Litigators have been confronting “alternative facts” since the dawn of litigation. Allegations in complaints, denials in answers and assertions from witnesses often come from the realm of fantasy. While false or fantastical assertions can result from a range of conditions—from intentional deceit to faulty memory—their consequences are almost always pernicious. They make cases harder and costlier to litigate, limit the possibilities of settlement and can take the focus off more important issues in the case where the parties may have honest differences about what happened and what the facts import.
“Alternative facts” are bad news in the sphere of litigation, and we should try to eliminate them whenever possible. It turns out that organization is the most effective tool we have in this battle.
Differentiating Facts from Alternative Facts
A fact is an assertion backed by evidence. An alternative fact shows its true face as fiction when it meets the evidence. With a fact, you’re happy to look for evidence, even from hostile quarters. Proponents of alternative facts try to hide from or explain away the evidence. Evidence is how we tell lies and fabrications from facts. But we litigators don’t just present the fact-finder with a pile of evidence; we must present evidence in a structured way—as part of a narrative—if we are to succeed in dismantling alternative facts in the eyes of the fact-finder.
Ask anyone who’s recently filed a motion for summary judgment or tried a case: Organizing evidence into a fact-based narrative is extremely time-consuming and difficult—requiring counsel to support every fact with one or more pieces of evidence. This task can only be done well if counsel has command of all the evidence developed in the case: every page of every deposition, every document produced in discovery, every admission, every interrogatory response, every affidavit.
Systems to Organize and Understand
Each lawyer has her own system that she relies on to organize and then synthesize evidence. There are roughly three kinds of systems:
The Memory Treadmill: Reading every document as it comes in and making “mental notes” of its significance. The document is stored in a paper or electronic folder so it can be accessed later. Counsel constructs a detailed and vivid narrative of the case—complete with dates, times and names of every witness—but only in her memory.
However, unless counsel is gifted with truly photographic memory, she cannot remember exactly which documents (and specific pages) prove each fact in the narrative. Whenever evidence needs to be presented, counsel must re-read substantial portions of documents to determine exactly how to prove each fact, leading her to read the same document numerous times during the same case. Understanding the significance of each document means that counsel never gets off the treadmill of re-reading documents.
Word Kudzu: Maintaining a case chronology document, usually in a program like Microsoft Word or Excel. As the case progresses, entries are added to the document, and details are annotated with citations to evidence. An extremely organized document might even list the specific pages of documents that will be used to prove each fact.
As the case develops, the chronology document gets longer and more difficult to edit because nothing in it is linked. It grows with abandon, like a patch of kudzu. If a case becomes sufficiently complicated, counsel may stop maintaining the document, rendering it nearly useless.
The Cathedral: Reliance on software powered by a relational database containing a table of chronologically-ordered facts. Each fact is linked to one or more legal issues, witnesses and pieces of evidence. Because evidence is organized in a database, counsel can quickly and easily answer questions, such as, “Which documents (and pages) do we have that deal with the issue of the defendant’s intent?”
While this incurs some cost, counsel is not forced to rely on a mental list of each document but focuses on seeing the bigger picture of the case and new opportunities for argument, proof and development of evidence. Preparing for trial and motion practice is vastly easier because there is no need to re-read documents that have been fully integrated in the case’s database. Here, everything is in its place, the stained-glass windows of ingenious themes and motifs supported by solid buttresses and columns of evidence.
Which Systems Do Lawyers Use and Why?
From talking to thousands of lawyers about these issues, most of us amble between The Memory Treadmill and Word Kudzu. Buying software or learning a new system seems like too much work. Besides, we’re doing just fine handling our cases the old way, thank you!
While it’s true that lawyers have done great work relying on their memories and chronology documents, it’s worth talking to those who’ve invested in new technology and skills. They typically experience not only a quantitative increase in efficiency but also a qualitative improvement in their advocacy, particularly when it comes to developing proof and presenting cases’ clear and convincing narrative that banishes alternative facts.
Organization in Action
A few years ago, I handled a case with so many alternative facts that I almost gave up trying to sort them all out; the false or misleading statements were so pervasive in the case that it seemed difficult for the truth to get a toehold anywhere. Instead of giving up, I built a database that linked and cross-referenced every document in the case to the issues and facts that it proved—helping me prepare a deposition strategy that got the truth out.
The good news is that lawyers today don’t have to build databases. There are several great software products available that enable lawyers and investigators to build well-structured fact chronologies with minimum fuss. Tools like these help lawyers get off the treadmill of repetitive tasks and focus on the more fulfilling, interesting and creative aspects of the practice. They also help us stop alternative facts and ensure that cases are decided fairly, based on what actually happened.
Jeff Kerr is a former litigator and now co-founder of case management solution CaseFleet.