B.  Discovery, discovery disputes, and trial preparation

 

Dealing with opposing counsel

 

At the start of a case, send a memo to opposing counsel seeking agreement to a number of protocols that will facilitate cooperation and reduce costs.  We list these below.

 

Document production

 

Upon receipt of the other side’s document request,^[1] an experienced attorney, in consultation with the client, determines what should be objected to.  It is better to produce too much than too little.  It is very expensive to review masses of documents to remove what is non-responsive or irrelevant.  Sooner or later, the documents probably will have to be produced anyway.  Clients should even be encouraged to allow open files searches if counsel can get a stipulation preserving privileges or can find a way to identify files that are likely to contain privileged documents before production.

 

If possible, do not rely on the client to locate responsive documents and furnish them to outside counsel.  Legal assistants should be experts at this, and there is too much danger of an inadvertent omission unless the lawyers are involved from the beginning.  It is also wise to number the originals of all documents produced for inspection before they are inspected, to log all files searched, and to interview file custodians while the searches are being made.

 

Before numbered originals are produced for inspection, a lawyer should review them to remove those that are privileged.  All documents withheld on the ground of privilege are logged at the time they are withheld.

 

Document organization

 

Imaging all hard copy documents does not make sense in most cases.  The process is expensive and usually unnecessary.  Even the most complex case boils down to fewer than several hundred hot documents.  As trial team members initially review documents—the client’s and the other side’s—lawyers select those that are to be included in the hot document chronology. These are the documents that tell the story and that the trial team will use to prepare witnesses and to depose witnesses. They are the ones that will likely become trial exhibits.

 

Electronic discovery requires early attention.  The proliferation of email and common use of personal computers and servers have astronomically increased the pages of potentially relevant documents that you must get a handle on for production and that you may receive in production from the other side.  Dealing with electronic discovery exceeds the scope of this chapter,^[2] but the necessity of organizing the documents into a hot document chronology is just as essential with electronic documents as it is with hard copy.

 

From the document chronology and other sources, prepare a written chronology of events.  It is not a document digest, but rather an annotated narrative of what happened.  It is your most important trial preparation work product and is frequently updated.

 

Depositions

 

Don’t take many depositions, and keep the ones you do take short.  You don’t need to look under every stone.  You just need to know where the boulders are. Excessive questioning of witnesses, particularly experts, serves only to educate them.

 

Normally counsel should videotape all depositions they take.  Videotaping minimizes excessive talking by opposing counsel and enables the trial team to show the other side’s key witnesses during jury simulations and to the real jury.

 

An important exception to the videotape-all-depositions rule is when you depose an expert.  Normally, you should save your tough cross-examination for trial; otherwise the expert will know your line of attack and prepare accordingly.  The result of holding your fire will be an in-the-can videotape that lays out the expert’s opinions but doesn’t challenge them.  That allows the other side to call the expert by videotape and thereby thwart your plan to destroy the expert on the stand. 

 

There is no such thing as a bad witness—only one who has been ill-prepared.  Give witnesses who are clients a memo that describes the deposition process and how the witness’s testimony at the deposition will play at trial.  Then prepare them for the 20 toughest questions.  Do not sit them in a room alone with the thousands of documents they may have been copied with over the years and ask them to review them. The documents they may have problems with are usually those they have authored.  Concentrate on them and the few others that are important to the witness’s testimony.

 

Witness preparation

 

Witnesses learn through doing.  You should therefore cross-examine your own witnesses as part of their preparation.  Do it on video.  Then play it back and critique their performance.

 

Defending lawyers are not supposed to talk during depositions.  Courts are sanctioning those that do.  If the witness is well prepared, there is nothing for the defender to do but listen proudly.  And, by involving the most experienced lawyers in witness preparation, you are often able to trust deposition defense to lawyers with lower billing rates.

 

Some lawyers believe that what a witness doesn’t know can’t hurt him.  They encourage their witnesses not to remember, not to know.  This is dangerous.  A witness who doesn’t know or recall at his deposition is often useless at trial.  Encourage fact witnesses to learn, remember, and be responsive, even at their depositions—to be able to handle even the most off-the-wall hypothetical questions.  And encourage your experts to type out a short version of their opinions to hand to the other side and refer to during their testimony

 

Most lawyers do not question their own witnesses at their depositions.  They are afraid to commit to what they want to prove at trial, often because they themselves haven’t taken the time to think their case through.

 

You should ask many of your own witnesses questions at their depositions.  If the other side calls one of these witnesses at trial, your examination of him or her gives you some favorable testimony to show or play to the jury during the other side’s case.  It also removes the need to bring all of your witnesses to trial.  Usually opposing counsel is ill-prepared to engage in a trial-type cross examination after you question your own witnesses on direct at the end of the deposition—frequently, they are in a hurry to catch planes home.

 

Discovery disputes

 

Try to conduct all discovery by agreement.  It is expensive to do otherwise.

 

Most discovery disputes would never blossom into motion practice if courts adopted one requirement:  lead counsel must personally discuss any disagreement over discovery before filing a motion.  Leaving such disputes to lawyers who don’t have the authority and experience necessary to reach a sensible resolution invites wasteful motions, hearings, and bad feelings. 

 

Experienced counsel know they should rarely take discovery disputes to court.  Judges hate them because they consume so much time and do so little to advance the case to resolution.^[3]  Partly as a result, judges seldom handle fights over discovery quickly or effectively and usually give both sides less than they could get by agreement.  The lack of attention bogs down the discovery process and hinders trial preparation. 

 

The rule should be to take a discovery dispute to court only when the issue is outcome-determinative (few are) and only when you have confidence that you can win.  If the other side withholds a key document under a weak claim of privilege, for example, move to compel production of that document.  But don’t file a motion that asks for routine documents or challenges a strong privilege claim.  If your opponent makes a habit of missing deadlines, such as for serving expert reports, move to preclude the evidence.  But don’t contest a mistake that was quickly corrected and didn’t hurt your client.

 

Discovery disputes take on more significance than they deserve to the parties and the lawyers.  A motion to compel or for protection becomes a way to get leverage or momentum, discourage the opposition, or “educate” the judge.  But these are forlorn hopes.  And the small victories the motions achieve do not nearly compensate for the expense, the lawyers’ loss of credibility, and the waste of the court’s time.

 

Budgeting and calling the odds

 

You should be willing—and, more and more often, must be willing—to prepare litigation budgets for your clients.^[4]   Predicting expenses is useful but less desirable than working on a fixed-fee basis, which places the risk of inefficiency on the lawyers and allows the clients to budget accurately for a case.

 

Clients are entitled to know what you see as the issues and how you call the odds on each.^[5]  Though you will often be unable to opine much for auditors, do not be reluctant to commit yourself in writing to your client.

 

Jury simulations

 

Conduct jury simulations early and frequently in most cases.^[6] The simulations help lawyers predict the outcome, hone arguments, and conduct discovery with an eye to telling a simple story to a jury.  They let clients see how their lawyers will look and sound during the real thing.  When the result is favorable, you can disclose the outcome to the other side to encourage settlement.  And your presentation at the real trial will be crisper, quicker, and more compelling.

 

A mock trial with 40 jurors costs around $25,000.  In some cases, the expense can be lowered by conducting the jury simulation in-house.  Legal assistants should be trained to conduct them.  Even then you should use professional jury consultants to interpret the results.  They can do this by merely watching the videotapes of the arguments and deliberations.