Thank you for sharing!

Your article was successfully shared with the contacts you provided.
During complex litigation, vital information is often seen but isn’t fully appreciated because it comes to the wrong person at the wrong time. With a steady stream of documents and deposition pouring in throughout a case, or when there’s an unfortunate million-document dump near the close of discovery, an efficient litigation team must have members who can recognize key facts at first look. If they can’t, case-making evidence will be lost when it’s seen but believed irrelevant. Information that isn’t fully appreciated is an ancient aggravation. Chapter eight of The New Testament‘s Book of Luke, written as Paul awaited his court appearance in Rome, relates the parable of a farmer who went to sow his seed. As he sowed, some of his seed fell by the wayside, where it was trampled down and devoured by birds of the air. The Book explains that people at the wayside are those who hear the word of God, but the devil comes and takes the word out of their hearts, lest they believe and be saved. In complex litigation, the decidedly more unholy “seed” is the mountain of evidence that you receive from an opposing party. This evidence falls by the wayside when some of your team members review it while focused on a single aspect of the overall case and they fail to perceive its significance for other areas. One way to ensure from the outset that all members of your team can spot evidence vital to parts of the case they aren’t involved in is to create a case outline that lists each claim or defense, its elements and the key facts necessary to establish each element. Ideally, this will be a single-page document, but the complexity of your case may dictate otherwise. This outline must be short enough that (1) even the busiest partner in your firm will take the time to read it and (2) that all members of your team will take a moment to refer back to it from time to time, while preparing for their depositions and reviewing documents. A useful approach is to structure the first draft of your case outline in hub and spoke form. At the center write the word “victory.” Emanating from the center are spokes labeled with your claims and defenses. Branching off from each spoke are its legal elements, and branching further off of these are the key facts that will establish each element. This loosely structured approach to outlining may help you see interrelationships amongst the different aspects of your case. You can make note of these while creating the traditional, list-style outline, which you should circulate to your team and remind them to review at least once a month. You should also provide this case outline to the legal and administrative assistants on the team so that they too will have a greater understanding of how their daily tasks relate to the overall case goals. Educate your team that life is a wheel and all things, however remote, relate in some way or another to all others. An innocuous statement made in respect to one aspect of the case can be a deadly admission when measured against the elements of another. For example, during depositions, an attorney with broad knowledge of the case can seek key testimony from a witness who is masterfully prepared against inculpatory statements on certain issues but blissfully aware on many others. I’ve often had deponents confidently refute a series of propositions under the mistaken belief that they were undermining my client’s claims, rather than their own affirmative defenses. Your goal is to create a team of attorneys who each have at least a passing knowledge of the entire case, that way any one of them can recognize information useful to the others. As a side benefit, when one part of the team is overloaded, members from another section can back them up on discovery and other issues. With this accomplished, even seeds of information that at first fall by the wayside can be cultivated and flower into case-breaking evidence. Ellisen Turner is an associate at the Century City office of Irell & Manella LLP where his practice includes intellectual property litigation and patent prosecution. You may reach him at [email protected]

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.