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Pretrial Advocacy: The Era of Front-Loaded Litigation

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Pretrial Advocacy: The Era of Front-Loaded Litigation

The pretrial playing field has changed markedly over the last three decades, moving the battleground from the jury to the gauntlets that leave a judge with discretion to eliminate or trim a case before it even sees a jury. Standards governing motions to dismiss, summary judgment, experts, the breadth of discovery, and even class certification are the battlegrounds that often determine the fate of a case. Against this backdrop, technology - including the internet and the ability to create real-time recordings of events - has markedly changed the availability and quantity of evidence. Selecting the most compelling evidence - or deselecting evidence is a new challenge in addition to the age-old skill of constructing a narrative that glues the theories in place. Precision in the pretrial process and an appreciation for the evidentiary rules and their interface with the procedural rules are essential. From complaint preparation through discovery and motions practice, this 60-minute session will provide listeners with a crash course overview of what is needed in this new era of front-loaded litigation.

Transcript

- Hello, my name's Reuben Guttman. And I wanna talk to you about Pretrial Advocacy: The Era of Front Loaded-Litigation. So let's talk about the things that we will discuss. First, we're going to talk about the interrelationship between the Rules of Evidence and the Rules of Procedure. We're gonna talk about the importance of evidence in case development. And, of course, we're gonna talk about reverse engineering cases. What do I mean by reverse engineering cases? We take a case, we wanna think about what that case is ultimately gonna look like in front of a jury, what it's gonna look like its summary judgment, what it's gonna look like through the discovery phase, what it's gonna look like through the complaint phase, case preparation, reverse engineering. And reverse engineering allows us to anticipate the things that we will need to do in order to be prepared for that case to go to trial or be adjudicated through summary judgment or through resolution or otherwise. We wanna also talk about proposing solutions that are easy for the judge to accept. Of course, throughout the course of litigation, the judge is going to weigh in on the case, as it proceeds through the litigation process, through motions to dismiss, motions to compel, motions for summary judgment, and ultimately how we deal with the judge, how we address concerns by the judge, how we anticipate the judge's concerns, problem solving. I think that's gonna be something that we're gonna spend a little bit of time on over the next 60 minutes. Going to talk about professionalism as a means to take the lawyer out of the conflict and talk about this in the context that most cases resolve short of trial. 97, 98, 99% of the cases that are filed in court do not ultimately go to trial. They're resolved. And resolution of that, those cases, means communication between counsel and there has to be an open channel in order to do so. We're gonna talk, obviously, a lot about the client. Client testimony preparation as a process that begins at the first client meeting. We're gonna talk about not waiting up until the day before the client's deposition or the client's trial in a case to think about what the client's testimony is going to look like. And in order to collect information from, not only our client, but other witnesses, we're gonna be thinking and talking about how clients and witnesses store and retrieve information. So let's get down to business. The case preparation. First, we start with the client. We focus the client on the facts. Clients come in the door, and often they are like horses untethered, to any particular train or track. They're all over the place. They have their own vision of what the law is, and they have their vision of what facts are relevant or important. And so it's essential to focus the client on the facts and delineate between fact and conclusion. A client will often say things like my employer was horrible. My employer was discriminating. My employer harassed me. Well, sir, when you use the word discriminate, can you give me the specifics that support that? And when I mean specifics, I mean the facts. "Well, last week, he looked at me with a gimlet eye view." And I say, "Sir, gimlet eye, what do you mean by that?" And the idea is to drill down and get the client to be as specific as possible. Look for potential problems in the relationship. Is the client forthcoming? Does the client answer your questions? Does the client have an ulterior motive in bringing the case? Is he bringing the case, for example, for the stated reasons, or is there some other ax that he has to grind? Does the client look at the case as the pot of money that will support his retirement, when you, as a lawyer, know that the case maybe has a value of, say, $5,000 or $10,000? Look at things that will pose a problem in the attorney-client relationship as this case progresses. And finally, you wanna know what documents the client has that supports his or her purported claims. And not only what documents who the witnesses are, where can they be located and what does he expect them to testify to. Of course, case preparation, also is about investigation. And in this era, we have all kinds of new mechanisms to investigate a case. Check out social media, LinkedIn, Facebook, Twitter, YouTube. Google the names of the potential defendant or the plaintiff as the case may be. Study who they are. If it's a publicly traded company, look at the filings with a Securities and Exchange Commission. If the individual or entities or witnesses have made representations on YouTube or prepared videos, look at those videos. And do it not only for your client, obviously, do it for the defendant, do it for the plaintiff, do it for all the witnesses. And this will give you a better sense of the totality of what you're dealing with as you enter this litigation. We talked about checking out government and third-party sites for standards of care, allegations worthy of judicial notice. In other words, somebody says that, "You know, I walked down the street, and I fell off the curb because there wasn't a railing there." Is there government regulation on this? Is there a standard of care promulgated by some association or agency? Is there an architectural standard of care? Is there a transportation standard of care? And some of this actually may be on the web, and it's an easy way to get yourself educated on issues that may be highly technical. And, of course, I said this earlier, but I'm gonna say it again. Don't forget to research your own client. Often clients come in the door, and they'll only tell you the good, not the bad. And as a litigator, somebody representing a client in a case, you need to know the good, the bad, and the ugly. You need to know everything, so you can deal with it. Now, as you begin the case, we talked about this notion of reverse engineering. And I told you that I thought reverse engineering was all about looking down the road. What's this case gonna look like as it goes to trial? What's it gonna look like at trial? And you don't wanna be in a situation where you're standing there in front of a jury, and you're realizing that you don't have the documents you need to prove the case. And maybe because you don't have the documents you need to prove the case, you're gonna be short on meeting one of the elements of the claim. Of course, if that's the case, you probably were dinged out on summary judgment. But always keep in mind the big picture, the complaint, the disclosures under Rule 26, which is the beginning of the discovery process. And what's that discovery process gonna look like? It's gonna involve document requests, it's gonna involve interrogatories, it's gonna involve requests for admissions, and it's gonna involve, of course, depositions. And then down the road, you're going to have a situation where you're gonna have to prepare the case for summary judgment. Are there disputed facts? Are there undisputed facts? What evidence will you seek to put into the record? What's your statement of undisputed facts gonna look like? And if the other side's moving for summary judgment because they claim there's no facts and dispute. And as a matter of law, they should win the case. You have to determine what facts are in dispute such that they merit resolution by a jury. Are you gonna need experts? Are you gonna need experts to fill in the gaps to either explain complex issues to the court or the jury? Or to address issues including damages and causation? And if you're gonna need experts, that's something that you've got to think about early on in the litigation process. If you're taking the case on contingency, you wanna ask yourself how you're gonna fund those experts. And if you're not taking the case on contingency and the client's gonna pay for the experts, you wanna make the client appreciate and understand that in addition to what the client is paying you, those experts are gonna cost some money. Okay, let's move on down the road. Of course, every case begins with complaint and how we draft a complaint now is a lot different than how we drafted a complaint when I went to law school, 35, 36 years ago. Back then, complaints were governed by the doctrine of notice pleading and the old adage that all you need to do was spit on a piece of paper, setting the case of Dioguardi v. Durning, and the Supreme Court's decision in Conley v. Gibson, and put facts down or put allegations down that put the other side on notice of the cause of action. Well, that's not true anymore. That's not true anymore. The complaint process is now more stringent, at least in federal court. And that's a result of two decisions, Ashcroft v. Iqbal and Bell Atlantic v. Twombly. And how does it work? You have to plead facts. The court will only look at facts in a complaint they will strip out conclusions, and they will determine whether a complaint is plausible based solely on a review of the facts. Now it doesn't mean that you can't plead conclusions, it doesn't mean that you can't talk about the law. Of course, you can do that to educate the court, so the court has an understanding of the context by which your factual allegations fall. But keep in mind that when your opposition files a motion to dismiss the complaint, they're gonna say, "Your Honor, all of those conclusions and legal analysis that's put into the complaint, that's very nice, but in determining the plausibility of the complaint, right? All that should be discounted." The complaint really needs to be something that grabs the court. And you need to understand who's reading this. In a federal court, the judge is gonna have clerks, obviously, and the clerks are gonna read this, but nonetheless, federal courts like state courts, like all courts are overburdened, and you need to put together a complaint that's readable and understandable, and quite frankly, just make sense. So you need to write a narrative. People remember narratives. They understand things when they're put in story form. Think about themes. Why does anybody care about what you're saying? Why is it relevant to them? Why does it affect them as a human being? And if your complaint is long or even a short complaint, we need to write an introduction that says it all. An executive summary, so to speak, because of the Iqbal and the Twombly standards of pleading, we found that many complaints, especially in federal court are longer, much longer than they were in yesteryear. And it's not uncommon, for example, to have a complaint that's 20, or 30, or 100 pages, and some even 300 pages in complex securities and antitrust cases. And for those cases, it's essential, absolutely essential that you have an introduction that captures, that captures the cause of action, captures the facts, and captures the theme, and captures the theory, and says it all. And in that respect, then when the judge gets into the remainder of the complaint, he'll have a sense of what he's looking at. And in many respects, an introduction is kind of like the opening statement before the jury in a trial. It's the cover on the cover on the box of a jigsaw puzzle that tells you where all the pieces are gonna go. It's important to understand what is the likelihood that your cause of action is going to be one that is susceptible to easy resolution or complicated resolution, or quite frankly, one that won't be resolved absent a trial, or maybe a mediator who can step in with some impartiality and read the Riot Act to each side. And one of the ways that we think about this is we look at a complaint or a cause of action, we say, "What type of cause of action is it?" And so we say, "Well, there are some complaints with personal claims that are initially polarizing, like fraud, discrimination, breach of fiduciary duty, family law, breach of employment contracts, business interference. Those are the kinds of complaints that involve, almost to some degree, an attack on integrity. "You're saying that I didn't treat my employees well, you're saying that I discriminated, you're saying that I committed fraud, which implicates a lie?" Well, when I hear that as a defendant, I might say to my lawyer, "You know, dig in. I'll pay you whatever it takes. I'm gonna fight like hell." And those kinds of complaints are the types of complaints that involve disputes that are hard to resolve immediately. Then there are complaints with potential regulatory or criminal implications that are initially polarizing and can have settlement complexities. So, for example, antitrust cases, securities cases, environmental cases. These are the types of cases that also may have a parallel criminal component. So, for example, you may launch or put in play an antitrust case or securities case, but that type of case may also cause regulators to look at whether the defendant that you are suing in publicly in a federal or state court is involved in criminal conduct. The same facts that you're alleging, which give rise to your civil suit may give rise to criminal allegations. And similarly, the same is true when we're talking about environmental cases. And so those cases have complexities with regard to settling because if you settle them, well, does that send a message to the regulators that there's a problem? Does it send a message to the shareholders that there's a problem? Does it open up a question for consumers as to whether consumers should have causes of action? So, for example, if I sue a boat manufacturer and say, well, you fix the prices of boats, and I'm a retailer and you're a wholesaler or you're the manufacturer, does a settlement of that cause of action then open the door for consumers to bring similar types of suits? Claims involving vanilla business disputes tend to trigger negotiations. They're easy to resolve or easier to resolve. I wouldn't say anything's easy to resolve, but among the ones we're talking about, these are easier. Breach of contract cases, debt collection cases. And then there are claims that may be personal but involve insurance, which also could be more likely to settle because these claims, because they have an insurance carrier involved, the carrier may bring some common sense to the litigation and say, "Okay, I understand what's being alleged. I understand my client's annoyed. I understand my client doesn't like to be sued. But let's make an objective monetary decision about how we're gonna resolve this. And some of those types of claims include negligence, breach of fiduciary duty, legal malpractice, and defamation. Now, why do I even talk about this? Why do we care about this dynamic that we're talking about? Well, the reason is is that you need to be candid with your client. And looking at this chart that we have here, the four categories of civil disputes and why we care, is a way of thinking about the potential for settlement or where this case is going to go. And so, for example, if a client comes in the door, as they often do and say, "Well, all you're gonna need to do is file this lawsuit, and when the defendant sees the lawsuit, they're gonna be coming to your door with boatloads of money." You need to say to the client, "Wait a second." When you're saying that somebody engaged in fraud or wrongful conduct that impacts their integrity, they're not gonna cave it immediately. It's the other way around." You're kicking a bees nest and they're gonna try and sting you first, and if they can't sting you, maybe after they keep trying and trying, that's when there's resolution possibilities. And so you may wanna say to the client, "You know what? Once you file that lawsuit, we're in for the long haul, and maybe it's gonna cost you money, or it's a dispute that's not gonna be settled, at least in your timeframe." So, in the new world of litigation, when I say the new world of litigation, I'm talking about the new world of litigation post-Iqbal and Twombly, and the summary judgment trilogy and Daubert, and all the procedural opinions of the United States Supreme Court, which have put quite frankly, roadblocks, in the process of litigation, made it harder for plaintiffs to bring cases. This is what we're looking at. We're looking at cases being front loaded. I say cases are front loaded, meaning that courts want you, because of Iqbal and Twombly, to come to court with a complaint that alleges more facts. You need to do more work upfront. You can't just rush to the courthouse, put something on file that gives the other side an idea of what the case is about, and then say to yourself, "Well, I'll figure the rest out in discovery. And by the time we get to trial, hopefully, I know what I'll be arguing." Doesn't work like that anymore. Doesn't work like that anymore. And quite frankly, it doesn't have to work like that anymore. Because of the internet, we have more information now readily accessible. More information now readily accessible, which allows us to front load cases. Litigate on the assumption that the case will be tried. Litigate on the assumption that the case will be tried. Don't buy into your client saying, as I said, "We're just gonna file this, and it's gonna settle." Cases settle because because the litigants and their lawyers prepare for and litigate that case like it is going to be tried. Now, we also said, and I'm gonna repeat this. Professionalism is not just collegiality. It's efficiency. In law school. They talk about ethics and professionalism. And really, I think students are taught to believe or led to believe it. Professionalism is something you just should do because it's dignified, it's gentile, it's the way you should behave. Well, that's all true, but there's an economic reason for it. And it's simply this. If you are a lawyer, as a broker for a client and a piece of litigation, you're representing the client to the other side, you're representing the client to the court, right? You're gonna have to deal with your opposing counsel with regard to extensions on pleadings, with regard to service issues, with regard to stipulations as to fact with regard to anyone of a number of things that are going to lend efficiencies to the case. And if you begin the litigation process or engage in the litigation process with the idea that the opposing counsel is the mortal enemy, and is just as horrible an entity or a person as is the defendant in the case or the plaintiff in the case, right? You are going to create a dynamic where it's going to lead to inefficiencies in the case. And at the end of the day, at the end of the day, you may find yourself in a deposition, maybe your fifth deposition or your sixth deposition, your eighth deposition. And you may say to the other side, "You wanna have a cup of coffee? I'm gonna have lunch," you know? And you're gonna be chitchatting through these depositions it breaks about kids, about trips, about sports, right? And you may learn to like the opposing counsel, and maybe you're gonna say to him, "You know, hey, where are we going with this case?" Is it possible that there's a mechanism or an avenue to resolve this matter? And you know what, that's kind of the thing that happens. Think about FRCP 1 and FRE 102 as invitations to propose procedural efficiencies. We're gonna talk about that, procedural efficiencies with the court. Your Honor, rather than, as I'm sitting here, and I'm listening to my opposing counsel's argument, let me make a suggestion as to how we might all come out this so that the court doesn't have to spend time issuing a ruling. We also know about it in this new world that realtime record keeping means that cases are virtually decided at the time of filing. What do we mean by that? What do we mean by that? George Floyd case, for example, right? When that case was tried, and it's obviously not, not a civil case or there was a civil component to it, but the prosecution came to court with a video recording, a realtime video recording on every corner. We may not notice it, but there are recorders, video recorders, on lamp post. And we live in an era where everybody, almost everybody in this day and age is walking around with a movie camera. I mean, think about it. 35 years ago, for me to say, I'm gonna walk around with a cam quarter and 30 years before that, I'm gonna walk around with a film camera, didn't even have sound back then. But everybody has the ability to keep realtime records. And through emails. 30 years ago, when I reviewed documents, I reviewed edited documents. Now, I'm reviewing emails where parties are saying the wildest thing just because they respond quickly and hit the send button. And so by the time a case gets filed, the dye is cast. That record pretty much is set in stone, and it's gonna be pretty easy to get that record. As I say, electronic information facilitates proof, but, of course, their evidentiary challenges and FRE, Federal Rule of Evidence 902 addresses how to deal with those challenges. And you just need to read the rule. And access to information has created case investigation, meaning that we get more information. We can do more investigation. So FRCP 1, Federal Rule of Civil Procedure 1, very important rule. People would say, well, they just have that rule because they know their place to start. Well, these rules govern their procedure in all civil actions and proceeding in the United States district court, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties. And the parties. Those words were added in the last seven years to secure the just speedy and inexpensive determination of every action and proceeding. And so if there's an invitation to you as a lawyer, it's an invitation to say to the judge, "You know what, Your Honor? I have a creative way to get this case to trial. I have a creative way to try this case. We can agree on stipulations." And so this rule invites creativity and problem solving when it comes to creating efficiencies in the case. And Federal Rule of Evidence 102, same thing. These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. We have a number of things that are going on in litigation world, from MDLs to how we handle class actions, to how we address experts, to how we shorten our trials, to how we resolve cases. We are as litigators, and, of course, as juries, although I'm not one, constantly looking for mechanisms to add efficiencies to the litigation process. Why are we doing that? Because as an old colleague once told me, he said, "You know, Reuben," he said, "A litigation is a rich man's sport." And frankly, we don't want necessarily to be like that because the trial process, the court system should be one that's accessible to everybody without regard to their means. it's important when you think about litigation to talk to those who are in the trenches. My colleague, Veronica Finkelstein, who also lectures for Quimbee, and she's a professor at Drexel University and a Department of Justice prosecutor. She says, "The only way to effectively settle a case is to be ready to litigate it." You need to know all the facts and the law inside and out to effectively negotiate. Think of the settlement like an abbreviated trial. Your opposing counsel is not a neutral juror, but it's still your goal to move the needle. You must convince the opposing party that the risks of trial outweigh the benefits of settling. And to do that, you must preview how convincing your trial presentation would be if settlement fails. You know, you can't look at the facts in your case, and we're gonna talk about this, drink your own Kool-Aid, and say, "Wow, that's amazing stuff. That's compelling." You have to be objective about it. You almost have to look at, not almost, you need to look at the facts from the lens of your opposition and the court. That's essential. My colleague, Eric Newman, who's the chief litigation council for the antitrust division at the Washington State Attorney General's Office always says to me, "Good storytelling is the touchstone of effective advocacy. The development of an engaging story maintains audience interest and helps with their understanding and memory of your position. This is true, not just at trial, but throughout the litigation process from complaint through discovery, motions, and appeal, and so forth." I think that's a good lesson. You're constantly thinking about how the facts you're gathering, with regard to the litigation process can be communicated in a narrative. By narrative, we mean story. Why? Because people remember stories. People remember stories. They have a beginning and an end, they're interesting, they hold our attention. Oral arguments. Throughout the litigation process, there's gonna be oral arguments. There's gonna be arguments and motions to dismiss and motions to compel, motions for summary judgment, all kinds of arguments. And what's essential, I think, that people miss is to listen to the opposition, listen to your opposition and look for commonalities. Are they saying something that you can agree with? And if you can agree with it, does it present an opportunity to problem solve, right? Your Honor, our problem is not that we don't want Mr. Smith deposed, our problem is that he doesn't have eight hours to spare and he's on the other side of the country, right? Problem solving. Your Honor, may I propose that really, I only need two hours with Mr. Smith, and I'm willing to do it remotely. Counsel, that sounds like a reasonable solution. What's wrong with that? And where do I get get the ability to do that? Where do I get the confidence that I can be that creative as a problem solver court? I get it from FRCP 1, which we talked about. And again, I'm gonna reiterate this. Professionalism means efficiency. Create a working relationship with your opposition, develop a reputation as an honest broker. I am telling you that if you develop a reputation among the judiciary, your opposition as an honest broker, after 35, 36 years of practice, and I can say this from experience, you'll feel good about yourself. Your opposition may say to you, "You know, I don't agree with the cases you bring, and I don't like your clients, but Mr. Guttman, Reuben, you've always been fair to me." And it goes a long way. And it makes you feel good about yourself and the practice of law. Strategy questions, strategy questions. We've filed our complaint, we've analyzed the possibility of settlement based on the type of cause of action we're putting into play, we've thought about how we're gonna deal with the judge, we've dealt with the judge reasonably well because the motion to dismiss, assuming we're a plaintiff, has been denied, and we're now in the discovery process. And we have a number of weapons in discovery. First, there is gonna be initial disclosures under Rule 26. And those initial disclosures are gonna govern damage analysis and cause the provision of documents and so forth. But we have actual, what I would say, a la carte weapons. Meaning that we can request documents, we can serve interrogatories, and we can take depositions. Interrogatories and requests for admission are obviously very targeted items, right? And serving them early, possibly keys the other side into where you're going in discovery, so you may lose the ability to surprise the other side. On the other hand, those are good mechanisms to lock in very, very, very simple and important facts. So, tips for admissions. Target admissions on small necessary but small facts that will have to be proven at trial. Right, example. Admit that Robert Jones was a guest at the defendant Hilton Hotel at 145 Broad Street in Washington, D.C. on January 30th, 2021. Right? Simple thing. It's a simple fact. You don't necessarily lose the art of surprise in terms of your ultimate theory or theme because that factoid is so small that the defendant or the plaintiff, as in case may be, may not understand why it's important. And then when you use your words or craft these requests for admission, and even with interrogatories, you have to be careful about the meaning of each word. So think about how words can be ambiguous as in the word guest, and rewrite to use language that is within the defendant's parlance or operating system. So, for example, if there's a document that the defendant or the plaintiff produced, which has the word guest list, and it's a hotel, you may wanna say, for example, as per the attached documents, which uses the word guest list, can you please tell me the names of everybody who's ever been on that list? Document request. Frame the request to get what you need, think about theme and theory. In other words, it's like you're going to the supermarket, and you're shopping to bake a cake. What are the ingredients for that cake? Don't buy everything on the shelf with the thought that I'm just gonna buy it all out, hoping that I've covered everything that's within the ingredients. Be targeted, be targeted. Why? Because overproduction costs time and money. You've got to read the documents, you've got to store the documents. If they're tendered to you in an electronic form, you've got to pay for that document storage in a big case, a massive case. Documents storage for a yearly basis can run well easily into the six figures. And so be judicious and frame the request to get what you need. And if you frame the request to get what you need, you may get an admission. In other words, maybe it's important for you to know who was in the hotel at a particular time and the names of those people. So tender me the guest list for all the people that were, only the people that were in the hotel. You'll know that they admitted, your opposition has admitted that the people on this list were the only people in the hotel. Be prepared to meet and confer. I just haven't been in a situation where I've tendered a document request and my other side says coming on up, 30 days, you'll have it all, right? That's pretty rare. Most of the time, there's a negotiation with regard to the tendering of documents, pursuant to document request. And as a young lawyer, sometimes, you say, "You know what? I'm being shorted. I'm entitled to those documents. Darn it, justice isn't being served." The reality is you need enough information to litigate the case. A colleague of mine, Dick Harpootlian, is a well-known trial lawyer in Columbia, South Carolina. He always says to me, "You know, the goal of litigation is to go from A to Z without touching the 24 letters in between." So. So, tips for drafting interrogatories. Seek targeted information as in names, dates, places, pinpoint questions to confirm facts that are not going to be in dispute. Don't overreach with complex questions, anticipate the objections. It is okay to attach and refer to documents as in confirming the authenticity of signatures or titles. Remember that you and the defendant may interpret words differently. And that's when we talk about, that's when we talk about this notion of operating systems. So, catalysts for drafting the interrogatories and the document requests. Obviously, the things you're gonna look at that are gonna focus you are the complaint, the answer, the disclosures, documents that have been produced. And if you have, for example, a situation where you're defending a case and the pleading in the complaint is vague, right? That may be an opportunity to draft a request that fleshes that out. Okay, what's really important through all this is to think about the Rules of Evidence. We're in a procedural mode here when we talk about pretrial litigation, and that's the way everybody's always thought of it. It's just know the Rules of Procedure, the Rules of Civil Procedure. But it's important also to know the Rules of Evidence, right? Because we're in what we call this world of front loaded litigation. The test for relevancy, 401, right? Appreciate that the test for relevancy doesn't delineate between direct and circumstantial evidence. Evidence is evidence. And we build pyramids out of small, tiny little bricks. We build cases of small, tiny little components of fact, components of fact, and understand that there are statements that are going to be statements of a party opponent. We would call them admissions. But they're simply statements of a party opponent, they're they're made by your opponent, and those are not under the rule hearsay. Go back again to the Federal Rules of Civil Procedure, appreciate the Rule 26 governing initial disclosures, experts, think about what you'll need for trial. And think about how you're gonna authenticate the documents that you're gonna get through discovery. 901, Rule FRE 901 gives you a fabulous roadmap for the types of questions that you may wanna be asking in the deposition process with regard to authenticating particular documents and talking about depositions. Let's talk about depositions. Important to understand witness psychology. When you're dealing with witnesses, whether it's through an interview process, through a deposition and even your own client, right? Think about how they store and retrieve information. Sometimes, they may not give you the answer you want, not because they're lying or because they're obfuscating, but because you haven't asked the question in a way that jogs their memory or opens their retrieval system. Bring them back in time, play to their ego. Play to their ego, meaning you know, it's not rocket science that... And then the witness will start to think about it. You know, I'm gonna look stupid if I obfuscate here. Use documents to jog memory. But if you're in the deposition and the witnesses do lie, test their propensity to continue to do so and create inconsistencies. What is your wife's name? I don't recall. And you say rather than fight the witness, no problem. If there's a question I ask that cause you to feel like you're a deer staring into the headlights, let me know, and I will move on. Okay, we talked about Federal Rule of Evidence 901, 902, and other important rule and particularly 13 and 14 of 902 were added. They deal with electronic evidence. Okay, keep your eyes on the prize. Always keep your eyes on the prize. Generate evidence to fit into the case narrative, discover or authenticate evidence for summary judgment, discover or authenticate evidence needed for any expert report, eliminate evidence and identify or eliminate witnesses. This is what you should be doing in the discovery process, this is what you should be doing in depositions, and you're constantly thinking about, as we say, looking forward. Reverse engineering is the other way to say it. What is your trial gonna look like? What are you gonna need for summary judgment, right? When we take out depositions, talk a little bit more in depth about depositions. One way to ask questions is to ask open-ended questions. We get a lot of information by asking open-ended questions. And one of the things my colleague, J.C. Lore is a professor at Rutgers and I do, in our book on pretrial litigation, which we published with Wolters-Kluwer last year is we give this analogy to the old game called battleship. So rather than saying, is there a ship at coordinate A1, we say, please provide the coordinates to all battleships. Please tell us everything. And we talk about witnesses, which is the other part of this chart, we think that there are gonna be some witnesses, some witnesses who are compulsive liars. Some witness who are compulsive liars. And there are gonna be some witnesses, quite frankly, who are compulsive truth tellers, compulsive truth tellers. And if you think about the spread between the two on this chart that we're looking at, witness psychology, you would assume that maybe 10% of the witnesses, maybe just pick a number 10% are compulsive liars, and 10% of the witnesses that you're gonna deal with are compulsive truth tellers. That leaves 80% of the witnesses you're gonna deal with, who probably are gonna come to a deposition with coaching like this. If you're asked if you know the time, don't say it's three o'clock, say yes or no as the case may be, right? But don't volunteer more than is necessary. So a witness who's coach, in many cases, is gonna be in the mode to not wanna volunteer information. But similarly, that witness is never gonna wanna cross the line and lie, right? And so when you're taking a deposition, one of the techniques that you can do is you can say, "Well, how do I put that witness in a position where he or she knows that they know the information? And if they tell me otherwise, they would be lying," right? And so the example I like to give is if I say to you, "Tell me about your first in college," right? The witness may say to himself, the witness may say to himself, "You know what? I really don't remember that. And so I'm gonna say, I don't recall because that wouldn't be a lie. That's the truth." But if you create a foundation where you bring the witness back in time, and you say, "Tell me where you went to high school. And how many years did you go to that high school? And tell me where you went to college, and what was the process by which you chose that college, and what did your parents think about it? And what'd you do this summer before you went to college? How'd you get to college? Tell me about your first week in college." And then ultimately, you say, "Tell me about your first class or your first day in college." You've brought the witness back in time. And that witness is saying to himself, "You know what? Now that I'm thinking about it, now that I'm at this part in my brain where I've reached back in time, I actually do know the answer to this question. And I'm not gonna lie, and I'm gonna answer the question. And, in fact, my lawyer," if he's a good one, "has told me that I shouldn't lie. I should tell the truth." And so that's critically important that sometimes people, lawyers don't get the answer they want because they haven't brought the witness back to the point where they can even locate that information in their memory. And they need the witness to be there. That's really, really important. And the other thing, of course, we talked about in an earlier slide is play to the witness' ego, and play to the witness' ego. So for example, when you're eliciting a lot of facts at the end of what's known as this fact collection process, you're gonna wanna test a theory. And the theory may be that if you inhale a lot of benzene, there's a likelihood that you're gonna get sick, and you want the witness to say, inhaling benzene may cause you to get sick, right? And one way to do that is to play to the witness's ego, that you phrase the question in such an obvious way that the witness would feel stupid answering to the contrary. So you say to the witness, "Well, obviously, sir, you've testified that benzene is a polynuclear hydrocarbon, and you've testified that it's a toxic substance. So it's not rocket science that if you inhale benzene, there's a possibility that you're gonna get sick." How you phrase the question, obviously, of course, is critically important. So let's move on a little bit. On depositions, really, really important to engage the witness in a way that gives him or her a comfort level. And I could talk to you about this being done in depositions, but I can also talk to you about it being done in client interviews. I can talk to you about it being done in your regular communications with anybody. We say here, start with non-confrontational areas, get a rhythm, concede questions that are ill form, show the witness that everything his lawyer told him about you as wrong. So let's talk about each of these, and let me even go back one step further. The witness, assuming you're deposing him or her, you may assume, as a working theory, that he's been told that you're the evil empire, that you're the bad guy because you're representing the opponent on the other side, especially if it's a party you're deposing, right? He or she has formed opinions about you. And you can assume or one working theory is to assume that those opinions are not favorable. So, obviously, it's very important when you're sitting in a deposition room and the other side walks in with their witness to say, "Can I get you a cup of coffee? What can I do to make it easier for you," right? In other words, show that you're not... Take the edge off show. Show you're not the evil empire, right? And once the witness starts to feel that, once he starts to feel that, right? It's gonna take the edge off of him or her in terms of how he or she responds to your questions, right? And when you begin the questioning, the most important thing to do is to get the witness in a mode where he or she is actually answering questions. So it's like, if you wanna give your doctor and you wanna put an important drug into a person's vein, you almost might begin with the sailing solution, injecting water, something that's not gonna be disruptive to the body, and then you'll move into the important stuff, right? And so begin with non-confrontational areas, right? And I use what I call our macros, meaning that, macro meaning I push a button and specific words come out. So I say, "Sir, can you gimme a thumbnail sketch of your educational history? Can you gimme a thumbnail sketch of your work history," right? These are things that a witness is probably not gonna have too much trouble answering and get them into a rhythm. And then you may wanna spend time drilling down on the different components of the educational history. where did you go to school? What was your major, right? And then where you see a witness smiling or really enjoying talking about something, let them roll, let them ramble. Once they start to roll and ramble, then the control that the lawyer tried to impose on them prior to the deposition is not gonna be there, right? Get into a rhythm, as we talked about. And then if you ask a question that's not formed well. Objection, vague objection, argumentative. Sometimes, it's okay to say, you know what? That was a horrible question. I withdraw the question. I'll ask it in a different way or a more proper way. Doing that gives you credibility with the witness. And then I said to you earlier, show the witness that everything his lawyer told him about you was just wrong, right? Just wrong. Opening the can of information. Throw the witness' words back at them. Answer, he was zealous in his efforts. When you use the words zealous, what are you intending to communicate with the word, right? When you use the word zealous. I say you because you wanted to communicate to the witness that he chose the word, he owns the word. He's got to know what the word means, right? Look into the witness's operating system. You talked about operating systems. I don't believe he harassed anyone. Well, you have an understanding of what the word harass is, but your understanding may not be the same as the witness. Just so we are on the same page. When you use the word harassed, how do you define that word? We ask questions about words and phrase, which we just did, but we do it a lot when we show the witness documents. And here's an example of a letter from one Richard used to Bradford Kessler. And you'll see that the way we prepare for a deposition is we take a document and we highlight specific words or phrases. And we show the witness those words or phrases, and we begin to ask the witness about those words or phrases. So in this particular situation, we say, "What is the contract for?" We see the words contract 76.415, what is this a contract for, right? And there are things we wanna know. Have you actually read the contract, right? And then there's a question I noted here. What do you mean to communicate when you used this word flight ready? We see words in documents that we assume we know what they mean, but you know what? The witness may have a different definition of what that means. And sometimes you'll find that definition, excuse me, will surprise you. So in this this particular letter, the word flight, the phrase flight ready is there, what does this mean? What does this mean? What does this mean? And then materially consistent with specifications. Well, you know, it sounds like a bunch of gobbledy goop. What does this phrase mean? What does this phrase mean? Which specifications have you read them? Or sir, when you use the word specifications, what do you mean by the word specifications? It's a word you used, right? Which requirements? What is this? Have you read it? What are the penalties? One of the things we wanna do when we have letters and emails is we wanna authenticate them. In other words, we wanna make sure that they are what they purport to be. And before I generally ask about the substance of a letter or an email, the most important thing I do is I go to the bottom of the page. And I say, "Sir, Mr. Hughes, you are Richard Hughes, this indeed is your signature." And he or she says, "Yes." And then I say, "In fact, you wrote this letter." "Yes." If I show them the content of the document first, right? By the time I get to the end of it, they may say, "Oh my God, this document is really damaging. I'm gonna obfuscate, and I'm never gonna admit that I wrote the document." So it's important to, I think, strategically, can be important sometimes to do the authentication first. And what we're doing when we authenticate a document is that for the purposes of summary judgment or trial, we've taken part of the evidentiary hurdle, evidentiary blocks out of the way. The document is what it purports to be. The only question is it relevant? Is it not hearsay? Does it meet hearsay exception? And again, we can look at FRE, Federal Rule of Evidence 803, and through the deposition process, we can ask the types of questions that will allow us to make arguments as to a document not being hearsay. And, of course, if a document's relevant, and it's not hearsay, and it's authentic, well, you know what? It's coming in. And you can get that information or the foundational information to admit a document through the discovery process. Okay. We can use documents in depositions that actually are not directly related to the case. So in this exhibit, we have sexual harassment policy for all employers in New York State. And it's a document that is published or promulgated by the State of New York, which is seemingly a reasonable and legitimate authority. And let's say I have a discrimination case, right? Is this document gonna be useful? Well, here's a line of questioning that one may think about. Sir, can you please look at exhibit one, which is a policy on sexual harassment published by the State of New York? Answer, I've never seen this document, and I know nothing about it, right? You're gonna get that response. And then you might say, I would just like to ask you whether you agree with the position of the State of New York that touching, pinching, patting, grabbing, or brushing against another employee's body constitutes sexual harassment? Now, here's what we've done, right? We've taken this document promulgated by the State of New York, which is a pretty legitimate authority. And it's published a policy, which seems pretty reasonable. And we are using it to get the defendant to agree that what the State of New York, and it may be some entity in the State of New York on the other side of the country. This witness may be in Seattle, Washington. We're getting the witness to agree that this is indeed a reasonable standard of care, right? And so it's possible to take documents, even outside the scope of the case, right? Which come from a legitimate authority, authority with some credibility, and use those in the deposition process. And that's why I said early on, there is a treasure trove of information that you can find on the internet that's gonna be useful in your case. Well, why do we do all that we have been talking about? Because ultimately, we have a dispute, and we're gonna resolve it. We're gonna resolve it. Either the court's gonna tell us your client has no case or the court's gonna say your client has a case, and I agree with everything, and I'm granting summary judgment, or the court's gonna say, let's send it to a jury or the parties are going to follow the rules or law of nature and see what their likelihood of success is to trial and decide you know what? There's a middle ground, which is to resolve the case. Well, when you're thinking about litigation, throughout the entire litigation process, you are going to constantly say to yourself, am I on top of the law? Do I know my facts? Maybe this fact can be interpreted another way. And you're gonna think about your case if you're a good lawyer. You're gonna think about your case at breakfast, you're gonna think about it while you're jogging, on your bicycle, unfortunately, with your kids, you're gonna be thinking about the case. You're gonna be accessing about it. You're gonna look at things upside down and inside out, and you're gonna be thinking about are you gathering all the information you need for trial and is this case gonna settle? Are you gonna be blown out? Are you gonna be made a fool of? And I always say the best lawyers are the lawyers who are motivated by passion for the case and fear of failure. But ultimately, what you wanna continue to do is analyze the good facts and the bad facts. Don't drink your own Kool-Aid, meaning that just because you've convinced yourself that it's a good case doesn't mean the judge is gonna think so. And it doesn't mean the other side thinks that you've got the goods, right? Deselect the evidence, meaning that you're gonna get a ton, a ton of evidence in a case, right? And too much evidence is gonna overwhelm the decision-maker. Things that you think are hot are not necessarily the kinds of things that may motivate the other side. And so every case involves some amount of deselection. In other words, you've got a case on a breach of contract, but it turns out in discovery, the chief executive officer of the opposing party is having an affair. Well, is that really what this contract case is about, right? As interesting as that may be to you, it may be the type of evidence that you wanna deselect. Know the weaknesses in your case. Think about how you're gonna handle them. And I say inoculate against the defenses, inoculate against the defenses. And ultimately what you wanna be able to do is you wanna be able to focus the case in a nutshell. If on a given day, if you've been at a case, you can't sit there and off the top of your head, given elevator speech, in a nutshell, two minutes, judge, this case is about blah, blah, blah, and say it in five sentences, that means you're not on top of your case. Well, I hope this hour that we've spent together has been helpful. My name's Reuben Guttman, and I appreciate the opportunity to talk to you today.

Presenter(s)

RG
Reuben Guttman
Founding Member
Guttman, Buschner & Brooks, PLLC

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