McElhaney on Litigation

Channeling Discovery


“We have whole eche­lons of the best lawyers from the finest schools. We have great people in charge of every practice group in the firm. We have an organized, coordinated method of case management, from the moment they come in the door to final disposition,” said Nick.

“And yet?” said Angus.

“And yet for the past two years, Randolph and Wheel­­er has been slithering into mediocrity,” said Nick. “Our results keep going down. We’ve taken too many big hits, lost too many cases we should have won.

“I’m convinced our litigation problems begin with the way we handle discovery,” said Nick. “So do me a favor, Angus, please. Spend a week with us. I’ll tell everybody you’re consulting on the Electro-Toys patent case we’re working on–and you will be. But you’ll spend most of your time figuring out what’s wrong with the way we get ready for trial.” Angus took the job and brought me along as an assistant. Two weeks later, Nick Wheeler called a meeting of the litigation practice group and turned the meeting over to Angus. I took notes; here are the highlights:

Get ready to win. The idea comes from a great final ar­gument in a personal injury case by Jim Jeans of Platte City, Mo. He started out on an unusual note by describing the habits of bull walruses, who every spring heave themselves onto the arctic ice floes to pick the leader of the pack.

The bull walruses put on quite a show. They menace each other. They woof and snort. They bellow and shake their heads. They start to charge, then dodge and feint.

But they don’t actually fight. They stop short of physical contact. Instead, they size each other up and decide who would win if there were a fight–which there is not going to be. For a walrus, the point of discovery is to posture on the ice floe, trying to impress your opponent with every woof and snort, every dodge and feint.

For a trial lawyer, the purpose of discovery is to help get a case ready for a trial that you are determined to win.

Find a winning story. The point of discovery is not to just keep doing things until you run out of time and your client runs out of money. That’s walrus work, and it’s unethical, to boot.

Nor is the point of discovery to simply gather enough facts to get past a motion for summary judgment or a directed verdict. Minimal facts can open the door to the courtroom, but without a winning story they are not enough to get you a verdict. From the time a case walks in the door, your job is to put together the right story. Discovery is part of that job.

But wait, you say. How can you put a story together until you know what you’ve got to work with?

Turn that idea around: How do you even know where to start or what to ask if you don’t know what you’re looking for?

The paradox is that you need discovery to find the story, and you need the story to shape discovery.

Done right, it’s interactive. The story guides discovery from the beginning, and discovery changes the story as you go along.

But most lawyers don’t do it that way. They typically put off working on the story–putting the case together and testing their ideas–until shortly before trial. That tendency is particularly common in massive cases, where it is easy to get so obsessed by individual trees–little bits and pieces of the case–that no one has a picture of the whole forest. By the time large litigation firms hire jury consultants to help them understand their own cases, it is often too late to fill in what’s missing.

Fragmenting discovery among different law firms, different offices or different practice groups in the same firm can result in no one person knowing the entire case.

But most of us don’t fragment discovery. We’re on top of what is going on. We’re sure we could never lose sight of what a case is about. Looking for the right story must be someone else’s problem.

If that’s how you feel, try this simple test: Tell the basic story of one of your cases to a layperson in 30 seconds or less. If this person doesn’t understand the case or does not think your side should win, your story needs work.

Use informal discovery. One of the biggest mistakes you can make is to assume that formal discovery will produce everything you need to win the case.

The problem is that discovery is a very slow and expensive way to discover anything. In most situations, formal discovery is better suited to nailing down what you already know than it is to learning facts for the first time.

So before you even start discovery, you need to educate yourself. Talk to your client and your witnesses, study the facts, go to the scene, visualize events, diagram interrelationships, ask everyone–especially yourself–probing questions. Don’t settle on any one theory yet. Keep your mind open and list all the different possibilities.

Beware of the mindset that you’ve seen it all before. (You know how maddening it is when the judge does that in a case you are trying. A made-up mind is a closed mind.) Circumstances can be misleading; this case may be an exception to the general rule. Look for the moral imperative. From the very beginning, start looking for the moral imperative of the case: the injustice, the unfairness that cries out to be set right if you represent the plaintiff or justifies your client’s conduct if you represent the defendant. Look for the moral imperative on both sides. Unless you are aware of the other side’s strengths and your weaknesses–and your strengths and their weaknesses–you don’t really know the case.

Then start asking yourself: What facts do I need to make this moral imperative come alive? Make finding those facts a focal point of your discovery.

But wait. Is this worth the trouble? The moral imperative is not an element of any claim or defense. Why should we bother with it?

Because nothing is more persuasive to a judge or jury than the call to right a wrong. The facts behind the moral imperative are going to be the heart of your case.

Question your own case. Expect your own client to lie or at least be mistaken about some important facts. Look for your client’s omissions and misrepresentations and misleading remarks. Do what you can to set things straight before your client’s impulse to make the case better than it is gets frozen in a deposition or in the response to an interrogatory. Look for different sources to corroborate essential information. It is especially valuable to get corroboration from the other side’s own witnesses or from impartial sources. Try to find corroborating circumstances that don’t depend on anybody’s bias.

Be on the lookout for inconsistencies between what your witnesses say and what they have done.

Watch out for treachery. Family businesses and family cases are filled with family troubles. There is nothing like sibling rivalry to make witnesses who ought to be loyal actually relish the opportunity for revenge.

Always look for why. The law almost never requires proof of motive but almost always permits it.

The danger is real. Psychological tests have shown that if decision-makers can’t think of a reason why something took place, they may conclude it didn’t happen.

Use focus groups to guide discovery. Even if they’ve never done it themselves, most lawyers are familiar with using focus groups and mock trials to help sharpen the case in the last weeks before trial.

But to guide discovery? Isn’t that forgetting where the cart is supposed to go? Jack Robinson Jr., a solo practitioner in Heath, Texas, near Dallas, had a case that looked like a dog. At 3 in the morning, his client drove his pickup truck under a semi that was pulled completely off the side of the highway.

It looked like the plaintiff probably just fell asleep at the wheel and ran off the road–the kind of case in which the jury would send him home with nothing.

Robinson wanted to know what facts would make a jury want the plaintiff to win. So early on, he had focus groups look at the case and tell him what they would need. They gave him 20 different, specific things that would change the case.

With that list as his road map for discovery, Robinson put together a case that settled before trial for $750,000.

But isn’t this terribly expensive? Not necessarily. If you hire a professional jury consultant to frame the issues and ask the questions, you can easily spend $20,000. Hire eight typical jurors to spend a Saturday morning with you answering questions, and you can do it yourself for about $500 a round.

When Angus finished, the entire room was quiet. Everyone looked thoughtful. Then Nick stood up and said, “One last thing. This is not the ‘litigation practice group’ anymore. This is the ‘trial practice group.’ There is a difference.”


James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.


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