Who's Leading Your Team?

The trial partner responsible for your matter should ideally be committed to sustained involvement at a high level of detail to best take advantage of the opportunity created by a well-drafted case blueprint. The correct judgment calls on what evidence to pursue, how to pursue it, and with what intensity and allocation of resources is often what creates case efficiencies and leverage over your adversary, while avoiding the type of common pitfalls we chronicle in the section Common Pitfalls below.

Methodical reinforcement of your strongest positions in a way that creates usable evidence at trial, while at the same time making the proper call to shelve other case leads, requires both trial experience and an ongoing command of the case details. To fully appreciate the interplay and potential conflicts in the available documentary and witness proof, the assigned trial partner should consider interviewing key witnesses at the outset and personally reviewing the critical initial document population.

It can be difficult to capitalize on the soundest of case blueprints if the trial partner is only managing a larger than necessary hierarchical team of associates and younger partners who may lack the trial experience to determine what information is of greater or lesser relative importance and how to develop it in deposition so that it will be both admissible and persuasive at trial.

Common Pitfalls

In Analyzing Initial Data:

Reconciling Inconsistencies:
Does the strategy taken to reconcile the company’s internal inconsistencies with respect to desired proof make sense in light of documents on file with government agencies, practices in the marketplace, and likely perception in the wider public community?

Forensic Experts:
Have you challenged the first assumptions of adversaries, government investigators, and even your own experts who might point to the wrong parties, incorrectly frame the key legal issues, or too narrowly focus on one specific timeline point as opposed to the broad continuum of an event or transaction?

Fact Witnesses:
Do forensics, documents, and motive along with perspective and opportunity to observe, square with the alleged testimony of key witnesses?

In Early Strategy Calls:

Co-Parties and Joinder:
In considering alliances and joinder of other parties, and properly taking into account business relationships, have you given full consideration to not only what the opening pre-discovery position of all the players might be, but more realistically where everyone will wind up given the plaintiff’s case theory that will have the greatest probability of success before the jury?

Discovery Sequence:
To allocate resources effectively and proportionally to defined success, does the plan seize upon opportunities to create leverage by taking discovery out of sequence? For example, does the plan focus on damages or causation ahead of the business circumstances giving rise to the establishment or alleged breach of a contractual or other legal duty?

Timing of Settlement or ADR Options:
Is the timing of any settlement or ADR option based not only on when your position may be strongest, but with proper consideration of the likely readiness of others, and how best to posture the overall matter, given the varying dollar amount plaintiff would most probably accept at different case segments?

In Initial Discovery:

Initial Witness Depositions:
Are witnesses, including potentially critical company witnesses, scheduled to be deposed about factual elements upon which your forensic, accounting, or other professional expert may rely, before a thorough vetting of all the potentially supportable expert positions has taken place?

Electronic Discovery:
Has proper consideration been given to incorporating use of state of the art artificial intelligence filtering software offered by some EDD vendors to quickly triage and establish a first cut of documents for expeditious early case assessment instead of relying on costly, protracted manual attorney reviews?

Visual Communication:
Does the case warrant early retention of a graphics consultant so that witness fact testimony is developed in initial depositions through the use of computer images/animations that begin to shape the case along the perspective you ultimately want to share with the jury?