In today’s legal environment, clients who find themselves in litigation are increasingly cost-conscious. As a result, lawyers find themselves looking for ways to make litigation more efficient and less expensive for the client.
One of the best ways that I have found to do this is to start work in each case by preparing a basic draft of the court’s charge to be submitted to the jury at the end of the case. The court’s charge is the collection of instructions, definitions, and questions that a trial judge reads to the jury at the conclusion of the case to provide them with the law that they must apply to the facts, as well as the questions that they must answer.
In most cases, the questions, legal standards, and definitions are fairly well-established, and often available in pattern or form jury charges prepared by the bar association of the relevant jurisdiction. Charges from similar recent cases can usually be obtained from other practitioners, and if in federal court, the precise instructions given by the judge in question in prior cases of the same type are usually readily available through the PACER online service.
Preparing the charge first helps focus you on what the jury will actually be asked to decide. However the usefulness of preparing the charge first only begins there. As the practitioner works backwards, the pieces that are necessary to prepare and try the case began to fall into place. For example, knowing what the jury will actually be asked to decide, the logical next step is to determine what evidence needs to be presented to the jury in order to persuade it to make the finding you want. Armed with a statement of the relevant elements of the cause of action and the definitions that will determine whether the jury will consider the evidence to be sufficient, the lawyer can then take the next step backwards and craft witness outlines for both the fact and the necessary expert witnesses to make sure that there is proof of all the relevant elements. Or, if defending against a claim, evidence tending to show that the required elements are lacking.
In the case of expert witnesses, knowing what elements the expert will need to testify on then allows a further step backward of determining what opinions the expert’s report will have to contain. That then leads backward even farther to identifying the documents that the expert needs to review in order to have a basis for the opinions expressed in the report.
In my practice, this is perhaps most obvious when it comes to damages witnesses. Litigants often seek and fight over an enormous amounts of financial information in cases, forgetting that the only damages documents that are truly needed are the ones that support or refute the damages experts’ opinions offered at trial. These documents may not even be introduced into evidence, but instead merely relied upon by the experts to provide an adequate basis for their opinion. With this in mind, I often ask myself what documents does the expert actually need to see in order to offer an opinion? For example, the expert usually does not need to see every invoice or every document containing a financial calculation in order to have support for their opinions. In many cases, all the expert needs is summary sales information on a monthly and sometimes only a quarterly or annual basis. Knowing when to stop when it comes to seeking information – when enough is enough – is the key to litigating efficiently.
The same logic applies to fact witnesses. Portions of the cause of action will require factual testimony, and knowing what testimony will be necessary, the lawyer can then identify who the necessary fact witnesses will be. If the identity of the fact witnesses is not known, then the process has gone a step further by generating the questions that need to be asked, i.e. questions to determine who the relevant fact witnesses are, and what the relevant documents may be.
Finally, the charge can actually help write the initial pleadings in the case, as it acts as a cross-check at the pleading stage, ensuring that the necessary allegations to support submission of the case to the jury, as well as to permit discovery into the necessary areas, are present.
There’s an old saying that if you don’t know where you are going, you’ll never know when you have arrived. In litigation, starting by preparing a draft of the court’s charge will help ensure that throughout the litigation you remain focused on what you need to prove, thus saving both time and money.