Digging Down – On Organizing and Preparing Your Case
Published to: 000113, 000114, 000116, Perspectives of a Small Town Lawyer, WV Lawyer - Tips and Techniques
on January 23, 2015 1:18 am
First; in the interest of time and copying, I provide here a link to the PDF version of this article, espeicially the fill in the blank forms:
My wife says, “Keep it short and interesting.” I wish I could, but this is a serious subject. It is a “how to” written by someone whose been working and studying for 40+ years on how to do the fundamental tasks of a general trial lawyer.
This is not theoretical. It is how I begin a case, size up a client and my adversary, gather facts, organize, prepare, and resolve. If I were a “writing roofer”, I would tell you how I get that roof to be attractive, durable, and shelter from the elements. This is the same thing. “This Old Lawyer”.
This article assumes you have read “Something Constructive – How to Organize the Facts in Your Case” and/or “More About Organizing the Facts in Your Case”, see links below, and you just don’t get it, or you get it and you want to “dig down” for more:
1. I have written about organizing the facts in your case before, http://hunterlawfirm.net/something-constructive-how-to-organize-the-facts-in-your-case/ ; http://hunterlawfirm.net/more-about-organizing-your-case/ , but I am going to “dig down”, for colleagues, and for clients who have extensive facts to organize. If you have a better way, please share it. Feedback is always appreciated.
2. My plan is to explain this method in more detail, to provide some ideas for conducting a “new client interview” and “follow up interview”, to provide insights into how I approach mediation, and to provide some insights into how I use the organized information for a trial or contested hearing.
3. The software vendors who sold me on this method are entitled to be credited, even though I feel they have abandoned me. It is a “tough buy” for a sole practitioner with two paralegals.
4. CaseSoft products cost thousands of dollars instead of the hundreds of a few years ago. I wish I could say that it is affordable for a small firm. I cannot. It is as if HotDocs bought Pathagoras. Now that’s a scary thought!
5. If you purchase just a basic package, it won’t include the module “TextMap”, an essential tool for porting text from deposition transcripts, medical reports, and other documents into the CaseMap database. It is a simple application that should not cost $300 per machine plus an annual subscription! They try to hide the cost, but it is many times that.
6. I suggest you go to the www.casesoft.com site, download the free version and decide for yourself. I think I will do that and update this later with what I learn about new features and pricing. As of now, I will be surprised if anyone reading this feels it is worth the investment, but the underlying concepts are sound. If they are free, spend some time with their tutorials, and adapt the ideas to your own software. Sadly, the have begun to “monetize” their training also.
7. My method uses some basic forms so the client can save money by collecting the puzzle pieces himself or herself. I have inserted “photographs” of my fill-in-the-blank forms, a work in progress, at the end of this article. I will try to remember to update them as we are able to improve them. Write me at email@example.com, and we can send you the files as Word or PDF files.
8. Mankind is a story-telling species. We love to share stories. Most of us are not trained in the law or the presentation of evidence, so it does not come naturally to gather it and provide it to your lawyer.
9. And some of us are not very good story tellers; we ramble, digress, lose focus, and forget to document. Our job as lawyers is to channel that and turn it into something understandable to the court or jury.
10. So, in preparing for a contested trial, hearing, or even a mediation, we need a method to gather facts and a plan to organize and prove them. That’s where a good trial lawyer, with an excellent plan and staff, becomes essential.
11. And, as questions and concerns pop into their heads, we must have a method for recording and cataloguing them. That’s where “Burt’s Top 14Ten Lists”, below, come in handy.
The Initial Interview
12. When I first meet the client, she/he wants to give me a narrative (the story), and sometimes he/she becomes a bit impatient, or offended, if I don’t let them tell it.
13. I ask them to trust that I have learned some things in 42 years. I explain that I must ask essential questions before it even becomes relevant for me to learn “the story”. This allows me to absorb “the story” in digestible bites.
14. Occasionally, the client turns it into a power struggle. Very occasionally, the client makes me realize I do not want to represent that client. So be it. Better to part then than later.
15. Another indicator is whether a potential client has bothered to fill in our intake forms. Once I confirm they are of normal intelligence and literate, I carefully explain that working with their lawyer is just that, WORK. It is the client’s life, and I need to know she/he is ready to help me gather the facts and do the job to protect them and their family. Some people simply are not willing to make the commitment in their own case. Others are simply not able, and they deserve our concerted attention too. I prefer the client who is ready to become a willing partner in the endeavor.
16. The “three legged stool” of organizing your case has these components: (Please memorize!)
- Object lists:
- Burt’s “top ten lists”;
- A timeline. (Also called a chronology of “facts” by Casemap.)
Simple, right? Not at all, but if you take it a step at the time, it is manageable.
17. Here is the simple part. “Objects” are the “pieces of the puzzle”. Think of the 1000 piece puzzle you poured out into the kitchen table and finished on a long rainy Sunday afternoon.
Objects are the;
b. Documents (paper and digital);
d. Places; e. Events;
f. physical objects (the knife or brick); and,
e., every other item that will be included in a detailed narrative of the parties and their dispute.
Here is CaseMap’s full list of objects:
18. In a divorce case, the witnesses know about abuse, who committed abuse, who performed the parenting duties, who slept with whom, and much more. Other puzzle pieces are the personal property (moveable items) and real property (land, houses, and commercial property, the debts, the parties’ income, the retirement benefits, the credit card debt, medical bills, debts on property, and the pre- and post- separation budgets of the parties. All those pieces must be present for the Court to “picture” the case.
19. In a personal injury claim, there are witnesses to the collision, an investigating officer, emergency personnel, photographs, the accident report, cell phone records, medical bills, medical records, journals, lay witnesses who know my client well, expert witnesses, and myriad other “objects”.
20. In a land dispute, there are deeds, wills, deeds of trust, angry neighbors (or siblings!), aerial photographs (now usually Google Maps),………you get the point.
“Burt’s Top Ten Lists”
“21. Top Ten Lists” are not usually exactly ten in number, and they aren’t jokes in The Letterman show. They are my clients’ questions, worries, goals, complaints about the other party, and their wishes.
22. The mediators who work with me sometimes ask, “May I see your list?” because they know my client and I will show up at mediation armed with our lists, so we can check them off and not leave mediation without addressing every important issue.
23. Some clients never run out of questions. I answer them, but I also say, “Be sure to put that down on one of your “top ten lists”.
24. Remember, “object lists” are different. They are the people, documents, e-mails, texts, physical objects, places, events, and organizations that populate the facts of every case.
25. Two rules for my “top ten lists”:
a. Put a title at the top! E.g., “Why he is a terrible parent?”, or, “What do I want from this mediation?”, or, “What she did to abuse our children.”, or, “The reasons I did not cause the collision.”, or, “My symptoms from the collision.”
b. Each item must be concise, 1-2 lines, and numbered in a list, directly below the title.
26. We use the “Object Lists” and “The Top Ten Lists” when we create our timeline of facts. We sort them chronologically. Then we put the important ones into TimeMap in individual flags. It is a handy little app, but hardly worth hundreds or thousands of dollars a year.
27. Some of our Timeline Exhibits are ten feet long. In those cases, I insist on a second timeline exhibit selecting only the very most important items. “Mapping events” in the order they happened is an invaluable tool. Do not go to trial if you have not mapped your events,
28. It is these exhibits that are the “maps” of our presentation. They make up the story that we present to the just or mediator.
29. BUT, instead of a rambling story, our timeline is supported by the witnesses and exhibits we need.
The Interview II
30. There is a fair, but incorrect, criticism of me that I am not a good listener. Being assertive, and anxious to educate, I have a tendency not to listen and even to “over-talk”. How do I combat that flaw? That’s the whole point of my method! I use my brains to work around my flaws, to the benefits of my clients.
31. I only appear to be a bad listener. I ask lots of narrowly focused questions, so I can get to the essence of the dispute.
32. It is hard for my clients, and even opponents, to envision how tens of thousands of hours of experience allow me to learn much from focused, relatively short, answers. I can filter and understand in a way that I never could as a younger man. And, if it is a “yes or no question”, I insist the client answer before explaining. Now that can be really tough!
33. I have to chuckle when some guy whose philandering, drug using, wife is wrapping him around her finger, says, “You don’t understand!” They think they are the only guy who has ever been through this, but I have known dozens/hundreds of them!
Sizing Up My Client
34. I can tell from how a client answers, how good a witness he or she will likely be, and we adjust accordingly.
35. I can turn an average witness into a good one, and a bad one into an average one. If someone breaks down in front of me, I warn them that our opponent counsel might “make mincemeat” of them if they do not learn to stand up for themselves. If true client gets angry, I point out that if they overreact to someone on their side, there is going to difficulty dealing with a determined adversary.
36. If I ask a “yes or no question” but get an “explanation” in reply, I know they are embarrassed by the answer, so I insist they learn to answer questions directly and explain later.
37. The judge will notice in an instant the witness who will not answer a question. And, I must know the worst the other side will have against us, so I can inoculate my client and my case.
38. We practice until they can answer a simple “yes or no” question, knowing that they will get to explain when I ask them some follow up questions.
Witness Credibility and Accuracy
39. I have written about this before in “Burt’s Lie Detector”, http://hunterlawfirm.net/burts-lie-detector/ .
40. We lawyers must try to gather accurate facts, but WV divorce lawyers do not usually have private investigators at their beck and call. It is essential that we get accurate facts from our clients. I use “Burt’s lie detector” and diligent questioning to a point where the evidence that we gather later usually is quite consistent.
41. It drives me to distraction Lawyers who pontificate, accuse, exaggerate, and fail to test their own clients’ credibility. It is a plague on our profession.
So, Let’s Come Back to My “Method”.
42. I stress to the client that at this stage, don’t leave out any person. It can be a former lawyer, the judge, a spouse or partner, a neighbor, a Facebook friend, school teacher, counselor, grandparent, witness to the collision, or a neighbor. It does not matter that the person doesn’t want to be involved unless they are threatening to lie if called. Even then, sometimes they have to be called, and I MUST identify them.
43. I disclose the whole list, which creates a challenge for my opponent, since they do not know the 3-6 witnesses I will actually call out of perhaps 50 “people objects”.
Discovery and Disclosure.
44. Some lawyers will “hide the ball”; see my post, “Why Play by the Rules”, http://hunterlawfirm.net/wp-admin/post.php?post=247&action=edit .
45. Such lawyers will answer an interrogatory on a Monday that they know of no potential witnesses or exhibits, and on Friday, the deadline for filing her witness list, they will suddenly discover that they have 35 witnesses and 66 exhibits!
46. That, my friends, is a disingenuous lawyer!
47. We can win and play by the rules, so that’s what I do. It is the same with documents. We grow our list as the documents come in, so it is easy to disclose them when the time comes.
The Pretrial Memorandum and/or Proposed Final Order.
48. Since the Court’s scheduling order includes a deadline for filing a pretrial memorandum or proposed final order, my method is invaluable.
49. The pretrial memo needs a list of all legal and factual issues (disputes), a list of all exhibits, and a list of all potential witnesses and short summary of expected testimony. The proposed final order must have detailed findings of fact and conclusions of law. Thus, the collection of our “objects”, the puzzle pieces, makes perfect sense.
50. My experienced paralegals prepare a draft memo for me, which requires very few major revisions.
Timeline Chronology of Facts
51. For trial, and occasionally for motion hearings or mediation, we used CaseMap’s “TimeMap” module to create the visual timeline. This lists the sequence of events, the documents, texts, e-mails, and FB posts, contracts, deeds, bills, and receipts in chronological order, even the fist fight on the front lawn.
52. “Time Map” is a perfect description of this product. We tie it to our exhibit list, and use it so the judge can nor follow our “story, our “map” of the facts. We check off the exhibits as we present them.
Laying the Foundation for the Admission of Evidence
53. Every exhibit must have a “foundation”. What does that mean? Documents, or even “things”, such as a brick or knife, must be identified or authenticated by a witness. Laying the “foundation” for admission of evidence is a critical skill for a lawyer, and something a self-represented person simply cannot do.
54. During my years as a U.S. Air Force Prosecutor, we worried about “chain” of custody, since exhibits often passed through several hands.
55. My family court clients simply do not have tens of thousands of dollars to pay for meticulous presentation of piece after piece of evidence. Therefore, sometimes I simply have the client attest to the authenticity of the timeline, confirm which items have documentary proof, and “forget” to offer all of that detail into evidence.
56. I can do that knowing that I know, and the other side knows, I have the documentation to back it up.
57. So, the “timeline exhibit” may have only 1% of the volume of everything we have but most of the substantive content. It is the tip of the iceberg. It is a strategy for “the real world” of family law where time is money and where money is exactly the thing that the parties usually do not have. If you want to avoid a trial, convince the other side you are ready for a trial.
58. In civil cases, such as a dispute over a boundary line or a will, more exhibits (deeds, wills, contracts) are offered and admitted, but the timeline exhibit remains an essential part of the presentation.
Personal Injury Cases”
59. In personal injury cases, the fees are contingent, so we owe to the client a full presentation of evidence, even when jury verdict expectancies are under $50,000. But, the collection of evidence, police reports, photographs, and “lay witness letters” about the injured party’s symptoms, medical records, and medical bills, is still absolutely essential.
60. As I have been fortunate to have many substantial and serious personal injury cases, and, as I usually am able to settle the smaller cases via negotiations, I have several cases a year where I associate with major personal injury firms, who try lots of cases. They assume responsibility as “lead counsel”.
61. I remain local counsel. In all but a small number of cases, I remain actively involved in the case, attending depositions, motion hearings, and mediations. We are the client’s local contact.
62. But, the larger firm takes on the larger share of litigations costs, which can range from $20,000 to $100,000. I have privileged to be involved in several “seven figure settlements”. Those cases powerfully impact our clients and our firm. It is my personal injury practice that allows me to have four employees, and to “rub shoulders” with some of the finest lawyers and experts in WV.
Expert Consultants and Witnesses.
“Experts”; what’s that? An “expert” in a case knows more about a subject than an “average citizen”.
Here are some; a mechanic, contractor, real estate appraiser, counselor, doctor, professor of real estate law, and insurance expert.
Finding the right expert can be the key to success or defeat. Sometimes an “expert” doesn’t need to become a witness. For example, there are “conflict counselors” who can help people, or parents and children, to communicate and cooperate. Or the parties can share the cost of a real estate appraiser and “stipulate” to the value of the property. That saves hundreds of dollars. At other times, it is the expert’s opinion that causes the other side to settle.
“Stipulate”; what’s that? Parties can agree that a certain fact is true, such as the time and place of the collision, or the date of birth of their children, or to the testimony a certain witness will give, so they don’t have to be called. We were required to do that in the USAF JAG Corp.
WV lawyers, especially divorce lawyers are absolutely terrible at stipulating. It is stupid and childish, but I cannot get my colleagues to stipulate that we live on planet earth! They should consider it a moral and ethical obligation. And there should be mandatory deadlines and sanctions for a lawyer not to reply timely, or not to stipulate to a fact that later is proven to be true. To the extent there are such rules, they aren’t followed. WV judges just do not demand that of lawyers.
What an unfortunate waste, but law schools must spend zero (0) time on this subject. I have yet to have a WV lawyer do what we JAGS had drilled into us, stipulate, stipulate, stipulate!
The article turned into a book! Below are our intake forms. Print them, and try them. I hope that if you are a smart client, or a lawyer learning the craft, that these ideas are of some use to you.
This post was written by Burton Hunter