Most trial lawyers are in trial only a few weeks each year. They spend the other forty to fifty weeks interviewing clients, preparing for and taking depositions, hiring and consulting experts, and preparing and participating in mediations. The Playbook is about those weeks and tasks. It is a book that gives tips and guidance for what plaintiffs’ lawyers spend most of their time actually doing.
Author Elden Rosenthal is a trial attorney of forty-seven years’ experience whose courtroom successes earned him national recognition and achievement awards from the Oregon Chapter of the American College of Trial Lawyers, the ACLU of Oregon, and the Oregon Trial Lawyers Association.
Rosenthal provides a concise, nuts-and-bolts guide to litigation best practices that will help make you a better lawyer.
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1. A Trial Lawyer’s Point of View
Tenet 1: Keep Clients Informed
Tenet 2: Like Your Client
Tenet 3: Treat Every Case As If You’re Going to Trial
2. First Things First
Evaluate the Statute of Limitations
Recognize Your Reason for Taking the Case
Avoid Conflicts of Interest
Make Sure There Is No Pending Bankruptcy
3. The Attorney–Client Bargain
Enter into a Written Retainer Agreement
Assign Tasks to Your Client
Discuss Social Media
Discuss Communication Expectations
Legal Representation Is a Partnership
4. Decide Early On: Do I Associate Co-Counsel?
5. The Trial Notebook
6. Prefiling Investigation
Visit Accident Scenes as Early as Possible
Preserve Potential Physical Trial Evidence
Research the Parties
Research the Law
7. Selecting the Parties
Selecting the Plaintiff
Selecting the Defendants
8. Pleading the Plaintiff’s Case
9. Paper Discovery and Protective Orders
10. Preparing for Deposition: Defendants and Defense Witnesses
The Three Primary Purposes of Discovery Depositions
Prepare a Deposition Outline
Setting Up the Witness for Trial Cross-Examination
Setting the Order of Deposition Testimony
Client and Colleague Attendance
Location of Depositions
11. Preparing for Deposition: Your Client
12. Taking Defense Depositions
Questioning the Witness
Dealing with Improper Defense Tactics
Concluding the Deposition
After the Deposition
13. Defending Your Client’s Deposition
14. TAKE A DEEP BREATH
15. Hiring Expert Witnesses
Finding the Right Expert
Keeping Experts Informed and Engaged
16. Conducting Focus Groups
17. When Things Don’t Go Well
18. Exploring Settlement
When to Negotiate
Make an Effort to Negotiate Lawyer to Lawyer
The Plaintiff’s Demand
Concluding a Mediation
19. Preparing Yourself for Trial
Take Care of Yourself
20. Preparing Witnesses for Trial
21. The Nitty-Gritty of Trial Prep
Direct and Cross
23. The Challenge We Face
Appendix A: Retainer Language Relating to Court-Awarded Attorney Fees
Appendix B: Model Stipulated Protective Order
Appendix C: Form Letter to Client Regarding DepositionAppendix D: Focus Group Questionnaire
What Legal Leaders Are Saying
— James McElroy, San Diego trial lawyer, recipient of the Southern Poverty Law Center Distinguished Service Award, the AAJ Defense of Civil Liberties Award, and the Planned Parenthood Margaret Sanger Award
The Plaintiff Lawyer’s Playbook should be mandatory reading for every trial lawyer, especially those who are new to the profession. Had it been written forty years ago, I would have given a copy to every associate that came through my office since then and demanded that they read it the first week in my office.
— Kelly Rudd, Wyoming trial lawyer and managing partner of Baldwin, Crocker & Rudd
Elden Rosenthal has given us a gem. The Plaintiff Lawyer’s Playbook is a distillation of the wisdom born of a lifetime of trial practice at the highest level.
— Bill Barton, Oregon trial lawyer, author of Recovering for Psychological Injuries, fellow of the International Society of Barristers, and past president of the Oregon Trial Lawyers Association and the Western Trial Lawyers Association
Elden Rosenthal’s Plaintiff Lawyer’s Playbook is accurate, brief, and clear. It’s chock-full of the essentials necessary to prepare civil cases for their maximum potential. Every aspiring jury trial lawyer should have this book in their toolbox.