ehrenstein 19:57
Do you inquire about, hey, why didn’t this work? Why didn’t this relation ship work out? Or do you kind of stay away from that and say.
Ken DeMoura 20:05
No. I kind of do like to know that. I want to also see if both the client and prior council sort of are consistent with what they tell me about why it didn’t work out. Some of them, like I said, it’s a question of philosophy and theory of how they want to try the case and the client not agreeing to it.
Ken DeMoura 20:31
Many of the cases that I’m taking over, unlike a guy like Rick Gass, who we both remember, Rick, who was basically he was the quintessential hired gun, he went all over the country trying cases. But in his case, his clients had hired local council.
Ken DeMoura 20:50
They worked the case up the way he wanted it all worked up, and they were sophisticated consumers of legal services. Right. Usually in house counsel in the cases that I’m talking about, coming into, a lot of times it’s an individual or a very small business or mid size business that probably doesn’t have a lot of litigation, hasn’t been involved in a trial before.
Ken DeMoura 21:14
And so I think in some respects, they get, as they get closer and closer to trial, they get cold feet. They wonder if they have the attorney, if the attorney that they’ve got handling the case is going to be able to deliver and get the result they’re looking for.
Ken DeMoura 21:33
So often I want to get. I want to get everybody as much as I can onto the same page.
Michael Ehrenstein 21:39
Right. So, what happens when you’re looking at the case? You’ve spoken to your client now, you’ve spoken to former counsel.
Michael Ehrenstein 21:50
You’ve gotten his file, and you realize there’s a lot of information that I really would like to have, but discovery deadlines are long and gone. I’m not getting a continuance here. And how do you go about finding and gathering additional information outside of sort of the normal discovery process at that point?
Ken DeMoura 22:16
We use the same process, really, that we use in almost all of our cases when we’re initially engaged, which is to scour all types of informal discovery mechanisms. I send my paralegal if it’s like that real estate case, I want to see the property.
Ken DeMoura 22:35
They go out and look at the property. We use social media. We look for any kind of posts or information on social media that the other party in the case has put out there. We do public records requests with licensing boards, with building departments, with any sort of source of information that we don’t need to disclose to the other side or request permission from the other side to get.
Ken DeMoura 23:07
And in my most recent case, the trade secret case I was telling you about that was effective in the case because we found out information there had been prior litigation involving this. One of the claims was a lost profits claim.
Ken DeMoura 23:27
And we found another litigation where the plaintiff in the case had been the defendant in an eviction proceeding and she was claiming that she didn’t pay the rent because so many bad things, the property was so horrible and she lost so much profit.
Ken DeMoura 23:45
So so that was very helpful information that we were able to get sort of free of charge. The other side didn’t know until we did the cross exam of the plaintiff that we had it. So, you know, in today’s environment there’s so much out there.
Michael Ehrenstein 24:01
It makes more ammunition for the hired gun. There’s a lot of bullets out there, right? And we had another find them.
Ken DeMoura 24:09
We had another case where the other side was a person who did posted videos all the time of herself on Facebook, on Instagram.
Ken DeMoura 24:21
So I was able to size her up a little bit and get an idea of what kind of witness she was going to make from watching those videos.
Michael Ehrenstein 24:29
That’s interesting. One of the things that to me is hardest about being the hired gun is even assume that your predecessor counsel was a fantastic lawyer, prepared the case exactly the way that you would have prepared it.
Michael Ehrenstein 24:49
Well, probably prepared it better than I would have prepared it, but has done really a bang up job preparing the case. One of the things that I miss most is being able to size up the witnesses, which you can’t do off of a transcript and even off of a video, assuming that the depots were videotaped.
Michael Ehrenstein 25:12
It’s really, really hard to do.
Ken DeMoura 25:15
Very hard.
Michael Ehrenstein 25:16
So the idea of going on social media and looking and finding out if a witness has posted a lot of video that I think is helpful and is now making me second guess why I’m doing these interviews on video.
Michael Ehrenstein 25:32
But okay, so.
Ken DeMoura 25:36
And I’ll tell you what, what else, Michael? Even it’s even as important with your own client, right? Because I’m getting this client at the end of the marathon, right? So they’ve now run 24 and a half miles and I’m carrying the last mile and a half.
Ken DeMoura 25:52
If you’ve been on that race the whole time with them and you sat beside them at the deposition that was taken by opposing counsel, you have an idea of your client that you’re not going to have when they’re walking in for the first time on the eve of trial.
Ken DeMoura 26:07
So it’s imperative that in that process, you try to get as close to that client and the witness prep, the testimony prep becomes that much more important. And you try to watch the tendencies that client has or the weaknesses or the tells that are stuff that you would probably just normally pick up over a three or four year period.
Ken DeMoura 26:31
Now you can’t you have to do it all at once in this condensed period of time.
Michael Ehrenstein 26:36
Crazy. So you’ve spoken now to the client, you’ve spoken to prior counsel. You have a feel for the case. You have an understanding of what discovery has been done and maybe what hasn’t been done.
Michael Ehrenstein 26:53
You have an idea of what else you need to do to prepare. At what point do you signal to the lawyer, on the other side, there’s a new sheriff’s intown?
Ken DeMoura 27:07
Yeah. Well, after we do all that and we get the engagement letter done and the client is satisfied and we all sort of are on the same page, first thing I do is call opposing counsel and.
Ken DeMoura 27:21
I do this in a lot of my cases, but especially in these cases, I asked them to go to lunch with me.
Michael Ehrenstein 27:26
Yeah, that’s also a Rick Gass.
Ken DeMoura 27:28
And I was doing that before the LCA, other mentors of mine had also suggested it.
Ken DeMoura 27:39
It’s a great way to sort of set the tone that you may have been dealing with somebody else who in a lot of cases, there’s some friction with opposing counsel. We’re both here. We’re going to try this case.
Ken DeMoura 27:53
We’re going to be battling against each other in court. But I play at a very high level professionally, and I expect you to do the same. It’s important especially, I don’t like it when the first time I call, I send an email or I call three days later, no call back.
Ken DeMoura 28:21
I get a sense already about what I’m going to be dealing with with council on the other side. But take them to lunch or her to lunch. Talk about your life, who you are. One guy was going through some stuff with his wife, had a very high risk pregnancy.
Ken DeMoura 28:40
And after he told me that, I cut him some slack on a couple of things that came up during the pretrial that he appreciated, and I wouldn’t have known about otherwise. And I think it helped with goodwill back and forth when I needed some piece of evidence that maybe hadn’t been disclosed, store, something like that.
Ken DeMoura 29:03
That was minor. He helped me out too. So I meet with the attorney. I go over all of the stipulations, if there are any I make sure that I have copies of all of the exhibits that have been proposed by either side.
Ken DeMoura 29:22
I want to know if my prior counsel has stipulated to any of those agreed to any of them that I didn’t know about until now. And I have to go back and say, well, wait, those three exhibits, when I talked to prior council, he never told me that those were agreed to.
Ken DeMoura 29:41
So now I got to go back to prior council and clear that all up. But I wanted to get as early as I can a really good understanding about how is this case going to get tried, what exhibits have we agreed to?
Michael Ehrenstein 29:54
When’s the closest to trial that you’ve been hired?
Ken DeMoura 29:59
Well, the one that I’ve mentioned, which is the bona fide purchaser case. Right. So I was probably about two and a half, three weeks before trial. Yeah.
Michael Ehrenstein 30:13
I’m in the same boat. I had a case that was a I got hired about two weeks before trial. And so did you did you run into court and say, I just got hired? Hey, yeah, you know.
Ken DeMoura 30:28
In that case, in that case I did, because that was the case where the lawyer on the other side had filed a motion to withdraw.
Ken DeMoura 30:34
So the judge was kind of already aware that new counsel was going to be needed in the case, and they were very accommodating. We did get a little bit more time, but only as sort of an olive branch or a way of getting that.
Ken DeMoura 30:51
I also agreed my client had been resistant about mediating and trying to settle the case up until then. And I said, if you give me the additional time, which was not much, I will get my client to agree to mediate the case.
Ken DeMoura 31:06
So the judge was appreciative of that and did give me the time, but that was probably two weeks out of the eve of trial.
Michael Ehrenstein 31:20
I was very tempted in that one case that I was hired about two weeks before trial to ask for a continuance, and we ultimately decided not to.
Ken DeMoura 31:33
I think that was a wise choice.
Michael Ehrenstein 31:34
Yeah. So talk about that a little bit about whether or not it’s a smart thing to do if to immediately seek a continuance so that you could have more time and be better and better and better prepared.
Michael Ehrenstein 31:49
Or if it’s better to just say, you know what? I got hired for a purpose, and I’m here to do that job, and I’ll be ready.
Ken DeMoura 31:55
I think the latter is the way I tend to go. I want to resist the urge, if I can, to ask for a continuance, because I think it helps build credibility with the court that you’re prepared to come in and try this case, and it kind of catches the other side on their heels.
Ken DeMoura 32:15
Like, oh, wow. This guy is going to come in here and he’s going to be able to try this case this fast. And so I don’t want to ask for continuance. Another reason I don’t want to ask for continuance is I don’t want the first thing that I file with the court to be, I need you to let me have more time.
Ken DeMoura 32:37
And I don’t want the first thing to be something I lose, because nine times out of ten, I think when you’re that close to trial, the court’s going to say, well, counsel, your client is the one who made this decision to go with new counsel.
Ken DeMoura 32:53
Plaintiff or defendant, the other party has been waiting for their day in court. I’m not going to give you an extension. I’m not going to give you a continuance. Be ready to try the case. So I don’t like to lose motions.
Ken DeMoura 33:07
I don’t like to lose, and I think when that happens, it almost emboldens the other side, and they say, oh, wow, the judge is in our side, on our side here, the other side lost this motion.
Michael Ehrenstein 33:20
Or, or emboldened them to the point where they go, they’re not pre- he’s not prepared. He’s never going to he’s never going to be that well prepared. So showing up and having the courage. To say..
Ken DeMoura 33:31
Ready for trial, your Honor.
Michael Ehrenstein 33:32
We’re going to be ready. We will be ready. Right.
Michael Ehrenstein 33:36
Actually, that happened in another case more recently than the one I was thinking about, where where I showed up on the I was asked to appear on the eve of trial and in federal court walked in and said, we’re ready.
Michael Ehrenstein 33:52
And the opposing counsel’s jaw kind of hit the floor. The judge looked at me. He said, Are you sure? He said, I’m sure. Let’s go. And we went forward. With all of your experience dealing with these hired gun issues, are there risks that you have faced in taking these cases that you want to warn fellows about?
Ken DeMoura 34:28
Well, I think, yes. One is that you take the case without having done that initial interview or get your hands around what your prior counsel has done, and something comes up during the trial that you should have known about, but you didn’t.
Ken DeMoura 34:50
And now you’re backpedaling. Now you’re playing defense. And so that’s a big and even if you have done that preparation, when you’re doing this in such a short, compressed period of time, people forget things.
Ken DeMoura 35:09
File folders that should have been in the file. Didn’t make it to the file and are still sitting on prior council’s desk. We try and do a lot electronically, get everything over electronically, but that doesn’t always work either.
Ken DeMoura 35:24
So that’s one of the big risks, is something is going to fall through the cracks. And so what I do to try to avoid that again is the real thorough interview with prior council. When they send me their file, we immediately create an archive file of everything they’ve given us and we put it aside so that we know exactly what we got the day this all started.
Ken DeMoura 35:52
And that helps protect us as well in the event that later something comes up where, hey, you didn’t use that document at trial. Well, I couldn’t have used it because I didn’t have it, but the risks are that things can fall through the crack.
Michael Ehrenstein 36:11
For me, the conclusion of all of this is managing expectations is a huge issue because you want your client to understand there’s risks going forward and that you’re kind of coming in at the 11th hour and you’re stuck with what you got.
Michael Ehrenstein 36:33
As one lawyer once told me, you can’t shine a piece of garbage. Yeah. And if that is what you got, that’s what you’re stuck with. And even if it isn’t a piece of garbage, it wasn’t you. You can’t be as well prepared as you would have been if you were the person who started the case.
Ken DeMoura 36:56
You’re right.
Michael Ehrenstein 36:56
If you were the person who formulated the pleadings, the person who pursued the discovery, you’re stuck with a very good maybe the person who came before you was great, but you’re stuck with.
Michael Ehrenstein 37:10
Their view of the case, their perspective, their discovery, their theory of the case.
Ken DeMoura 37:16
That’s right. That’s right. And their expert sometimes you might not see eye to eye with the expert that’s there, but it’s too late to unring that bell, and you got to go forward.
Ken DeMoura 37:30
One of the other things that all this reminded me of is make sure or that in reviewing the pleadings, the court orders the motions. In Massachusetts, we can get audio transcripts of pretty much every hearing in our state courts for every motion.
Ken DeMoura 37:49
And I listen to those. And that’s helpful because I don’t want to walk into a judge’s courtroom who already is predisposed not to like me because of some perception that judge has about my client or about the attorney who had the case before me.
Ken DeMoura 38:12
So I’d like to hear those motion sessions, if there are any one of the cases had. There were a lot of discovery bouts and motions for sanctions, things like that, and I wanted to hear how the judge was questioning each side and was more interested in the judge’s reactions during those hearings.
Ken DeMoura 38:38
That’s something that you really need to think about, too.
Michael Ehrenstein 38:42
This is sort of like the difference almost to make a bad analogy, probably a bad analogy, the hired gun is playing jazz, and the normal trial lawyer is playing classical.
Michael Ehrenstein 39:06
There’s rules in classical music. There’s rules that you follow. There’s a very set pattern that you’re following the script. Right. And when you’re coming in sort of extemporaneously at the last minute, you’re not going to be as well prepared.
Michael Ehrenstein 39:22
You got to be playing jazz a little bit, and you got to be willing to follow somebody else’s lead.
Ken DeMoura 39:27
Right. And you don’t have that institutional memory, that historic memory of why is the opposing counsel making such a big deal of this?
Ken DeMoura 39:37
Well, it’s because of the battle they had during a deposition when the opposing counsel and prior council were arguing back and forth, and one of them was maybe hiding the ball a little bit. You’re not the one who has that.
Ken DeMoura 39:54
And you walk into it. You almost step into it if you want to use the same analogy, using something oh, man, I wouldn’t have even brought that up if I had known that was where it came from.
Michael Ehrenstein 40:07
So if I ever find myself in the position where I need to hand off a case to somebody on the eve of trial, I know who I’m going to call.
Michael Ehrenstein 40:19
And I really appreciate you sharing your wisdom and your lessons with us today. Ken, are there any last things that you want to share with us before we sign off?
Ken DeMoura 40:31
Well, I will say that I feel the same about you and would bring you in and try a case if I couldn’t do it as well.
Michael Ehrenstein 40:39
We’ll try one together.
Ken DeMoura 40:41
Right. The only other thing I’ll share for all of the LCA fellows is the next time you see me, there’s something different about me.
Michael Ehrenstein 40:49
Hey. That’s right. Congratulations.
Ken DeMoura 40:52
Yes.
Michael Ehrenstein 40:53
I’m thrilled for Mrs. Domoura.
Ken DeMoura 40:56
Linda and I. She finally made an honest man out of me, I guess.
Michael Ehrenstein 41:00
How long did it take? Don’t answer.
Ken DeMoura 41:04
No. All right.
Michael Ehrenstein 41:07
Well, congratulations, mazel tov, and thank you. Thank you very much for sharing with us today your lessons and your wisdom. We appreciate it.
Ken DeMoura 41:19
Thanks, Michael. Good to see you here.
Michael Ehrenstein 41:20
Bye bye. Nice seeing you too.
