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Noyes: A short phone call can change the dynamic of a case

May 7, 2014
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Indiana Lawyer Focus

By Jon Noyes

During the summer of last year, I was supporting litigation in a rather unfortunate product liability case. The product at issue had exploded into our client’s face, but the explosion caused the product to shatter into pieces so tiny that only a small portion could be recovered. The rest of the product turned to dust. As time pressed on, it became painfully clear that we simply did not possess enough of the recovered product for our expert to complete the testing he needed to opine that the product was defective. After all, there cannot be a product liability case without a product.

noyes Noyes

It was only after going back to the drawing board that we found a solution. In initial interrogatories, we asked the defendant whether there had been any other complaints of the same type of product exploding during use. As it turned out, there were two. I entered the individuals’ names into the Public Access to Court Electronic Records system hoping that there would be something, anything, giving us a lead as to where to go next. Luckily, one of the other individuals filed suit against the same defendant in another district.

I called the plaintiff’s attorney on the other case hoping to trade some ideas on moving forward. The attorney was also faced with the problem of a disintegrating product, but had found an expert with the specialized knowledge required to render an opinion. He had even deposed one of the defendants. The attorney gave me the name of his expert, we traded non-protected information, and I directed him to some cases useful in defeating an oncoming dispositive motion. Our firm got in touch with the expert and hired him. The rest is history.

The point of this story is that a challenging issue can often be resolved by simply communicating with an attorney that has encountered the same issue or something similar in the past. All it takes is picking up the phone and making the call. Attorneys who have experienced these tough issues can help with propounding targeted discovery seeking seemingly elusive documents, providing deposition transcripts of adversarial parties and their experts, forming legal arguments, and finding useful cases or briefs needed to win motion practice. These attorneys may also have the added value of hindsight if the issue was disposed of in their case.

Most importantly, it never hurts to hear someone else’s perspective on similar issues. Another attorney may be analyzing similar factual and legal issues, but have a different perspective regarding the best way to move forward. Hearing the attorney’s perspective and adding your own to the discussion helps both parties round out strengths and weaknesses of their respective cases. In fact, it can be a cost-effective and efficient form of litigation support.

There are a number of ways to make use of other attorneys in this way. Listservs are the most obvious medium. They often draw from large pools of attorneys and can cover issues ranging from broad litigation strategy to specialized bodies of law. However, Listservs are only as strong as their members. If the majority of the members are active, then Listservs can thrive. If the majority of members are inactive, or relegate Listserv emails to a rarely visited folder, then its utility can diminish greatly. Moreover, although a Listserv email can provide some insight into a difficult issue, a personal conversation may be a more productive medium for a fluid exchange of ideas.

A combined use of discovery and electronic court records is another way to track down support. Interrogatories requesting the names of other complainants, or captions of other cases, concerning similar issues provide a cost-effective means of securing this information. However, opposing parties are often reluctant to provide this information and, in fact, may object on relevance grounds. For individuals and smaller businesses, a quick search on Odyssey or PACER may also prove fruitful. These references allow attorneys to see whether an opposing party is involved in any other lawsuits in participating Indiana counties or at the federal level. PACER is especially helpful because it also allows individuals to conveniently download documents from a case’s docket at a reasonable cost.

These methods make for great jumping-off points, but the onus is on the attorney to make the phone call. After all, the practice of law is, at its heart, a social profession that builds from communications with others. We use authority and communications with our clients and witnesses to make arguments to the court and our adversaries. Opinions are crafted and settlements are agreed on from those arguments; the former become new authority. Other attorneys then use that new authority and the cycle continues. Networking with other attorneys on substantive issues is a natural extension of this cycle as it allows us to broaden our base of communication and, in doing so, better serve our clients. All it takes is some elbow grease and a phone call.•

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Jon Noyes earned his J.D., cum laude, from the Indiana University Robert H. McKinney School of Law in 2013. Jon joined Wilson Kehoe Winingham as an associate attorney in 2013. The opinions expressed are those of the author.
 

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  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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