Winning Through Preparation – Proactive Discovery
King County Bar Bulletin, December 2011
“The commander must decide how he will fight the battle before it begins. He must then decide who he will use in the military effort at his disposal to force the battle to swing the way he wishes it to go; he must make the enemy dance to his tune from the beginning and not the vice versa.” –Viscount Montgomery of Alamein
Montgomery might have had his problems with various military leaders and presidents, but even they cannot fault him for his dogged determination to be better prepared, better organized, and better equipped than anyone else on the battlefield.
Everyone says “plan ahead,” but what that entails can often be a mystery. Getting your opponent to “dance to your tune from the beginning” of the litigation battle is critical and this article is geared to helping you do just that.
First, it is never too early to come up with a plan Attorneys tell us, “I can’t write my story yet – I don’t know what the evidence is going to show.” Or “I can’t come up with my strategy until after I start discovery.”
Really? Assuming there has at least been a complaint of some kind (or allegations made in a letter, phone call or meeting), you know enough to get started. Waiting until the middle, or worse, the end of discovery means that you are now stuck with what you found as opposed to what you wanted to find or could have found.
A plan does not mean you cannot deviate or amend the plan – we all know what they say about the best-laid plans. However, a plan is better than no plan at all. There are numerous benefits to a proactive approach to discovery as opposed to a reactive approach. The old saying, “Own the language, own the argument,” is very applicable here.
Early case narrative development allows you to gain important ground in depositions by getting key witnesses to adopt language that is beneficial to your case. We have also seen instances where a judge has adopted key terminology that favors our case because it was laid out early in the trial briefing and effectively framed the issues in a favorable light.
Second, create your plan by answering the following questions. What do you know or believe are your strengths and weaknesses? Who are the major players in the story? Where does your story start? What happened in your story? Where do you want it to end?
The most effective way to tackle these questions is to huddle your trial team and associates into a conference room and systematically brainstorm lists for each of these categories. In sessions with our clients, we use the large, 3M notepads and post them on the walls around the room. The quick visual reference helps in the development of an effective narrative that accounts for each of the factors on the lists.
Strengths/Worries: Even though it is early, you probably have an idea about what keeps you up at night and what you think might end up being the fact that wins you the case.
Early in the litigation, honestly assessing your strengths and weaknesses allows you to focus your efforts on uncovering the evidence that will actually make those strengths an integral part of your case, and on the evidence that might be able to turn the worries into a distant memory. If, however, you do not start keeping track of these early, you might find yourself accidently stepping into areas where you don’t want to go or avoiding places that should have been explored.
The Players: Stories have characters and the choice of the central character for your client’s story has significant implications for the rhetorical environment of deliberations. As in the case of “The Wizard of Oz” and the Broadway musical “Wicked,.” the same story can be told from different perspectives, with each perspective fundamentally changing the focus by evoking alternative value/principle sets. It is important to consider how the choice of the main character in your story influences the values jurors will use to frame the issues in. your case.
Additionally, remember that deliberations are zero-sum: If jurors are talking about one thing, they are not about something else. So your choice of a central character is largely a question of what you want jurors to talk about the most in deliberations.
Start of the Story: Much like the choice of your central character, the starting point for your story can play an important role in framing the issues. Stories do not always start “at the beginning.” If you are defending and the complaint starts with the accident, the breach of contract, the development of the infringing technology, it’s probably fair to say your story doesn’t start there. If you are the plaintiff, your story might not start with the complained of behavior either. Selection of the starting point of your story will help you figure out how far back you should go, how much narrowing you might want to do, and what events could be avoided altogether.
Story Chapters: Granted, you don’t know everything that may or may not end up in your story, but you most likely have a preferred version. If you were writing that story, what would it include? The best stories have fidelity (ring true with what people believe to be true) and cohesion (fit together without bothersome gaps or holes). Even without all the facts, there is probably a preferred story that people will naturally gravitate toward. Writing that story allows you to search for the support, as opposed to having to write the story that you “ended up with” because certain questions weren’t asked or documents were ignored or not asked for.
Once you have determined the starting point of your story, try to outline the body of the narrative using five to eight chapter headings. In other words, boil the essence of your story down to chapter-by-chapter heading, which can then serve as an organizational outline for discovery. For any given chapter, you can identify what exhibits and testimony are necessary to effectively tell that part of the story and then go out and find what you need in discovery.
End of the Story: The end of the story is victory; it is the jury (or judge or arbitrator) finding for your client. Everyone (even judges and arbitrators) wants to render a psychologically satisfying verdict. In litigation, this satisfaction is often derived from a sense of furthering justice.
The question then becomes, “How does a verdict in favor of your client further justice?” The best way to answer this question is through an activity in which you and your trial team finish several iterations of the following sentence (using as few dependant clauses as possible): “A verdict in favor of my client(s) says/accomplishes ….” For example, a defendant might say, “A verdict in favor of my clients says that with accusations, comes responsibility – responsibility to prove your claims.”
Focusing on these issues early in your case can help create litigation’s version of the home-field advantage. When opposing counsel falls into the trap of arguing on your turf (or to paraphrase Montgomery, “dancing to your tune”), their hurdles are higher.
It is important for attorneys to recognize how much influence they can have over the discovery process and the “shaping” of the evidence and testimony. A reactionary approach to the discovery process cedes control of the issues to the opposition and risks putting your client at a significant disadvantage.