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Litigation Advocacy Tips and Strategies

David Holmes Bouchard and Jay Malone

Litigation Advocacy Tips and Strategies
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Litigating a case can be daunting. Mastering the basic elements of litigation—drafting and answering a complaint, preparing and responding to written discovery, taking depositions, writing motions—is a formidable challenge. But building a successful law practice requires much more, including learning how to manage a case skillfully and exercise keen judgment. We want to share with you some tools to develop the “more”—well-established practices to organize and analyze a case, and in turn, to develop a coherent, thoughtful case plan. First, we will discuss developing a case map, which is essential to forming and deploying a plan for your case. Then we will provide some practical tips on conducting yourself during litigation as you develop and implement your case plan.

Mapping Your Case

Like taking a journey to a faraway land, litigating a case from start to finish is sure to be marked by triumphs, setbacks, risks, rewards, judgment calls, hard questions with no obvious correct answers, epiphanies, characters of all stripes, and much, much more. When facing so many challenges and distractions during litigation, you may find it hard to stay focused on what matters and where you are headed.

Case maps are invaluable for ordering facts and law, identifying what is important, and plotting out a case strategy. What follows is a discussion of steps—some obvious and some perhaps less so—to develop a case map and the elements of an effective case map.

A Starting Point: What Are the Facts and Law at Issue?

Attorney-client meetings are an essential first step in any representation. These meetings should not only help you establish a strong attorney-client relationship, but also allow you to learn, for the first time, the facts at issue from your client’s perspective and what your client hopes to accomplish in the litigation.

After gaining a preliminary understanding of the factual issues in dispute, consider and identify the critical legal issues in the case (e.g., Did the parties contract, and if so, was there a breach?). Doing so will clarify which laws govern. You should then consult the pattern jury instructions for the governing laws to determine the elements of the applicable laws. Understanding the elements at issue will help you see what facts will be most relevant in your case.

Given the Facts and the Law, What’s the Plan?

With a basic understanding of the facts in dispute and the governing law, you can begin preparing a case map. As a rule, an effective case map should answer a fundamental question: What does my client need to prove (or disprove), and how will my client prove it (or disprove it)? A case map should have at least a few basic elements:

Desired Destination

A case map should first identify the preferred outcome. The client’s initial expressed hope may not be feasible, and you may need to manage the client’s expectations based on the law and facts.

Stops along the Way

A fulsome case map should reveal in detail how the client will prove their case or how the client will show the other side has not proved their case—that is, it should identify the stops on the way to the preferred destination.

A case map should highlight:

  • key witnesses, their critical testimony, and grounds for admissibility of any potentially objectionable testimony;
  • the order in which witnesses will be called and the logic for that order;
  • key documentary evidence and the grounds for admissibility of any objectionable evidence; and
  • the witnesses through which the evidence will be entered.

A case map should also enumerate the key legal elements to reiterate the reason for the outlined strategy and underscore key factual issues that must be developed and emphasized in the trial presentation.

Possible Alternate Destinations

To identify only a desired destination without identifying possible alternate destinations (and the relative probabilities of those alternate destinations based on various factors) is to do the client a disservice. The lawyer’s task is to figure out how to chart a course to the desired destination while mitigating the risk of ending up in one of the less desirable alternate destinations. Identifying the full range of potential destinations, including various possible pre-trial settlement options, is essential for preparing the case map and managing the client’s expectations.

A case map should not be a fixed document created at the outset of a case and then forgotten. Instead, you should consult it regularly and diligently update it as the case progresses, new facts emerge, and circumstances change.

While developing a case map will not guarantee a result in any case, it will help keep you organized and focused on what matters through the inevitable ups and downs of litigation. And that is more than half the battle.

Practice Pointers as You Implement Your Case Map

After developing a case map, you would be well-advised to implement the following practical tips throughout the litigation.

Keep the Proper Perspective

When working with seasoned attorneys, you will be expected to be fluent in the facts of the matters you are assigned, manage and meet deadlines, and ensure cases progress appropriately. As you try to juggle these various responsibilities, it is easy to forget about the “big picture,” which is why developing a case map is so important. Your case map should make sure you stay on track.

Think about your case as a puzzle. To complete a puzzle, you lay out all the pieces before you and begin by building the frame. This makes it easier to solve. Similarly, at the outset of a case, identify the critical elements to each claim to frame the issues. Once you create a frame, you can start to look for the appropriate puzzle pieces to fill in the puzzle. You can refer to the pieces along the edge for guidance. Likewise, when managing a case, you can refer to the elements of claims to understand how a fact—your “puzzle piece”—fits into the case overall.

Keep an Organized Case File

While you may have an excellent memory and quickly recall obscure case facts, the ability to find evidentiary support for key facts (in a document, deposition transcript, or elsewhere) is invaluable. Maintaining an organized file will allow you to find information as needed and reduce stress. You are not alone in maintaining the file! Work with available legal staff (e.g., your assistant or a paralegal) to maintain files in an orderly fashion. You should leverage the knowledge and wisdom of more experienced legal staff as you transition into your career. They have tips and tricks that can make your transition smoother.

Avoid Unnecessary Conflict with Opposing Counsel

As an advocate, your task is to represent and advocate for your client’s interests. That involves advancing your theory of the case and engaging in discovery to uncover facts to support that theory, which is the purpose of developing a case map. Naturally, you and opposing counsel may have substantially different views of the case. That does not mean that disagreements should become personal disputes. Avoid petty disputes regarding discovery deadlines and other discovery issues. If opposing counsel needs a discovery extension, grant it. You never know when you may need an extension due to extenuating circumstances. Give grace to opposing counsel (and your client) if they fail to respond timely to communications. Being cooperative with opposing counsel can pay dividends later in the case or if your paths cross later. The legal community is small, and you do not want to develop a reputation as being uncooperative.

Developing a case map and organizing a case strategy from the start is a valuable skill and can be crucial to representing your client’s interests in a lawsuit. While developing and implementing your case map, make sure to adapt to challenges as they arise and avoid unnecessary conflict with opposing counsel. This organized way of thinking and methodical approach to litigation will help you develop the judgment you need to become a great litigator.