2021 Revised: Digging Down – On Organizing and Preparing Your Case

INTRODUCTION

First; in the interest of time and copying, I provide here a link to the PDF version of this article, especially the fill in the blank forms:

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” instead of “The Old House”.
My plan is to explain this method in 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.
My method uses some basic forms so the client can save money by collecting the puzzle pieces himself or herself.

THE BASIC CONCEPT

(Object Lists, Top Ten Lists, and The Timeline)

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.
And some of us are not very good storytellers. We ramble, digress, and lose focus. My job as a lawyer is to channel the energy and turn it into something understandable to the court or jury.
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. 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 Ten Lists”, below, come in handy.

THE INITIAL INTERVIEW

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.
I ask them to trust that I have learned some things in 40+ 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.
Occasionally, the client turns it into a power struggle. Very occasionally the client makes me realize I do not want to represent that person. So be it. Better to part then than later.
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 are not able, and they deserve our concerted attention too. I prefer the client who is ready to become a willing partner in the endeavor.

MY METHOD

The “three-legged stool” of organizing your case has these components: (Please memorize!)

I. Object lists:
II. Burt’s “Top Ten Lists”; and
III. A timeline.

Simple, right? Not at all, but if you take it a step at the time, it is manageable.

OBJECTS, AKA PUZZLE PIECES

Here is the simple part. Objects are the pieces of the puzzle that is your case. Gather and sort them, and the picture appears. Objects are the people; documents (paper and digital); photographs: places; events; physical objects (the knife or brick); and, every other “thing” that will be included in a detailed narrative of the parties and their dispute.
Objects can be the people who know the facts, the potential witnesses. 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.
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 “puzzle pieces”.
In a real estate dispute there are deeds, wills, deeds of trust, angry neighbors (or siblings!), aerial photographs (now usually Google Maps),………you get the point. Every case involved important information, in more pieces than you think.

“BURT’S TOP TEN LISTS”

Top Ten Lists can be more, or less, than ten, but each list pertains to one category. They are my clients’ questions, worries, goals, complaints about the other party, and wishes. They are the memory ticklers, the checklist.
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.
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”. These “memory ticklers” are the checklists which help drive our preparation. They and the “puzzle pieces” merge to tell the story and complete the timeline. Remember, “object lists “are different from “top ten lists. They are the people, documents, e-mails, texts, physical items, places, events, and organizations that populate the facts of every case.
TWO RULES FOR MY “TOP TEN LISTS”:

Put a title on the top of each list! 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.”, or “My Injuries”. Each item must be concise, 1-2 lines, and numbered in a list, directly below the title.

THE TIMELINE

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 a timely with individual flags.

Some of our timeline exhibits are very long. In those cases I insist on a second timeline exhibit selecting only the 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. If you do you will stumble and perhaps fall. Time and sequence are keys!

Timeline exhibits are the “maps” of our presentation. They are the story that we present to the judge, jury, or mediator. Do not forget that instead of a rambling story, our timeline is supported by the witnesses and exhibits we need.

THE INTERVIEW II

There is a fair, but incorrect, criticism of me that I am not a good listener. Being assertive, and anxious to educate, I tend to move the witness along 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. I learn what I need from the interview, and we build the puzzle into a complete picture.
And, 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.
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 tough! 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

I can tell from how a client answers how good a witness he or she will likely be, and we adjust accordingly.
I can turn and 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.
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.
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.
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.
IN CLOSING: Please gather those puzzle piece, make your various lists, complete that Timeline, and help you lawyer be the best that he can be, for you.

This post was written by Burton Hunter