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    Civil Procedure

    Responding Competently to Incompetently Drafted Pleadings

    Posted by Lee P. Dunham on May 6, 2021 at 12:21 PM

    Lee Dunham—Senior Attorney, National Legal Research Group

                As most seasoned practitioners are all too aware, it is often more time- consuming and frustrating to litigate a case against an incompetent pro se party or opposing counsel than it is to oppose a good lawyer. A litigant who is sloppy, mentally unwell, or who has very little understanding of the law can simply invent fictions faster than a competent and ethical attorney can refute them. Luckily, such a litigant often reveals his or her incompetence immediately through his or her pleadings. The best way to limit wasted time is usually to attempt to dispose of as much of the case as possible “on the papers.” Dismissal is, of course, the ideal result, but even if dismissal is not possible, it is still better to force the opponent to proceed on “cleaned up” and comprehensible pleadings without irrelevant statements or unsupportable claims.

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    Topics: civil procedure, Lee Dunham, drafting pleadings, Federal Rules of Civil Procedure, incompetence

    CIVIL PROCEDURE: The Attorney Testimony Rule—Attorney Affidavits and Summary Judgment

    Posted by Lee P. Dunham on December 1, 2016 at 9:18 AM

    Lee Dunham, Senior Attorney, National Legal Research Group

          Model Rules of Professional Conduct Rule 3.7 contains the well-known prohibition on lawyer testimony known as the "Lawyer as Witness Rule" or the "Attorney Testimony Rule." It provides:

    (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

    (1) the testimony relates to an uncontested issue;

    (2) the testimony relates to the nature and value of legal services rendered in the case; or

    (3) disqualification of the lawyer would work substantial hardship on the client.

    (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

    Ann. Model Rules of Prof'l Conduct R. 3.7 ("Lawyer as Witness").

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    Topics: civil procedure, Lee Dunham, attorney testimony rule, Rule 3.7, professional conduct

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