In one scene from the 1995 Ron Howard film Apollo 13, NASA Mission Control learns that the damaged spacecraft and landing module are not adequately filtering carbon dioxide; unchecked, the onboard air will become toxic to the astronauts. A frantic team of engineers assembles in a workroom and empties a box of spare parts onto a table as their spokesman explains the problem: “We gotta’ find a way to make this [holds up a square filter] fit into the hole for this [holds up a round filter], using nothing but that” [surveys the material strewn on the table]. The engineers begin to sort through their options, while one engineer prepares for the inevitable all-nighter: “Better get some coffee going.”
A similar scene is all too familiar to defense lawyers huddling in a cramped war room at a trial site in the late stages of the proceedings. The sensational closing argument has been scrapped, and the only way to land the client’s case safely is to clear the air by rigging the parts available: the discovery brought along from the beginning of the case, often years earlier. The problem? Despite a number of legitimate rationales and drivers, discovery is rarely pursued — particularly in complex matters or mass torts — anticipating the trial presentation.
Why do we conduct discovery the way we do?
The mechanics of discovery are often influenced by the philosophical approach behind it. Further, the more sophisticated the client or law firm (or litigation), the more an approach to discovery may be governed by such “discovery philosophies.” Examples of competing approaches include:
- Supporting purely legal defenses or settlement. For some clients and lawyers, trial itself — even apart from verdict — is an unacceptable outcome. The relatively high costs of defense, risks of exposure, and inherent unpredictability of a trial dictate that discovery be had with one of two goals in mind: (1) to efficiently establish only those facts necessary to satisfy the elements of discrete legal defenses; or (2) to put the case in the most favorable posture for settlement.
- Punitive discovery. Other clients and their attorneys view the available tools of discovery as a means to harry and deter their opponents. The mindset towards the adversary is often to “make them pay” for engaging in the suit through discovery geared to draw off an opponent’s resources or to distract from the key issues.
- No fact too small. In still other scenarios, lawyers view discovery as just that and try to get as much information as they can in the hopes of unearthing support for as yet undeveloped factual or legal theories. These lawyers occasionally run afoul of judicial prohibitions against “fishing expeditions,” or client complaints of churning a file.
- Malpractice “insurance.” Here, while the discovery may look similarly broad to other approaches, the underlying rationale is very different. That is, sometimes expansive discovery is conducted not to support theories or to find new facts, but to hedge against a client critique by eliminating any foreseeable gap. This unfortunate approach puts more stock in preserving the lawyer’s book of business than in advancing the case.
Given these discovery rationales, it should come as no surprise that defense trial counsel often find themselves cobbling together mismatched facts and sifting through mountains of irrelevant data to craft a trial presentation. This also explains why plaintiffs tend to do a better job at theming and storytelling at trial. To be sure, there are inherent advantages in the plaintiffs’ “you are here to right a wrong” posture to a jury; however, much of this success can also be attributed to a direct, uncluttered approach to discovery.
With some statistics reflecting that as few as five percent of filed cases are ultimately tried, there may be a tendency to discount a trial approach to discovery. However, the corollary benefits of the approach may serve other goals, in addition to better equipping the (rare) trial presentation.
Begin with the Endgame
The notion of working backwards from a desired result is nothing new in management and development circles but may be overlooked in the discovery context. Three practical avenues to consider are:
- Jury instructions. How the judge instructs the jury on the law should inform how attorneys gather the facts. Writing proposed jury instructions when a suit is initiated helps to shape the ultimate issues and meaningful arguments throughout the life of the case. Instructions also help the attorney identify the elements to satisfy or reinforce through multiple sources of evidence.
- The “case law” paradox. Another familiar practice after the close of discovery is the scramble to distinguish the facts from the cases cited in opponents’ summary judgment papers. Rather than responding to “bad cases” after discovery has closed, consider finding “good cases” that support the client’s position, and use discovery to establish facts aligning the case with those holdings to reinforce the strength of the client’s case.
- Jury research. Often in high-stakes cases, clients will commission jury research exercises in which trial counsel may test themes or arguments with mock juries in advance of trial. The predictive value in these exercises need not be limited to established evidence; jury exercises before or during discovery can help attorneys identify what facts will likely be important or meaningful to the jury at trial, at a point when the attorneys may still be able to develop those facts.
Discovery conducted when employing one or more of these tactics may look very different from more conventional approaches.
Traditional law practice often delegates the preparation of discovery requests to young associates instructed not to “reinvent the wheel.” These young lawyers typically reformat existing sets of discovery from similar matters or prior sets prepared for the same client. Yet the early efficiencies gained from block-and-copy word processing can be costly at trial when discovery is incomplete or off-target. Further, with proposed changes to the Federal Rules of Civil Procedure affecting the proportional scope of discovery and the number and type of discovery requests, attorneys will be forced to conduct discovery more strategically, which dovetails perfectly with trial-guided discovery.
For interrogatories, it is important to consider a balance between broad inquiries and narrowly focused requests. An effective set of interrogatories should include both. Additionally, do not neglect the effect interrogatories have in signaling to your opponent your strategic thinking about the case. There may be instances, for example, when it is advisable to withhold some interrogatories until after certain depositions have been conducted, both to preserve the ability to follow up on newly discovered facts and to prevent opposing counsel from using the interrogatories as a “playbook” from which to prepare the deponent.
Requests for admission are also under-utilized as a discovery device. Too often, “RFAs” are considered requests for admissibility, not requests for admission. A well-crafted RFA can lead not only to a highlight in front of a jury (both atmospherically and substantively), but can often impact or limit your opponent’s litigation choices relatively early in the proceedings.
Finally, when it comes to discovery in general, we have all heard lawyers instructing the jury at the outset of a trial: “Don’t check your common sense at the door.” That is also sage advice for lawyers in discovery. Well-crafted written discovery should include good questions that will prevent “loophole” deflections or responses without bogging down in indecipherable legalese.
For clients and lawyers alike, the term “e-discovery” may evoke apprehension and fear. The generational divide between older clients and attorneys and the technological changes to both the corporate business model and the practice of law is rarely more evident than with the question of navigating e-discovery. However, there are two practical solutions for lawyers and clients facing e-discovery issues.
- Find an expert. E-discovery is now so much a part of litigation that companies have protocols and law firms have developed specialized practices to field e-discovery issues. The implications of mishandled e-discovery are too great to “wing it.” Where clients and lawyers lack the specialized skill set to deal with e-discovery, it is critical to partner with someone who does.
- Be an expert. Forward-thinking firms are also building internal systems to tackle e-discovery issues head-on. Task forces and working groups of lawyers are pursuing training and certification in e-discovery issues, while corporate clients have developed document retention and collection systems to avoid discovery problems.
While written discovery and e-discovery can make or break a case, depositions are the backbone of trial-guided discovery. Tactical approaches to depositions require analysis from two perspectives.
- The witness perspective. Witness testimony at deposition has a lasting, binding effect on the case and sets the bounds for the approach to the trial. One quote can make the difference in whether the witness is called or not while — particularly in lengthy, complex litigation — the deposition may outlive the witness (both literally and figuratively). Lawyers must approach the deposition with clearly articulable goals to elicit testimony (What testimony do I need from this witness?) and to fix that testimony (What can I do to prevent my opponent from distinguishing or distancing the witness from the testimony I need?). Further, given the tension between a “perpetually available” deposition transcript or video and the dynamics of trial schedules and witness availability, lawyers should take a hard look at the conventional wisdom of deferring questions for friendly witnesses. That is, given the risk the witness may not appear at trial, lawyers may not want the only voice or questions a jury hears with a witness to be the opponents’.
- The lawyer perspective. As important as the “what” of a witness’ testimony is the “how” and “when” of the lawyer’s questions. The way a lawyer crafts and orders a deposition outline can directly influence the answers the witness gives. Situational awareness is critical to determine the appropriate instances to ask open-ended, narrow, or leading questions. Further, while the goal should be fixed testimony where it is helpful, “bad answers” need not be set in stone; lawyers should consider options to rehabilitate testimony at the deposition or even to leverage that testimony for some other purpose (like an alternate legal claim or defense). Finally, plaintiffs’ counsel often approach depositions with the goal of collecting sound bite testimony to be natural highlights of a trial presentation. Too often, defense counsel view such efforts as unseemly or misleading. For trial-guided discovery, however, “sound bite” is not a dirty word. Short, direct, memorable testimony is a powerful tool in a trial presentation; defense counsel would be wise to adopt it as one weapon in the arsenal for trial.
When it comes to experts (particularly opposing experts), trial-guided discovery may not differ too significantly from other-purposed discovery. For example, it is a universal goal to establish limits to the scope of an opposing expert’s expertise and opinions. Some trial-guided tactics, however, may seem otherwise counterintuitive.
- Establish points of agreement. Any valid opposing expert will offer opinions diametrically opposed to the client’s view of the case. But short of these “ultimate” opinions, there should be available common ground. Memorializing these agreements — as to objective standards or benchmarks in the field of expertise, e.g. — can provide a launching point for a trial cross-examination, with a simple jury assumption that trial counsel is “winning” the exchange.
- Don’t avoid “bad testimony.” One mistake lawyers often make is to conflate their approach to depositions between party witnesses and experts. One goal in party witness depositions is to avoid, limit, and rehabilitate bad testimony; however, with experts, bad testimony is expected. The goal of an expert deposition should not be to avoid bad testimony but to exhaust it, in order to fix the limits of that testimony at trial.
- Go right at ’em. Similarly, many lawyers attempt to contest opposing expert admissibility and testimony by attacking discrepancies in the expert’s peripheral opinions or methodology. However, “nibbling at the edges” of an opposing expert’s opinions has little effect at trial; the jury wants to focus on the big, determinative issues. Particularly when dealing with professional or well-seasoned expert witnesses, it is important to understand and establish specifics of the expert’s opinions; otherwise, lawyers risk general and dynamic critiques at trial that are difficult to rebut.
We’ve all seen brilliant “extemporizing” in closing arguments from movies or TV shows ranging from To Kill a Mockingbird to Law and Order or Boston Legal. Some of us have been fortunate enough to witness a few in “real life.” These elegant arguments are scripted, of course; whether factual or fictional, they are bounded by the limits of available discovery and evidence. Viewing discovery through the lens of closing argument should not discourage the approach in other contexts, though. Trial-guided discovery can favorably shape an approach to the resolution of a case from motion practice to settlement; it just happens to have the added benefit of a trial presentation that doesn’t attempt to fit square pegs into round holes.