From Jim's Desk

Very recently, I was in Day 2 of voir dire, asking potential jurors whether they had any pre-existing opinions about my corporate client.  When chatting with one man, I learned that—just the night before—he had gone online and actually performed several searches about the company I represented.  Just one day earlier he had no opinion about my client; but on day two, all that had changed.

Now we all know that jurors should not conduct independent investigations of any kind.  In fact, they’re specifically told by the judge not to do that.  And as much as I appreciated this man’s honesty, I wondered—how many jurors misunderstand or simply disregard that admonition?  And how many others just happen to have conducted searches on my client before they were ever called to jury service? 

But most important: What are they seeing and how might that influence their verdict?

In a recent YC blog, we discussed corporate responsibility when it comes to engaging in social media.  To access that article, click here.

In an ideal world, all jurors would follow their oath to the letter.  I may be naïve, but I like to think that the vast majority do.  But for that one juror who does not—or for those jurors who searched you long before trial even began—how is online content shaping their opinion of you? 

Today, I invite all of you to set aside an hour of your time and conduct a vanity search.  Google yourself.  Bing yourself.  Yelp yourself.  Epinions yourself.  Angie’s List yourself.  BBB yourself.  Then, step back and put yourself into the eyes of someone who is not a corporate representative.

The sad truth is, in many circumstances, there won’t be a whole lot you can do in the short-term if you discover that the general online attitude about your company is negative.  But it might provide you guidance as you move forward.  Maybe you’ll decide you want to rethink a particular corporate policy that is unpopular with the masses.  Maybe you’ll discover that you need to address a problem of which you were not aware.

In some instances, you may even want to address head-on remarks being made about your company or your product.  If you encounter a site that is particularly cringe-worthy, you may want to talk with your marketing and legal department—or your YC attorney—to craft a delicate but pointed response to those remarks.  Worst case scenario—you may find that some sites include entirely false, defamatory statements about your company.  In that case, you’ll want to act especially quickly in seeking guidance to get those statements removed.

At any rate, we are living in the digital age.  Everyone has a powerful online forum at their fingertips, and it seems that everyone is a critic.  Fair or not, the court of public opinion is having a profound impact in actual courtrooms.  That being said, it never hurts to get a handle on your own online reputation.

In today's other post, YC Partner Cristina Ciminelli provides you with helpful prep tips that you can take to any deposition—whether you’re being deposed about your corporate decisions or whether your family dog bit the neighbor lady.  

For a link to YC’s Five Step Deposition Primer, click here.

New Technology at Yukevich | Cavanaugh

YC is now using a new information processing system that we’re excited to tell you about.  It’s called CaseMap, and it’s designed to save you--our client--time and money.

We understand your dual need for affordable legal costs while still getting a thorough, detailed case analysis.  It has always been our top priority to provide that to you.  Now, CaseMap helps us serve you even better in those respects.  With this new information clearinghouse, we are able to:

• Put all your case facts in one place and link them together, making it easy to see relationships between disparate information

• Store facts and documents in a logical, convenient manner

• Enter information once and use it throughout the case

• Cull critical passages directly from a PDF, Concordance® discovery management software, lexis.com®, or any of 30-plus other best-of-breed applications, including Adobe® Acrobat®, Interwoven® and Worldox® 

• See how strong your case is during early case assessment and then provide you with fast case organization and reporting

• Perform powerful case assessment

• Gain leverage at depositions, hearings, settlement conferences, mediations and trials

Implementation of the program has already begun and our attorneys and paralegals are singing its praises.  We hope that you, too, will soon see the value of this top-notch information gathering system.

Five Step Deposition Primer

Few things in life are more nerve racking than being deposed, so anyone who tells you not to be nervous at a deposition, has likely never personally sat in the proverbial hot seat.

"Of course you're going to be nervous," says YC Partner, Cristina Ciminelli, "but the trick is to not let your nerves get the better of you."

YC attorneys know how high the litigation stakes are at a deposition, which is why we never let our clients sit for one until we are sure they are as ready as they can possibly be. 

"It may be true that a case is never won at a deposition, but it can certainly be lost there," adds Ciminelli.  "We do everything in our power to make sure our clients are still standing strong when the court reporter types her final word."

At YC, attorneys design "custom prep" sessions for our clients, outlining questions we anticipate the other side will ask.  Those outlines are based upon the unique facts of each case, along with our knowledge of and experience with opposing counsel.  And while each deposition is different, there are some tricks of the trade that apply to every deposition.  Master these, and your deposition will be topped off with a celebratory glass of Chardonnay.  

1.  Go the Way of the Boy Scout: Be Prepared

"Being prepared for a deposition means more than getting a good night's sleep, though that's important too," says Ciminelli.  "Even more important is reading and re-reading every document that can come back to haunt you.  And when you are satisfied that you know all those documents by heart, read them again."

Understand that opposing counsel will do their very best to catch you in a contradiction.  If you've said something before--whether in a declaration, a report or another deposition--know what you have said and be prepared for counsel to confront you with it.  Saying something harmful in the past is rarely fatal to your case, but looking guilty when you're confronted with it may be.

2.  Wear Your Game Face

Young broadcasters are often taught a technique called, "Acting 'as if.'"  As scared and nervous as they may be on the inside, they need to portray an exterior of confidence and credibility.  At a deposition, you do too.  So before a deposition, ask yourself, "What does a confident person look like?  What does a credible person sound like?"  And then be prepared to "act as if" you possess those traits (even if you don't).  Sit up straight, speak clearly and make eye contact with the person asking you questions.  Remember--the deposition is a dress rehearsal for trial.  Opposing counsel is certainly going to be gauging your effectiveness as a witness.  Perform well enough at the deposition and he may rethink the need for trial.

3.  Forget Everything You Know About Friendly Conversation

Make no mistake--a deposition is not a conversation, and you have no obligation (and no incentive) to fill any awkward silences. 

"The goal at a deposition is to say as little as possible," according to Ciminelli.  "Listen carefully and only answer the question to the extent that you have to."

If you are asked at a deposition whether you know what time it is, and you respond by saying "noon," you just gave the wrong answer.  When asked a "yes/no question," there are only three correct responses:

a.    Yes

b.    No

c.    I don't know

Never offer more than the question demands, even if you think it is helpful to your case.  The more you say at your deposition, the more you will be held to later.

4.  Take the High Road

If there's going to be a jerk in the room, let it be the opposing counsel.  You be the good guy, no matter how much he might push your buttons.

"It's not uncommon for an attorney to go into a deposition with the goal of making the deponent angry.  If you play into his hand, you'll pay for it later," says Ciminelli. 

Oftentimes, depositions are video recorded and those recordings can be played for a jury.  That is a fact you simply cannot lose sight of.  If a jury sees you as angry and hostile, they may not like you.  If they don't like you, they're more willing to believe bad things about you.  In this case, nice guys really do finish first.

5.  Honesty: There's a Reason It's The Best Policy

What you say in a deposition is sworn testimony under oath.  If you fail to tell the truth at a deposition, rest assured that the jury will find out about it. 

"You can make a hundred truthful statements.  But lie once, and the lie is what the jury will remember," says Ciminelli.

Jurors are much more likely to forgive someone for making a mistake or an error in judgment than they are to forgive someone for lying to them.  No case is perfect and no witness is expected to be perfect either. 

"The facts are the facts, and it's our job as your attorneys to work with the facts we've got," says Ciminelli.

Social Media and your Business

To say that the popularity of social media has exploded in recent years is an understatement.  Today, more than a billion people—yes, that’s billion with a “b”—subscribe to Facebook and more than 300 million “tweets” are chirped every single day.

“For companies, being involved in social media is vital to their success.  It’s how they stay relevant,” says YC Partner Steve Smelser.  “But if misused, social media can also lead to a company’s downfall.”

According to Smelser, that’s because the thing that makes social media so appealing, is the same thing that makes it so dangerous.

“These posts are instantaneous and viral,” says Smelser.  “If you’re not careful about what is being written, you could be in for a world of hurt in a matter of minutes—even seconds.  With social media, a defamation lawsuit may only be a few keystrokes away.”

Yukevich | Cavanaugh would never suggest that a company forgo the benefits of social media.  But if your company is making use of it, it is imperative that you take an active interest in what is being posted on your behalf:

• Only allow a select group of employees the privilege and responsibility to author your posts

• Provide clear guidelines about what can and cannot be posted, being mindful of applicable    laws, including: copyright, fair use, financial disclosure, defamation and discrimination

• Put someone in charge of policing the content on your social media accounts, and remove content that violates your written policies

“If any of our clients want help in drafting a clear set of social media guidelines for their employees, we are happy to provide that help,” says Smelser.  “But those guidelines should go beyond just the information that is being putting out there.  The information you take in could have drastic legal ramifications as well.”

For example, it’s not uncommon for companies to screen potential employees through social media accounts.  But there are some prominently displayed pieces of information—including race, gender and sexual orientation—which may not be considered as part of the hiring process. 

“Someone you pass up for a job may later say you discriminated against them because of off-limits information you got from Facebook,” says Smelser.  “That information needs to be filtered out by someone who is not, in any way, involved in the hiring decision.”

The bottom line is that cyber law is a quickly evolving field.  Every day, people are finding new ways to use social media as a basis to sue and get sued.

“But as this field continues to evolve,” says Smelser, “we want to make sure our clients take only the good—and none of the bad—from this double-edged sword.”