Winning cases is a team effort. If you are dedicated to building a trial-oriented litigation practice you will need to surround yourself with team members who can help you review documents, digest depositions, help take witness statements and ultimately help try the case. There is too much going on in a civil case to do it alone.
Envision yourself as your litigation/trial team leader. You are responsible for having the overall endgame in mind and making sure each team member stays on task and knows what other team members are doing. A great tool to accomplish this is a “case retreat”. Indeed, cases headed to trial may need several team meetings in a retreat format. Keep focus groups and mock juries in mind as a means to test whether the thinking that comes out of a retreat is on point.
Plan on setting aside a half a day for an initial case retreat meeting. Make sure your secretary/legal assistant, and any law clerks and partners or associates on the file who will be taking discovery or attending trial, will be at the case retreat. Turn off cell phones and eliminate distractions. Bring all your case material. Use a white board with dry erase markers.
Plan on addressing the following topics:
1. Claim and defense elements.
Whether you represent the plaintiff or the defendant in litigation, you ultimately have two audiences: the judge and the jury. You will never get to address the jury as a plaintiff’s attorney unless you survive summary judgment and a motion for directed verdict (or a motion for judgment as a matter of law in Federal practice). Here is where basic competence in the substantive area of law comes in: you’ve got to know the elements of the causes of action and affirmative defenses. You need to chart out the elements on a white board, a Word-created table or in the “issue” module of a case database program e.g. CaseMap, FactBox or CaseFleet. Note the facts that will support each element of your case. Don’t simply chart out the facts favorable to your side. Chart out the facts you expect to hear from the other side. Solicit input from every team member.
The second audience is the jury. Your jury may have to deal with the elements when it renders its verdict but it is going to expect you to tell a compelling story in order to care enough to render a verdict in your favor. You will need to develop a theme in your case as well as think about how you will cast your opponent as the “villain”. Check out Storytelling for Trial 101, the first in a series of articles we’ve posted about storytelling theory in litigation. We will be coming out with another post on that topic soon.
3. Case documents.
Take stock of the documents you have in hand. You will need to separate the wheat from the chaff. Designate the most important documents as “hot documents” and tag those in your organizational system. Tie the documents to authenticating witnesses as well as case issues and elements. Separately, create a document wish list of items in your opponent’s possession. Be sure to also think about case-relevant documents that may be in the possession of third parties. In pre-suit, take advantage of internet search engines and listservs to gather information. Use your subpoena power after suit has been filed. As always, talk to your team. Solicit their ideas about document retrieval and storage.
4. Focus on the witnesses.
Too often civil litigators get bogged down in discovery motion practice or letter writing and pay too little attention to the core task of talking to witnesses. At your case retreat be sure to list out the names of all potential witnesses (in consultation with your client) and catalogue what you think each witness will have to say. Brainstorm the names of other potential witnesses. Prepare a list of witnesses that will need to be interviewed. Keep in mind that there are ethical limitations on who you can talk to outside the format of a deposition. We’ll explore that further in another post. Develop an interview or deposition plan with your team.
Most of us are too buried in the day to day to take a 30K view of our cases. Case retreats are an ideal setting to grab hold of the big picture with your team and gain a winning edge.