Blog - Scott Key & Associates

Three Lessons From My Legal Podcast

June 7, 2021/by J. Scott Key

I’ll let you in on a secret. The Advocate’s Key, my podcast, is as much for me as it is for the audience who listens to it. I choose guests because I want to learn from them or because I’m curious about their story. It just so happens that you can listen in.

If you haven’t listened yet, I want to share three lessons I learned on two recent podcasts.

Look To Be a Bargain. Don’t Look to Get a Bargain. I interviewed Justice Charlie Bethel of the Supreme Court of Georgia. He repeated something he said to mine and Judge Dillard’s law school class. Here was the lesson: no matter what your job is, you should make it your mission to be the best bargain your employer ever received for whatever amount of money you are being paid. Work for yourself? Then look to be every client’s best bargain ever. If you work to get a bargain, you will find that life seems unfair. You’ll feel constantly cheated. If you are a “be-a-bargain-person,” you will find many opportunities coming your way.
Don’t Focus Just on The Career Goal You Want; Focus on Being the Kind of Person Who Would Achieve That Goal. Again, from Justice Bethel. He advises that it can be a mistake to focus just on your career goal. What if you want to a federal judge, or the President? You can work to be those things. But many things about your career goals are beyond your control. Timing and luck are a bigger deal in life than we think. However, if you fill your toolbox with the things that would make you a great Senator, President, major league baseball player or fill in the blank, you will have acquired wonderful skills that you can transfer to some other worthy pursuit. What a great perspective!
Be Scrappy When You Feel Like You Are in Over Your Head. Also, The Work Never Stops. From Steve Frey, a good friend of mine and great trial attorney, I learned a little of what he learned from his dad, himself a legendary Atlanta criminal defense attorney. When Steve passed the bar, his dad’s eyes welled with tears. But, moments later, his dad told him that his achievement would mean nothing if he didn’t keep working. As someone else once told me: you don’t buy success. You rent it. And the rent comes due daily. When Steve found himself in Federal court and realized his opponent was the United States of America, he did a little gut check. And he went on to win. This podcast is filled with wisdom.

If you haven’t checked out my podcast, please do so. You can find it on:

I hope you have half as much fun listening as I have enjoyed doing these interviews.

McDonough Man Injured in Slip and Fall Accident

May 11, 2021/by J. Scott Key

A Bad Date

Drew had been looking forward to Friday all week. On Sunday, he’d matched with Alice on Bumble; on Monday, they’d set a date. They decided to go to a bar in McDonough to hear a local band play.

All week, Drew felt like he was walking on a cloud. He and Alice had an easy rapport over text messages, and he couldn’t wait to meet her in person.

Friday evening, he got to the venue early. He planned to grab drinks at the bar – one for himself and one to be ready for Alice when she arrived.

But he didn’t make it.

Just a few steps from the door, his right leg slipped out from under him. Instinctively, he reached out to steady himself. He grabbed the host stand, but it wasn’t secured. As he hit the ground, he felt a pop in his knee. The host stand toppled over on top of him, crashing into his head. A stabbing pain shot through his backside.

Waitstaff and other patrons rushed to his aid. Embarrassed, he tried to stand up. But any movement caused excruciating pain.

He was lying on the ground, staring at the ceiling, when he saw Alice’s face among the worried crowd. He wished he could evaporate into the floor.

The manager came over and started yelling at a server. “Why didn’t you clean that spill yet?” he cried. Drew glanced down and realized he was, indeed, lying in a puddle, a mess of beer and broken glass.

Another patron, a woman, shook her head in disgust. She looked at Drew and said, “That drink must’ve been lying there for fifteen minutes. I saw the guy drop it; they just left it there.”

Drew grimaced. No wonder his backside hurt so much; it was full of glass. He tried to move again, and the woman knelt down next to him. “Stay still honey, someone already called 911.”

He groaned. “No, no, we don’t need that, I’m fine.”

The woman quickly shushed him. “Don’t say that again!” she whispered, “You’re hurt, and this is not your fault.”

While it didn’t come from a lawyer, this was Drew’s first piece of legal advice, and it was absolutely correct.

Is it a Legal Issue When You Slip and Fall?

Drew’s fall ruined his night, and it would ruin quite a few more of his coming days. He didn’t know it just then, but this was the beginning of a legal battle.

The restaurant’s management and waitstaff had violated a piece of Georgia state code known as “premises liability.”

Basically, when people are lawfully gathering on a property, they should have a reasonable expectation of safety.

This statute applies to public places (like bars, stores, parks, music venues, and more) as well as private residences.

Property owners, building managers, renters, store owners, and superintendents have a responsibility to protect people who visit their spaces. If someone is injured on a property because of a preventable hazard, the building owner or manager could be liable for their medical bills.

And Drew had quite a few medical bills. The emergency room doctor diagnosed him with a torn MCL, lacerations from the broken glass, and a concussion. He needed knee surgery, and the doctor recommended he take a leave of absence from his construction job for at least three months.

He was livid. How could he possibly afford to miss three months of work? Especially when he had bills to pay?

Each time a doctor spoke to him, he heard the woman’s words repeating in his head: “That drink must’ve been lying there for fifteen minutes.”

If she was right, did that mean the restaurant could be held responsible for the fall?

Holding Property Owners Accountable in Henry County

Drew contacted a personal injury attorney in McDonough for a consultation. Indeed, the lawyer believed he had a solid case.

Because the restaurant manager had clearly noticed the dropped drink but had not cleaned it up, he had behaved negligently. Simply telling an employee to clean the mess was not sufficient; the manager needed to make sure the area was safe for guests.

If, for some reason, a spill in a public place cannot immediately be cleaned, there are other ways to protect visitors. A yellow caution sign could have been placed over the area, or an employee could have been tasked with standing over the mess and diverting foot traffic.

But that didn’t happen. Instead, the problem was ignored.

To win a premises liability case, your legal team must prove that the owner, manager, or other party responsible for the grounds was negligent. Because an eyewitness noticed the drink lying on the ground, Drew’s lawyer felt they could easily prove negligence.

The lawyer asked if Drew had any way to contact the woman. He was about to say no when he suddenly remembered that he did. As the paramedics were loading him onto the stretcher, she had pressed her business card into Drew’s hand. He fished it out of his wallet that night and sent a photo of it to his lawyer.

Eyewitness accounts can go a long way towards proving a case. If you are ever injured in a public area and anyone else is around to see it, try to get their version of events. Ask for their name and contact information, as well.

Even cases that seem extremely simple can become complicated. Any evidence that proves your claim could be useful.

In most cases, the negligent party, or the venue where you were injured, will be covered by an insurance policy. Insurance providers are for-profit companies and will often deny valid claims to save money.

Additionally, many stores and restaurants are owned by larger parent companies with in-house attorneys. These well-funded, dedicated legal teams exist precisely to shut down lawsuits. Without a lawyer’s assistance, it can be extremely difficult to prevail in a court of law.

More Premises Liability Facts

Premises liability isn’t only related to slips and falls. Other common hazards include broken sidewalks, faulty steps, and in some cases, even violent attacks.

Property owners and managers must take reasonable steps to protect their guests from violence. In a heavily trafficked place, like a stadium, that could mean hiring security or putting-up metal detectors. Other places deter violence with lighting. Parking garages and parking lots must be well-lit in order to deter crime.

If someone is mugged in a parking lot where all the streetlights are burned-out, they may be able to bring a premises liability suit under a provision called “negligent security.”

Additionally, employers must do their due diligence when hiring workers. Say a woman is routinely followed and harassed by an employee in her apartment building; she reports the employee to building management, but nothing is done. A week later, he breaks into her apartment and stabs her.

When the police investigate the case, they discover the employee had a long criminal history, including multiple break-ins. The building managers could be found guilty of negligent security.

Let Your Legal Team Fight for You

Drew wasn’t alone as he fought to receive compensation. His legal team worked tirelessly on his behalf while he rested at home. His doctors were communicative, and his surgery went smoothly.

Plus, he had Alice. Despite his fears, she didn’t write him off as a klutz after their ill-fated meeting. She visited him often, and they bonded over Netflix binges and take-out.

Drew said he was only able to relax and enjoy their time together because he knew his lawyers were handling his case.

“If I’d been trying to do this all myself? Forget it. I’d have been a bitter man, up to my neck in legal documents I didn’t understand. I couldn’t have juggled all that and a cute girl,” he chuckles.

McDonough’s Best Personal Injury Attorney

If you were hurt on someone else’s property due to someone else’s negligence, you can pass that stress off to someone else, too.

Let the lawyers at Scott Key & Associates prove your case while you focus on your recovery. Call our office right now at 678-610-6624.

How to Prepare For a Deposition in a Personal Injury Case

April 16, 2021/by J. Scott Key

Six months ago, you were in a car accident on Macon Street in McDonough. Another vehicle struck you from behind, and since then you have suffered from excruciating back pain. The other driver’s insurance company refused to pay your medical bills, so you filed suit against them.

Today, you received a notice of deposition in a personal injury case – what does that mean? And how do you prepare?

What is a Deposition in a Personal Injury Case?

A deposition is sworn testimony, under oath. The lawyer for the opposition (usually the defense) will question you about the details of your case in order to put your side of the story on record.

Generally, the deposition will take place at the attorney’s office. You and your lawyers will attend, as well as the opposing attorneys and a court reporter.

The court reporter will record everything that is said while you are being deposed and the records may be admissible in court.

Depositions in a personal injury case usually happen during the “discovery” phase of a trial, after a lawsuit has been filed, but before court proceedings begin.

If you need to give a deposition, you will be alerted via a legal document known as a notice of deposition. This is not a subpoena or a court order, but a notice of deposition is mandatory.

Once you receive this notice, you and your counsel will set a time and date that works for all involved.

What Happens During a Personal Injury Deposition?

If you receive a notice of deposition, you may feel nervous. For most people, any type of legal proceeding is out of the ordinary and can seem intimidating.

However, with proper preparation, there is nothing to fear.

A deposition in a personal injury case is your chance to officially state your story; you will be able to give a full account of your injuries and how they impacted your life.

Though they are official legal proceedings, and a court reporter is present, depositions can feel rather informal. Still, you should be well-prepared before you attend.

Opposing counsel will be asking detailed questions, and it is important that you represent your case accurately. Any mistakes in your retelling or murky language could damage your case.

Your lawyer cannot answer for you during a deposition, but they can (and should) meet with you beforehand to go over your version of events and ask you practice questions.

The questions asked during a deposition in a personal injury case are called “interrogatories,” and they will likely fall under one of the following topics:

Background Information

The first set of questions will establish your identity. Expect to answer questions about your name, contact information, where you live, your job, your family, and potentially even your work history or educational background.

Medical History

In a personal injury case, the plaintiff must prove that the injury they received was due to negligence on the part of the defendant. Because of this, you will need to describe the state of your health before the incident at issue.

The defense will likely have many questions about your health prior to the accident. If you have ever experienced an injury or hospitalization, you will probably need to disclose them during the deposition.

These questions may feel invasive at times, but it is legal for the defense to make such inquiries. Your lawyer should prepare you for these questions beforehand, and they will be sitting-in on your deposition. If any questions do cross a legal line, they will intervene.

Account of the Accident

You will need to relay your account of the accident. Not only will you describe the incident in detail, but you will also answer many questions about it.

Expect queries such as:

What was the weather like when you fell?
What were you thinking immediately before the accident?
Did you have your phone in your hand?
Which hand was your phone in?
What kind of shoes were you wearing?
Did you trip or slip?
How wide was the sidewalk?
Did anyone see the accident?

These questions will likely seem repetitive and could go into granular detail. The defense is not only trying to get a thorough picture of your accident – they are also hoping that you will slip-up and contradict yourself.

This is the area of testimony where you should have the most preparation. Your lawyer can go over expected questions with you and advise you on the best language to use in your descriptions.

It is important that you do not omit important details, but also vital that you do not misrepresent your recollections. Be honest if you do not remember certain events clearly.

Details of Your Injuries

Similar to the account of your accident, you will also need to give detailed descriptions of your injuries and how they were treated. It will help to review your medical records before the deposition so you can give thorough answers.

The defense may ask questions like:

Which hospital did you go to?
How did you get to the hospital?
Did you see an ER doctor or your primary care physician?
Did you have any surgeries?
What were your instructions regarding aftercare?
When was your first follow-up appointment?
Did you, or are you still, attending physical therapy?

The details about your injury are crucial to your case and will help establish how your life has changed since the accident.

The Aftermath

Here, you have the opportunity to detail the ways your life was impacted by the injury. If you lost wages, are now in medical debt, were laid off, or experienced any other repercussions from the accident, you can detail them for the official record.

Be sure to include all the ways your life is changed for the worse since your injury. Do you have to spend money on grocery delivery, or a home health aide? Did your girlfriend leave you because she didn’t want to help care for you while you were incapacitated? Have you experienced depression or anxiety since your injury?

Changes to your emotional state are relevant to your case, so do not omit those details. You could be awarded damages for pain and suffering.

How Should I Behave During A Deposition?

You may feel quite nervous ahead of your deposition – many do, since most people rarely interact with the court system.

You may be worried that you will say or do the wrong thing and your case will be thrown-out.

Here are some Dos and Don’ts to consider before you’re deposition in a personal injury case:

DON’T worry about making small talk: A deposition is a legal proceeding, and you should not feel responsible for the emotions of anyone else in the room. If you want to sit quietly and focus before the proceedings begin, you should.
DO be early: You will likely be traveling to the defense attorney’s office for the deposition, and you may be unfamiliar with the premises. Give yourself as much extra time for the trip as possible so you are not late.
DON’T hurry through your answers: Your deposition is your chance to put your story on record, and you should feel empowered to give your version of events as comprehensively and truthfully as you can. When the defense counsel asks a question, take a moment to gather your thoughts before you start speaking – that way you do not misspeak or misrepresent an event. If you are asked a question and you aren’t sure what it means, you can ask for clarification.
DO answer honestly: Depositions are given under oath, so it is very important to answer questions honestly. This includes saying, “I don’t know” if you cannot recall a specific detail. If you don’t have an honest answer for a question (such as, “Which foot slipped first?”) don’t make a guess – just say you aren’t sure.
DON’T embellish: A deposition is not a good time to pull out flowery language or metaphors. When describing events, be concise and direct. If you are asked a “yes or no” question, you can answer with a simple “yes” or “no.” The lawyer may ask for a follow-up, but you do not need to provide context unless you are asked. Remember, the more you speak, the more likely the defense will lure you into a rhetorical trap. Stick to the facts and use plain language.

Help from McDonough’s Personal Injury Legal Experts

Depositions are a key element to a personal injury case. If you or a loved one is facing a deposition in Henry County and need guidance, our local attorneys can help.

Scott Key has represented hundreds of Georgians, and he is dedicated to using his criminal defense background to assist his clients. His unique perspective allows him to approach cases creatively and thoughtfully.

Before your deposition, contact Scott Key & Associates at (678)610-6624 to schedule a consultation.

How Troubled Blood Can Help Lawyers

March 24, 2021/by J. Scott Key

Playing Offense on Discovery

I just finished Troubled Blood, the latest installment of a series of detective novels written under a pen name by J.K. Rowling.

The main character is a private detective named Cormoran Strike, who solves interesting cases in London. The series is five books long, and I eagerly await the next novel.

A Lesson from a Fictional Detective

I think Strike has a few things to teach lawyers about litigation – particularly discovery.

Strike doesn’t have the power to issue subpoenas, depose witnesses, request documents. Instead, he navigates his cases based on skill, public information, the internet, and voluntary interviews.

Too often, we play defense when it comes to discovery.

In criminal cases, we wait to see what the State or the Federal government sends us.

In civil cases, we are often formalistic in our approach. Discovery becomes a game of withholding and motions to compel.

A Modern Way to Approach Discovery

Our traditional definition of discovery has its place and is often the only way to get to certain information. But we often neglect the information we can learn simply by talking to people, asking for documents, and using a little skill and ingenuity.

Sitting down with people. You’d be surprised how often people will talk to you – not just friendly witnesses but witnesses whose interests are adverse to your client’s.

An important first step in a case is to generate a list of names. Ask you client to name any witness who might have any information about the case and to provide you with their contact information.

Then take a look at initial law enforcement reports, accident reports, incident reports, and names and contact information. Look at warrant applications, search warrant applications, and indictments. Start a centralized list of names. Note even the names of law enforcement. Then see who will talk to you.

When I was in my third year of law school, I took the State’s witness list, called all the numbers, and made detailed reports of what the witnesses told me. I learned a critical piece of information that not even the state seemed to know. And the lawyers I was working for used this information to win the case. That firm offered me a job, where I came to work out of law school. I stayed there until I started my own firm. A couple of words of warning, be careful either to record interviews or to have an assistant with you so that you don’t end up conflicted out of a case. Also, be careful about interviewing children.

The Internet. I have learned, over the years, that people often lack a filter regarding what they share on social media. To the extent that you can, you should check in on what clients are posting on Facebook, Twitter, and other social media outlets.

People will often talk about the case on social media or will reveal character issues on social media. There is much to be learned from what people choose to announce publicly.

Again, proceed with caution. Be careful not to violate a bond condition on your client’s behalf and not to do anything false or misleading to gain access to information. I try to stick to what any member of the public can see.

Open Records. So much information is available by an open records or FOIA request. I’ve obtained 911 calls, radio communication, and CAD reports by open records request.

And, I’ve often gotten access to documents, CCTV recordings, and other information simply by identifying myself and asking. People often want to be helpful or would prefer to simply give you access to things to avoid legal process.

Lastly, Follow the Golden Rule

I’ve done so much over the years simply by asking nicely.

In fact, there have been many cases that we have worked up better than the State or our opponent. It is not uncommon to already have created the same or a better discovery file than the one the State gives us.

And, often when it comes to a motion to compel, the information I already have at hand often persuades my opponent to go ahead and give me what I am entitled to because I already know so much by investigating the case informally.

Informal discovery is valuable on any case. It works for Cormoran Stike, and it can work for us, too.

Advice For Lawyers: Thoughts on How Clients and Witnesses Should Dress for Court

March 4, 2021/by J. Scott Key

I recently wrote about the importance of individuality for how lawyers dress for and act in court (within the confines of modesty). And I mentioned that I would post a later blog on how clients should dress for court.

Hope For The Best, Expect The Worst If You’re Not Explicit

I am far from an expert on fashion, so I turned to some colleagues on social media. And the matter is more complex than I imagined.

First were the stories of disaster. A current Supreme Court Justice, back when she was in private practice, advised a successful CEO to dress for a deposition the way she dressed for work. The client showed up in workout clothes, flip flops, and had her hair in a ponytail.

Another lawyer told a client to “dress nicely for court.” The client came dressed in a tuxedo and brown work boots. The client doubtless believed he’d followed the lawyer’s advice.

Other lawyers have said that they’ve told clients to dress like they would for church. But results may vary. Church has become a more casual place. Also, some clients also go to synagogues, mosques, temples, or zen centers instead of church.

I’m Not Always Right Either

I have been guilty of erring in the other direction. In Episode #1 of The Advocate’s Podcast, Denise de La Rue and I spoke on what a mistake it can be to dress clients up like one of the lawyers.

The client may feel uncomfortable and may actually make a bad impression if you are trying to soften the client’s image.

Now It’s About the Zoom Room Backdrop as Well

In the era of Zoom court, the notion of dressing up extends beyond clothing. Clients also need to be mindful of the room where they are when they join the video call.

7 Things To Do Before Court

The most important piece is to avoid miscommunication. The one thread that ran through my answers on Twitter was miscommunication. The lawyer thought she’d said one thing. The client heard something else.
One lawyer offered a helpful tip. She suggested that the client preview the attire and Zoom background before court. This way everybody is on the same page.
Simple is better. For men, a nice pair of pants and a nice button-up shirt are almost never a bad choice. A sweater over a collared shirt is always a good look.
I am a guy, so I ask a female colleague to advise females on how to dress.
It’s also important to think about why you are in court. If you are in court for a white-collar offense of significant theft, designer labels are not the best idea. Also, no clothes advertising your favorite drug, beer, wine, or spirit.
No matter how proud you are of your tattoos, colorful hair, or piercing in places other than the ear lobe, judges tend to be conservative. It might be a great time to dial all of that back and leave self-expression to buildings other than the courthouse. There is also a practical piece. You will set off the metal detector. Court is stressful enough without you holding up a line to put jewelry into a nasty plastic bowl from various bodily areas.
When on Zoom, we can debate the best location to initiate the call. But the client’s bed should not be visible in the picture. Meaning the client should not be in the bed. The client should also not be driving or in a car for court. I know, it seems odd that I have to say that, although it happens a lot.

My takeaways from my online discussions are:

Dress is an area rife with attorney-client miscommunication.
Be clear on your advice.
Preview if necessary.
And while comfort is important, courts are very conservative and traditional.
Prepare your client accordingly.
Preview if necessary.

I look forward to hearing (and seeing) your comments.

The 3 Best Tools Attorneys Use

January 14, 2021/by J. Scott Key

Lester Tate joined me on my most recent podcast episode of The Advocate’s Key to discuss a variety of topics. A few months in as a podcaster and I am just beginning to see the value of these monthly conversations.

They have become my monthly “dinner party” with some of the best legal minds in the nation.

This episode has so many great points, although I keep going back to Lester’s description of what it takes to be a great attorney.

What Tools Do the Best Attorneys Use?

Scholarship: You have to be a legal scholar. You have to dedicate a certain part of your life to knowing the law very well. Researching the law is kind of a meta-skill. The more you know how to find the law, the more law you read, the more you find yourself revisiting familiar places. You make connections. Novel approaches occur to you.
Courtroom Skills: You need to know what to do when you get inside the courtroom. You have to be able to connect with people, anticipate things that might arise, figure your way out of ambushes, and know the temperature of the room you are in.
Political Savvy: So much of law is politics. Lester said, “private practice of law is supposed to be a profitable enterprise. We did this because we want to help people, but we want to make a living just like a carpenter, or a truck driver, or a doctor or a stockbroker does.” There is also an element of politics in being able to network, to have a community in which you work.

How to Become a Great Lawyer

Good lawyers have two of these three. The best have all three. But the best among us are rare. When I asked Lester where he came up with the three, he said he took the idea from the five-tool technique for evaluating baseball players.

If you could construct a great lawyer, it would be someone:

Who has done all the research before coming the court,
Someone who can execute a strategy in court based upon that knowledge,
Someone you’d want to go to lunch with during a recess in proceedings.

The lawyers I admire most have all three tools. And the three-tool piece is a good way to check in with myself to make sure I am continuing to grow in my time as a lawyer.

My podcast lets me connect with good friends, mentors, and others I want to introduce your to.

I love that Lester gave me a helpful rubric to use in evaluating myself.

Who’s On Your Team?

It is also a helpful way to think of constructing the perfect trial team. Imagine putting together a team of lawyers with all three skills or an all-star team of the very best on particular area. Now, that’s something to think about!

A Lawyer’s Look at Unconventional Advice About Being Unconventional

January 7, 2021/by J. Scott Key

Over the holidays I had lunch with a law student. The setting was perfect — great food and excellent cocktails. She had great questions about legal practice and the conversation was delightful, although there was one topic that stood out and I wanted to share it with you.

Lighting Up the Whole Room

This student entered law as a second career. She comes from a very successful career in finance. Having grown up in Europe, she has had an interesting back story. She also has an impeccable fashion sense — a star quality. I noticed her interactions with staff. She connected with everyone. The bartender even sent us over a dessert drink to try.

We talked about her one day becoming a trial attorney in Georgia and she asked me how much about herself would she have to change to one day do jury trials in Georgia — including rural parts of the State.

My advice — (get ready) ignore conventional wisdom! I told her to literally pay no attention to what she would soon be told at CLEs and trial advocacy conferences in terms of what is “too fancy.”

What They Tell You & What You Do

I have gone to these talks my whole legal career. And they always tell you things like:

Drive a pickup truck to and from the courthouse
Don’t wear cufflinks
Don’t have monogrammed shirts
Wear okay suits but not suits that are too nice.
Don’t wear pinstripes

All of this advice is well-intended. It is aimed at making us likable. The idea here is not to use things like clothes and other items as a barrier between the jury and you.

Lawyers are forever angsty about being too fancy.

But I think the whole point has gotten lost along the way. Today’s trial advocacy seminars have turned out a cadre of drably-dressed advocates who can’t fit their truck into the courthouse parking lot. It is as if factories have issued trial attorneys and set them loose on our courts.

My Advice to New Lawyers

My advice to her is not to change a thing. Do not try to fit some arbitrary mold. The whole point is authenticity. Juries connect with us best when we are at our most honest about who we are. Clients and juries want to see authenticity. And I think they expect and appreciate personality (as long as it isn’t tacky or awkward).

I have every confidence this lawyer could do well in a courtroom anyplace in Georgia.

And just so I am clear, if I had had lunch in a barbeque restaurant with a lawyer in western wear who drove to the place in a huge truck, my advice would be the same. Keep the truck. Try to incorporate the western wear into the court wardrobe. Don’t change a thing. Authenticity and connection are the name of the game.

Know When to Say When

Note that I am not saying that boundaries don’t exist. Modesty and appropriateness are still very much the standard. What I am saying is that the people who told you how to dress by an overly-prescribed code really are not qualified to tell you what is best for you.

Let us not forget that juries are great at detecting authenticity. If you love your pickup keep it. If you don’t like them, then don’t drive one to court just to be seen in it.

PS: Also, I am speaking to lawyers here, not clients. Clothing for court for clients is potentially a topic for a different blog post.

How We Won the Rice v. The State Case

January 4, 2021/by J. Scott Key

The trial was not starting out well at all. At the end of a half-day of motions, I had won exactly zero. All my motions had been overruled. All of the State’s had been granted.

A jury was waiting to be selected. And the motions were important. In fact, my sole defense had been taken away from me during all of those pretrial motions.

Through it all, the judge was personally treating me with respect. Opposing counsel was eviscerating my defense but was personally being nice.

It was at this point that I made three critical decisions.

I would do nothing to make matters worse. I refused to get emotional about the situation. I refused to allow such words as this is so unfair to cross my lips. I would not even think of such thoughts.

Panic would not be allowed to set in.

Emotionally, I would manage this all.

Tactically, I decided that we should forego a jury trial that we now could not win. I requested a bench trial. I also made concessions that would not harm us. The things that didn’t much matter, I stipulated to.

Foundational objections were not made when I knew that requiring the foundation was an academic exercise. I made my record, but I also took a no-nonsense and pleasant approach to things that didn’t much matter.

I would make my record – my defense was being gutted – I made sure to put a solid proffer on the record.

In a matter of months, I knew that everything would ride on how well I could describe my defense right there in that moment in that courtroom. I was specific in my description of the evidence as I knew it, the legal basis for my defense, and why that defense was essential. I made sure that I committed the judge to an actual ruling.

My strategy became one of damage of control and preparation for the appeal.

I committed to being my best. I treated the trial as essentially winnable when it commenced. Having located those things beyond the sphere of my control, I made sure to give my very best to the things I could still shape.

That meant giving the opening, the crosses, the directs, and the closing my all. I ended up winning on a big portion of the case at trial and with a sentence that was better than the pretrial recommendation.

And I had a beautiful record for appeal. The case is Rice v. State. It was a great win (though the State has applied for certiorari).

It demonstrates a pattern in how cases work. You win and lose 100% of your appeals at trial. Appealing my trial was an amazing luxury. Appealing a case when I worked on the trial team is also the best experience ever. It is why I love working on a trial team with my role as the motions and objections guy. And it’s why I think I see a bigger game than purely trial litigators do. The verdict is halftime. It is not the end of the fourth quarter.

I loved the win for my client and I loved it because it felt like something I’d crafted and built.

When Is It Time To Hire A Personal Injury Lawyer?

October 5, 2020/by J. Scott Key

Is it any wonder that, according to Avvo, “59% of people surveyed have tried to solve their legal issues by themselves?” And while 22% of Americans had some sort of legal problem in the past, only 12% hired a lawyer. People end up in legal situations well over their heads due to an unfortunate and largely inaccurate stereotype about lawyers and the legal profession.

I want to spend a few moments trying to help you see past the stereotype and (I hope) convincing you to consult with a personal injury lawyer when the situation calls for it.

There is a stigma attached to lawsuits, the plaintiffs who file them, and the lawyers who represent those plaintiffs. If you know a lawyer joke, it is likely a plaintiff’s lawyer joke. In a Gallup survey, 51% of those polled said that “we would be better off with fewer lawyers,” with 74% agreeing that “lawyers are more interested in winning than seeing justice served.”

Bottom line — while many Americans will find themselves in significant legal situations, most will try to go it alone, often with disastrous consequences. Abraham Lincoln said long ago that a person who “represents himself has a fool for a client.” Self-representation can lead to financial disaster, as the defendant and the defendant’s insurance company will be represented by or have access to counsel.

Why do roughly one in four Americans end up in a situation that involves the legal system? Unfortunately, is not at all uncommon for children to be a victim of crime either in school or in youth activities.

Education Week reports that in the 2017-2018 academic year 5.2% of K-12 schools reported incidence of sexual assault, a number that is rising from previous years.

When youth activities such as sports and church are factored in, one out of every four boys and one out of every six girls are victims of sexual abuse before age 18.

Factoring out the number of Americans who are the victim of intentional criminal acts, in 2018 there were 167,127 preventable deaths, 46.5 such injuries, at a cost of over a trillion dollars. In that year, there were 4.5 million automobile injuries that required medical attention resulting in 39,404 deaths.

With that said, and perhaps with more of an open mind, when is a good time to hire a personal injury lawyer?

Let’s start with what it means to “hire” a lawyer.

Lawyers are often thought to be expensive, and in some instances, they can be. And retaining counsel is commonly thought of as engaging the person in some formal way. But often it can be helpful to get a lawyer on the phone or in a brief email conversation for informal advice on how to handle a situation.

Personal injury lawyers typically work on a contingency basis (you do not pay them. They take a percentage of whatever judgment they win for you). This means two things. First, the lawyer is unlikely to manipulate you into bringing a baseless suit because it will not be in the lawyer’s interest to do so.

However, if you establish a relationship with a lawyer early enough, the lawyer has a financial incentive to help protect you from making a mistake that might either sabotage your matter or diminish its value. And it will likely not cost you anything to have an initial conversation with a lawyer.

If the other side has access to lawyers, then you should too.

A good rule of thumb for when it is time to hire a personal injury lawyer is if your opponent has a lawyer or has access to counsel. If you are bringing a claim against a corporation, a party with insurance, a governmental entity, a youth association, a church, or a school, they will either have an attorney, access to attorneys, or will have a set of policies and procedures in place to deal with you that was created by attorneys.

Attorneys are ethically bound to act with zeal to protect the interest of their clients. They are educated in the law. And they often have a depth of expertise in particular industries. And they have seen many situations just like yours. I know that the crisis feels deeply personal to you. But the situation has likely arisen an infinite times before. This means that you could very well be out of your depth. And even if you will be treated fairly in the matter, at some level you may worry that you were taken advantage of. A lawyer can offer you peace of mind at the very least and a more even playing field at best.

If you feel strong emotions about the matter, a lawyer is a good idea.

Even lawyers know to use lawyers when they are in a legal situation. If we factor out, experience, knowledge, intelligence, and legal acumen, and assume that all of those things are even, you likely are not objective about the situation. Counsel is not in the situation and can likely think more clearly about it than you can. Emotions cloud judgment. When you have strong emotions about a situation, your thinking is neither deep nor clear.

Emotions can make you unrealistic in the goals you set.

Your emotions may lead you to interact with your opponent in a way that is detrimental to your success. And, make no mistake, your opponent’s lawyer or claims specialist will not feel emotional about the matter. They will be highly rational about matter.

If you are one of the millions of Americans who find yourself in a situation where you need a lawyer, you should not also align yourself with the amazingly high percentage of Americans who forgo representation.

If the matter is important if your opponent has a lawyer or access to counsel, and if the subject at hand makes you feel emotional, you should hire a personal injury lawyer to protect you, advise you, and shepherd you through the process.

How To Hire A Personal Injury Lawyer

October 1, 2020/by J. Scott Key

The field of personal injury law is saturated. It is difficult to take a drive and not see the billboards of people in suits next to photographs of colliding cars. Those billboards boast of large settlements and judgments. And they almost always have some fine print at the bottom. You may see these same lawyers on social media outlets or daytime television.

If you are looking to hire a personal injury lawyer, it seems that there are too many choices. According to IBISWorld, there are 93,000 personal injury lawyers in the United States and 56,000 businesses that serve that industry. Personal injury is a $38-billion-dollar market. And it is filled to savvy marketers to compete for your attention.

And, if you have never had any experience with the legal system there is little guidance available to help make a decision. In this article, I hope to provide you with a few guidelines to guide you through making a hiring decision.

1. Not All Lawyers, Even Great Lawyers Are Right For All Clients.

When you hire a lawyer, particularly on something as potentially complex as a personal injury matter, you are not hiring a mere technician. You are entering into a relationship with someone that may span years and many emotional highs and lows. So, the first and more important criteria are your level of comfort with the person who will represent you.

To quote The American Bar Association “the first qualification is that you must feel comfortable enough to tell him or her, honestly and completely, all the facts necessary to resolve your problem. No one you listen to and nothing you read will be able to guarantee that a particular lawyer will be the best for you: you must judge that for yourself.”

The primary guide should be how you feel about the lawyer. There must be mutual trust if you are to put the lawyer in a good position to help you. And the elements of that dynamic are largely intangible.

2. Know What Your Goals Are And Envision How You Would Like To Achieve Them.

While this step seems obvious, it is often overlooked. Ask yourself this question: “if the lawyer I hire is as successful in representing me as I can possibly imagine, what would that success look like?” Spend some time with that question. Write down some answers.

Often what drives us is not money or at least not just money. Sometimes, the driving force is a sense of justice, the need to be heard, to achieve closure, or to feel vindicated. All of these needs are basic.

The system’s idea of making you “whole” is largely measured in dollars. And the system can be a frustrating place. But whatever your goals are, it is important to name them. And it may be that your lawyer’s listening ear is the main way that the system hears you. And once you know what your goal is, try to envision what the journey would ideally be like. How would you like your lawyer to travel there with you? If you do this level of work early, it will (we hope) foster a productive conversation in which expectations are named and adjusted. And you can know a bit better what you are about to undertake.

3. Organize Your Material.

As you prepare to look for an attorney, you should gather as much as possible and organize it. If you have been seen by a doctor or mental health expert, prepare a list of those professionals as well as their contact information. Gather and organize incident reports and accident reports.

If you are physically injured or your property was damaged, do all you can to document those things. If there are key witnesses, either law enforcement or laypeople, keep a list of those names and contact information as well as a summary of what those witnesses might say. Were you interviewed about the incident? Note the circumstances of those interviews. Are there photographs, text messages, emails, or other documents related to the matter? If so, do all you can to preserve that information. Journal or keep notes of contact with people are things as they happen. Your memory will fade over time.

When you speak to law offices, tell them that you have this material. Also, gather all insurance information that you have, key addresses, and identifying information about yourself. Have available any insurance contracts that you have on hand.

4. Interview Lawyers.

As you interview lawyers, take note at how you feel about the level of engagement. How prompt are they at getting back with you? How comfortable do they make you feel? Do you feel like the process is being demystified for you if you were confused before? Is your case being handled by a call center? Do you feel like your case is part of an inventory, or do you feel like a human being? Do you feel heard? Does you feel judged or understood? Do you feel pressure to make a decision?

5. Understand The Terms Of The Representation.

If a personal injury lawyer undertakes to represent you in a matter, you will likely not have to pay him anything for the representation unless your matter is successfully resolved, in which case the attorney will take a percentage of your recovery. And costs of litigation will be taken from the settlement or judgment at the end of the case. The lawyer should sign a written engagement with you that spells out how the lawyer’s compensation will work. And the lawyer should also be able to explain the terms to you in a way you understand.

Whenever you have a legal problem, the road can be unclear. With a market as saturated as the personal injury market is, the process of hiring a lawyer can be intimidating. However, with a clear goal in mind, with your materials organized, and with some good questions, the process can be more manageable. While the perfect lawyer may not be out there, the guidelines will help you find the lawyer who is perfect for you.