In popular culture, a trial often hinges on a single moment – an accidental admission of guilt or sudden epiphany from a budding lawyer. But when a matter heads to a final arbiter in the real world, a legal team will have spent months or even years planning and preparing. Almost nothing in a trial, hearing, or arbitration should be left to chance.
This guide gives an overview of the case preparation strategies we recommend for our clients when managing modern litigation. To begin, letís step back and look at where case preparation fits into the larger picture.
The Ediscovery Finale
In our Guidebook series, we have relied on the Electronic Discovery Reference Model (EDRM), which features nine distinct ediscovery stages. Presentation, the final stage, centers on building and presenting an argument based on the produced evidence.
A well-presented case tells a story. A judge, jury or panel should be able to understand your story in a few sentences. It is the task of your trial counsel to prove that story. Just like a good novel, consider the conflicts, rising action and main characters, then lead the audience to a logical conclusion.
Although ‘presentation’ is the final stage, you should plan for its execution from the beginning. As you review documents for relevancy, start to think about the story you will build. The goal is to narrow down the universe of documents so that you're ready to focus on the exhibits most meaningful to your story when you transition to case prep and presentation.
Firms with well-oiled ediscovery workflows will move documents into their litigation databases as soon as they are produced. This allows their trial team to immediately prepare for depositions or even begin creating presentation slides and graphics. As they begin taking depositions, it will be easier to see how witnesses relate to each other and if they tell a consistent story.
Of course, many of the phases of discovery and trial preparation bleed into each other. Review is an ongoing process, and most discovery is done on a rolling basis. You will likely continue to produce evidence even as you start to take depositions and begin preparing your case timeline. You will need to have a structured process but remain flexible if new evidence or information emerges late in the review process.
Lean On Software For Organizing Exhibits
Perhaps the most important “blocking and tackling” decision is how you will execute exhibit stamping so that your files and exhibits are organized and coordinated. Should you use old-school exhibit stamps or apply them with an online tool?
Evaluate your current resources and consider whether the case merits investing in a new tool. Perhaps you successfully used Adobe Acrobat for exhibit stamping in the past, but now you suddenly find yourself faced with hundreds of new exhibits to stamp on a tight deadline. Comprehensive litigation software like Nextpoint will speed up this process and improve efficiency in your trial preparation.
As you organize exhibits, remember to keep your established ESI protocols in mind so that youíre ready for a smooth production and file exchange process when the time comes.
Building Your Case: Tell A Compelling Story
The base of your story will consist of three key components: the who, what and when. First, determine the “what” – the key issues and themes at stake in your case. The next step is understanding the “when” and building a timeline. A clear story depends on a cohesive chronology, so this timeline should become the backbone of your final presentation. Finally, dive into the “who” – the cast of characters and key players significant to your story.
Litigation software like Nextpoint will help you find patterns and analyze the issues, events and characters in your story. Tag and annotate documents with notes relating to key themes. Use metadata to filter evidence by date and determine the central points in your timeline. Build witness folders, prepare for depositions, and tag transcripts with notes to keep track of the characters in your case and analyze their relationships.
Building Your Case: Taking Depositions
Depositions are a key component of any litigation, and since they are often conducted with time constraints, proper preparation is essential. Unfortunately, the deposition process is often left to the last minute because review teams are struggling to finish combing through documentary evidence.
Take note of potential deponents and relevant questions during the document review stage. You have freedom to improvise as new information comes to light, so start building a plan and remain flexible as you uncover new evidence. Identifying key deposition materials for your team in a timely manner can radically change the course of litigation.
When you go into a deposition, know the facts of your case to the extent possible. Know the claims. Know the law and the objections that can be raised by opposing counsel. Be sure to bring copies of your deposition exhibits for everyone in the room.
After you take depositions, you can use software like Nextpoint to code transcripts with metadata and add searchable fields. By utilizing a secure, online repository, you can organize the database to share notes and highlights with your team.
Building Your Case: Preparing Witnesses
Witnesses and evidence are the two major pillars that contribute to a winning case. Preparing your witnesses is imperative to obtaining strong testimony that will lead to a favorable decision. Compile any exhibits relevant to the witness so they can review them ahead of time. Highlight and make notes on important information to emphasize key takeaways from the exhibit.
If your witness has done any prior depositions, have them watch clips so they can see areas for improvement and give a more polished testimony. You can also walk witnesses through a courtroom simulation to help them achieve the confidence to appear comfortable and credible in court…
Get the Complete Guide:
This has been an excerpt from: The Essential Guide To Preparing Your Case For Trial, Hearing, Or Arbitration. Download the entire 12-page guide to learn valuable tips on assembling and presenting evidence to build effective, winning arguments. It even includes a Final Checklist for your team, to ensure you’re prepared for any issues that may arise throughout the process.