Posts Tagged ‘workflow’

Litigation Process Overview

litigation process overview

How to Use Graphics in Your Openings and Closings

Bad opening statements tend to be littered with phrases like, the “sacred right to a jury trial” and “dates back to 1215,” as well as references to King John’s work on the Magna Carta (an event with which most American jurors are not familiar and about which they don’t much care).   By the same token, bad closing arguments tend to be a repetition of opening statements (with the tense changed from “we’re going to show you that…” to “we have shown you that…”), plus a reiteration of the evidence presented and the arguments made, even when that evidence and those arguments are as dull as dry toast.

There is a whole other way of envisioning, constructing and presenting opening statements and closing arguments—one that creates an arc of engaging narrative from beginning to end.  Indeed, the most successful opening statements plant the rhetorical seeds for the closing argument, and the most successful closing arguments can trace their rhetorical antecedents back to the opening statement.

Graphics can help deliver more effective opening statements and closing arguments by easing the introduction of complex information and allowing attorneys to take a more teacherly role with jurors.  Graphics can also help weave narrative threads from the beginning to the end of the case, which help create a more unified presentation.

In order to create this thread or narrative arc; however, the goals of both opening statements and closing arguments need to be understood.  The first goal of the opening statement is to outline what the case is about, or as I like to say, outline what the case “is really about.”  The “what it’s really about” version isn’t an explanation of tortious  breach of contract or major financial fraud.  Instead, it’s the version of the case that you would tell a friend at a PTA meeting: e.g., “This case is really about a man who was so greedy that he ignored the law and his conscience and stole millions of dollars from innocent elderly people.”

Trial graphics can help underscore what the case is “really about” by providing easy-to-digest visuals.  In a case launched by the SEC against the former CFO of Waste Management, for instance, the SEC needed to show that the case was about a man who massively defrauded the government, investors and employees by falsifying financial reports.  But in order to do that, the jurors had to understand the basics of corporate accounting procedures, the stock market and government oversight of publicly held companies.  To do this, a series of slides was created to present a flow chart of how accounting departments normally give financial reports to CFOs, who then communicate the information to investors, employees and the government, who, in turn, provide feedback in the form of stock prices and investment behavior.

The next series of slides showed what the CFO did:  he took the information provided by the accountants, falsified it, and then fed that false information to the investors, employees and government.  Then a bold black arrow was used to show that he sent orders back along the chain of command demanding that the original information be destroyed.  The final slide simply presented bullet points stating that the CFO: “deceived the public; knew what he was doing; and had no excuse.”

The second goal of an opening statement is to provide the facts in some kind of memorable order.  Often—but not always—this requires a chronological overview of the case. 

The third goal of an opening statement is to display key documents and start the process of explaining their significance.  Now, it’s easy to throw a page from a deposition up on an overhead projector and let the jurors scan it for the most important phrases.  However, it’s far more effective to use highlighting, enlarged text and other emphases to call those words out to jurors, so the document and its significance can be quickly introduced – and then move on.

The fourth goal of an opening statement is to define key terms and concepts.  This creates a foundation of understanding from which jurors can proceed to examine the evidence during the case-in-chief.  For example, the jurors may need to know the definition of “equivalent,“ for instance, or what asbestos does in the lungs, or the nature of commercial loans.

The fifth and final goal of the opening statement is to demonstrate a basic level of expertise and mastery of the case.  On the simplest level, graphics can help achieve this by giving the attorney something to stand next to besides the podium.  (A really good graphic may even inspire an attorney to move their arms around a little bit.)  On a more complex level, graphics help display mastery of the case because just the process of thinking about graphics makes you master both the core themes and intricate details of the matters at hand.

The graphics that are developed for closing argument will necessarily be of a different type, because the purpose towards which they are used is different. That is, a closing argument is not just a repetition of the opening statement – at least in the hands of a good lawyer.  A good lawyer takes what they said in their opening statement and uses inference, larger connections and allusion to get past the facts to the deeper meaning of the case.

As such, the first goal of a graphic used for a closing argument is to address the law and argue how it should be used in your favor.  Examples include lists of the elements necessary to make a claim, for instance, or other illustrations meant to make legal concepts more clear.

The second purpose of a closing argument graphic is, whenever possible, to turn your opponents’ arguments against them.  In highlighting flaws in the opposing counsels’ own graphics with something as simple as a pointing finger or post-it note.  Or a graphic designer create a new treatment of the graphic in question – perhaps by providing a blow-up of a section of a timeline that is inaccurate, for instance.  Brand new graphics could be created that, say, juxtapose contradictory testimony (or testimony that leads to a totally different conclusion than that of opposing counsel).  This can be an exceptionally satisfying exercise – until, of course, your opponent turns around and does the same thing to you.

The third purpose of a closing argument graphic is to argue—just plain argue, in the noble tradition of Abraham Lincoln, Clarence Darrow and Atticus Finch.  Attorneys don’t argue that way anymore – perhaps because they go to trial less often and are not accustomed to structuring cases with argument in mind. However, the closing argument is where you can pull out all the stops and really try, rhetorically, to convince jurors that your version of the events is true and your opponent’s version is false. 

The truth is, you can argue your heart out in the closing argument, as long as it’s relevant to the case and not overly prejudicial.  That means you have a chance to be more than a historian – you have a chance to be a storyteller, a moralist, even an actor.  Just as your opening statement sets the emotional tone for your entire case, your closing argument creates the last impression your jurors will have of your case – and how you handled it.

The Litigation Process

the litigation process

Common Questions About the Legal Process

How Long Will My Case Take?

New clients regularly expressed the concern whether their case will take years to resolve. This misconception comes from cases in the news would have taken many years. However, for the most part, it remains a myth.

Let’s look at some of the factors which will influence how long a case will take. The first is the seriousness of the injury and how long it takes to complete required medical care and rehabilitation. As discussed earlier, no lawyer can put a value on an injury claim until the medical treatment has been completed and it is known whether the injured client fully recovered or will require future treatment. Some clients complete treatment in months. However, the most seriously injured may require years of medical care. This is one of the most significant factors influencing how long a case will require.

Once a client’s medical treatment has been completed, the lawyer and client must decide whether to attempt to settle the case or to file a lawsuit without settlement negotiations. Where settlement is pursued without a lawsuit, cases can be resolved in a matter of months depending on a variety of factors. The chief factor determining the success or settlement negotiations is the amount the injured party will except in compensation, and the amount the defendant will pay. No settlement occurs unless and until those figures converge.

The second factor influencing how long cases require is whether the case involves litigation in which a lawsuit is filed. In most jurisdictions, when a lawsuit is filed even routine auto accident claims require a minimum of six to nine months in order to complete the required discovery process and the get the case to a mediation conference. The vast majority of lawsuits in Florida do settle at a mediation conference or shortly thereafter. If the case does not settle at mediation and must be scheduled for trial, it may easily take an additional six months or longer, depending on how long is required to get on the judge’s trial docket. More complicated cases do require more time, especially when multiple defendants have been sued and are represented by separate lawyers. Coordinating the calendars of multiple lawyers requires more time to complete the litigation steps necessary to get the case set for trial

Many wrongful death cases involving fatal accidents can be settled more quickly, some without a lawsuit. When the deceased died during or shortly after the accident, there is no waiting period for medical treatment and rehabilitation to be completed. Obviously, death claims have enormous value. In cases in which there is sufficient insurance to fully compensate the survivors, litigation may be necessary in order to obtain fair and reasonable compensation. The decision of whether to file a lawsuit, or settle without a lawsuit, is always made by the client. Clients always retain the ultimate decision-making authority on this issue.

Some cases not involving serious medical conditions, such as surgery, may be settled within a year of the date of the accident when no lawsuit is necessary. However, there are a great many factors which influence the time required. I encourage clients with concerns about how long their case may take to frankly discuss those concerns. Many times it may actually shorten the process of resolving a claim by filing suit prior to the time the client actually reaches the completion of their medical treatment. That may allow the case to be worked up for mediation shortly after the completion of the require treatment. Each case is different. We routinely explore with clients the options available to shorten the time required to resolve their case.

Will my case go to court?

Most clients walking into a lawyer’s office wants nothing to do with having their case go to trial. Many expressed the fear that once they are a lawyer, that will lose control of their case. I emphasize with clients that they will remain in charge of whether they case settles for whether it will go in the litigation by the filing of a lawsuit. My role as a lawyer is to give them advice and guide them in the choices available to resolve their case in a way consistent with their goals. Very few clients come into a lawyer’s office wanting to file suit and go to the litigation process. That being so, why do cases end up in suit?

The strongest cases have the following:

1.Clear liability, for the other party clearly at fault;

2.No comparative fault, meaning there was no argument that you were also responsible for the accident;

3.Clear causation in which the medical evidence clearly shows the injury resulted from the accident with no pre-existing similar injury or condition;

4.Significant damages from serious injury or death;

5.Insurance coverage adequate to pay all damages provable.

Insurance companies are most anxious to settle the strongest cases, fearing a runaway jury verdict if it does not settle. Most cases, however, do not have each of these strong elements. Cases which are not as clear-cut either have questions of liability, in which the defendant argues. They are not liable for the accident, or issues of causation or damages in which they argue that the accident did not cause all of the injury or damages to the injured party. Such issues affect how much insurance company will pay to settle the case. Again, this boils down to the plaintiff arguing their case is worth more than the defendant says they are willing to pay. When the two sides cannot agree, after settlement negotiations have been completed, the plaintiff can either accept what the defendant is offering or reject the defendants offer in filed their lawsuit.

What Is Mediation?

Mediation is a process, which is used to attempt to bring opposing parties to reach an amicable agreement to settle their differences. It is used in all types of civil cases, including personal injury and dissolution of marriage. In injury cases it is sometimes employed before lawsuit is filed (lawyers refer to this as “pre-suit mediation”). Our focus is on mediation conducted after lawsuit has been filed. It is used in virtually all injury cases prior to trial.

Mediation is generally arranged voluntarily between the parties, but maybe court ordered as well. In many Florida jurisdictions, judges will not assign a trial date for a case until it has been unsuccessfully mediated. That is because nearly 70% of cases which are mediated after lawsuit has been filed will result in a settlement agreement being reached. Clinic called personal injury case in Florida, once a lawsuit has been filed, the parties will conduct discovery in order to learn the facts of each party’s case. Depositions of witnesses are taken and suborned interrogatories and documents are exchanged. Once the parties feel they understand each other’s position sufficiently, they will mutually agreed to conduct a voluntary mediation, one in which the Court has not ordered it to be conducted. In those instances in which the parties cannot agree to sit mediation, the court will order it.

Involuntary mediations, the lawyers for each party confer and reach an agreement on a mediator and date and place to meet many mediators have offices designed to conduct mediation with sufficient conference rooms. Otherwise, it may be held in one of the lawyer’s offices or at some other agreed-upon location, such as a court reporter’s office. The mediator is a lawyer or former judge who has completed a specific course of study in the mediation process in order to become certified by the court to conduct mediations. There are hundreds of names to choose from in most jurisdictions. In reality, most lawyers normally operate off a “short list” of a dozen or so mediators with them. They are confident will conduct meaningful and productive mediations. Additionally, the lawyers strive to find a mediator they believe has the personality, background and skills to be effective for that particular case. In those rare instances where the parties are unable to agree, the court may order the mediation and designate the mediator.

The role of the mediator is to facilitate a meaningful compromise of each party’s position so that they can agree to settle the case. In order to accomplish that goal, each side provides the mediator with a written summary of their view of the case. At the beginning of the mediation conference, each party orally presented their arguments during the joint open session. The parties and their lawyers retire into separate conference rooms for the duration of the process. The mediator meets separately with each and conveys the positions being taken by the opposing party. Based upon the evidence discussed, the mediator suggests to the injured party why they need to consider reducing what they will accept to settle the case. Likewise, the mediator suggests to the defendant arguments why they need to consider increasing what they are willing to pay.

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Litigation Workflow

litigation workflow

Ten Things You Should Know About Document Discovery

In the U.S., document discovery in litigation has its own practices. Efficient document discovery can save large sums of litigation costs. Even in other countries, efficient document “discovery” can substantially enhance the chances of success in lawsuits. If you cannot locate critical documents that support your arguments, you could lose genuine claims in a court of law.

1. Document discovery means retrieving and producing documents that substantiate your claims, whether in the context of a lawsuit or a compliance audit. In today’s context, over 90 per cent of discoveries are electronic discoveries, i.e. discovering documents stored in an electronic form.

2. If electronic document management systems are good, document discovery is far easier than the physical discovery of paper documents from the mass of papers, files and filing cabinets. However, proving the authenticity of electronic documents can face some special problems.

3. Just opening an electronic document can change the metadata associated with the document, with the user not even being aware that it has changed. Metadata can sometimes prove critical for supporting the claim being made. The substantial content of electronic documents is also quite easy to change, making them suspect as authentic evidence.

4. The metadata attached to electronic documents, such as the automatically recorded “date of modification” and the person who created it can help prove specific points. Electronic documents are often required in their “native file” state to access such metadata.

5. Electronic repositories are often cleared automatically of old files to make space for new documents. Volumes of electronic documents such as e-mails and saved chat messages can mount to huge quantities if such periodic clearing is not done. This can sometimes mean losing valuable documents that substantiate legal claims.

6. Regulations like Sarbanes Oxley Act have made it a serious offence to destroy electronic records once litigation has commenced, or even if one is suspected. A “legal hold” is placed on all documents, including e-mails, once such an event occurs. The inability to produce all relevant documents can also lead to adverse judgments against the defaulter.

7. Producing electronic documents in their native format is not always required. Instead, they can be printed out or converted into such formats as a PDF document before being produced. It is acceptability of the document to the litigants that is important. For example, converting a computational spreadsheet into PDF can lose all the computational details, and might affect the document’s value as evidence.

8. Electronic documents can exist in several versions and copies, possibly stored in different places such as local workstation computers, network servers, laptops and even home computers of employees. The document management system has to exercise tight control in such a situation to ensure that the legal admissibility of the documents is not affected.

9. Document management systems restrict access to documents, make unauthorized changes difficult, maintain audit trails of all actions done on each document and exercise strict version control that authenticity of electronic documents is preserved.

10. Where documents exist only in backup or archive media that are not on-line, their discovery can prove expensive and burdensome. In such cases, the parties might agree on sharing the costs of discovery if the documents are classified as “inaccessible” by law.

Electronic discovery, while theoretically easier, faces several problems that affect their acceptability and special training might be required to educate staff about relevant issues. There are resources like EDRM that can help with electronic discovery issues.

the business of law in a litigation and business representation firm?

For a busy well established litigation and business law representation firm that is in change, can anyone enlighten me as to a marco perspective of the model for the business functions of practicing law? specifically for the case where a partner has retired, another partner is assuming the lead of the firm, and while busy, the firm, in nearly every aspect, is sorely in need of modernization with regard to the operating procedures. The best way to move the work from the front door…to the file closing: the workflow through the firm, the books, the recording, the management…. basically the system flow structure. what standard operating procedures should be implemented? Looking to transition technologies for practice management, time and billing/ firm accounting. The software suite aspects I understand, What is the biz model / office operating processes; day2day,records;to manage the office and the business of this business. Can anyone show a crash course in firm accounting and SOP’s?

You have a complex problem. To answer I am going to assume that you are the new managing partner.
Don’t expect to be an expert in all things.
Find through executive search firm or referral an office manager who can move the firm out of the 19th century. There are a series of steps to implement the process.
The most important advice that I can give you is that your paper system must work before you convert to a computer based system (work flow). Map it out and decide if that is the best method. If it doesn’t work now it will be a bigger mess when you convert.
There are numerous software packages available for a legal firms. Let your new office manager do the research and make the recommendation to you. After all they have to live with it day to day. The software companies will give the all the information you will ever want to know on the work or system flow. After all that is the basis of their software package and expertise.
Do you really want to be an accountant? Talk to your CPA firm and get their recommendation. Remember, the current CPA firm may still be in the 19th century too.

This is not something to decide on price it is your lively hood on the line. Do it right the first time. If you try to do it all you will no longer be producing income and you will become overhead.

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