Today, I want to talk about using samples when drafting work product. Generally speaking, it’s something you should always try to do. Most everything you’re doing as a lawyer has been done before. You should absolutely take advantage of that work – and many clients demand that you do – but you need to do so thoughtfully. Don’t fall into the same trap as many young attorneys who blindly follow whatever was done before without thinking critically about how the document should be changed to fit their current case.
What do I mean? Here’s an example:
You are asked to draft a deposition notice in a federal case. Senior attorney directs you to a sample from another case and says, “This should be super easy and take no time at all! Just update the notice – you know, change the witness name, date, and location and it should be good to go.”
You go back to your office, do exactly that (edit the name, date, and location), and flip it back to senior attorney. That was easy!
Most of the time, that would be the end of the story. Except for this case. Because what you failed to notice is that the prior deposition notice was for a third party and your witness is a party to the case. This means the earlier notice was served pursuant to Federal Rule of Civil Procedure 45 (third parties), not Rule 30 (parties).
Now, this may not seem like a big deal to you, and I agree. It’s not the end of the world. The opposing party might not even notice the mistake, and regardless, all you need to do to fix it is to serve an amended, corrected notice. But, if the senior attorney catches the mistake and you do not, your reputation will take a little hit for something incredibly silly.
But wait, you say! I followed instructions! I updated the three pieces of information senior attorney mentioned! Why is my reputation taking a hit? Two reasons. First, senior attorney might not remember that they told you to edit the name, date, and location. And don’t even think about reminding them unless you want to look petty in addition to careless. Second, even if senior attorney does admit they could have given better instructions, it’s still on you to own all your projects and make sure that you produce correct work product. Don’t assume you will always be given perfect instructions.
Here are three things you should always watch out for when updating an old document for a new case:
- Double check the basic document information: case caption, date, letterhead, etc. Make sure it is updated throughout the entire document.
- Check local court rules, including your judge’s rules, for changes or differences since the last document was filed.
- If you’re relying on case law from the prior document, make sure it is still good law.
Most importantly, think critically about the document and whether all of its content makes sense for your current case.