APRIL 2019 | FIRST FOCUS

Best pretrial hacks

Strategies and techniques to enhance the chances for successful resolution of lawsuits and disputes are many and evolving, and the ABA book, “From the Trenches III: Pretrial Strategies for Success,” builds on the earlier editions published in 2015 and 2017, respectively.

The latest volume is edited by experienced litigator Sawnie A. McEntire, director and shareholder at Parsons McEntire McCleary in Dallas.

He and other experts contribute 15 chapters addressing everything from pre-suit tasks and options to practice tips for enhancing case organization after the lawsuit is filed to effective advocacy to use of jury consultants to forum selection strategies to considerations for witness selection and final trial preparations.

YourABA caught up with McEntire to learn more about effective case management, early planning and preparation and the importance of taking a strategic and creative approach to issues.

One chapter in your book covers the timing of mediation, saying it can take place anywhere from pre-suit to during an appeal. Is earlier better for mediation, or are there times when you should wait to come to a resolution with the other party without a trial?

There are many instances when an early mediation, even pre-suit mediation, is advisable. However, there are other instances when an early mediation is clearly not recommended.

A primary justification for early mediation is to save attorneys’ fees and litigation costs. This is particularly so when liability exposure is clear, and further investigation or discovery is not likely to alter this assessment. In such cases, there is typically no need to pursue lengthy and potentially expensive litigation. This can apply to both large- and small-damage cases.

An early mediation may be particularly appealing to defendants in cases presenting likely liability and significant damages. Again, if discovery is not expected to change this evaluation, then common sense suggests an early mediation to save costs and expenses.

In some cases, an early mediation or pre-suit mediation can better preserve desired confidentiality or avoid adverse publicity. Some cases may present public relations challenges for one of the parties. For example, some defendants may wish to avoid a public forum that may generate newsworthy headlines or problematic discovery that injures reputations or business brands.

Yet another reason for an early mediation is if one of the parties is gravely ill, and there is a motivation to resolve the case in light of this illness. This may be particularly important for plaintiffs in catastrophic injury cases when the medical prognosis is poor and longevity in doubt.

On the other hand, early mediations are not recommended if fact investigations and expert discovery are needed to make adequately informed settlement decisions. This is true for both plaintiffs and defendants.

Investigation and discovery may be needed to fairly evaluate the benefits of achieving a settlement or proceeding to trial. A party may not want to pursue early mediation because there is an expectation the facts and equities of the case will improve through formal discovery. A party may wish to take depositions to better assess strengths and weaknesses of both sides of the case.

In more technical cases, expert discovery may be needed to better inform settlement evaluations. The parties (both plaintiff and defendant) may be reluctant to engage in settlement discussions until pertinent technical assessments have been undertaken and competing expert depositions completed.

You wrote the chapter on pretrial strategies, including using focus groups. What kind of case would benefit from a focus group, and how does it work?

Focus groups and jury studies are often used when the financial stakes are high, or when there is uncertainty concerning the equities in a case. Another instance involves potentially inflammatory or prejudicial evidence. A jury study is uniquely helpful to test the impact of such evidence and to determine whether such evidence can be defused or how such evidence should be handled at trial. By involving participants with similar demographic characteristics, a jury study can test reactions as a basis for predicting how an actual jury might react to these and other variables involved in a trial.

Jury studies and focus groups provide excellent opportunities to test the likability and credibility of both witnesses and lawyers. The trial lawyer may have concerns about a witness, and these concerns can be validated and tested by a focus group. A short video clip of a witness can be presented, and reactions tested. A mock trial can be conducted where live testimony of particular witnesses is presented and then tested.

Jury studies provide a useful forum to assess both case strengths and weaknesses. One option is to “phase in” and “phase out” trial themes and supporting evidence to test the effect of such themes. The reactions to such evidence can be objectively measured.

A jury study or focus group is typically conducted after the case is appropriately developed and the key issues clearly defined. Conducting studies prematurely may generate unreliable information.

Your book advises planning for voir dire as much as planning for the opening statement. Why is that?

There is only one opportunity to make a good first impression. For trial lawyers, voir dire is this opportunity.

Voir dire is one of three occasions when a trial lawyer can speak directly to prospective jurors. It is therefore important for the trial lawyer to present himself or herself in the best possible light and begin developing jury rapport. Voir dire also is used to present the client and the case facts in the best possible light. The last thing a lawyer wants to do is create a bad impression or confuse the jury panel at the beginning of the case. Careful selection of topics to discuss with the jury panel is important here. That is why preparation is required.

An effective voir dire requires a description of the basic facts of the case. This is needed to provide context for specific questions to the jury panel. A cogent, simple and credible explanation of the facts also begins the process of winning the jury. The jury panel begins to learn your perspective of the case. Solid preparation is always needed for an effective, credible presentation of the facts.

Voir dire presents an invaluable opportunity to question potential jurors about particularly prejudicial or harmful evidence. This is done to defuse the sting of such evidence if admitted at trial.

Voir dire questions should be carefully crafted to identify subtle biases or prejudices of potential jurors. No lawyer wants a juror in the jury box who is likely to vote against the client’s case from the outset. For these and other reasons, an effective voir dire requires both planning and preparation.

What are some of the strategic considerations to make before filing a motion for summary judgment?

Summary judgment motions should not be filed unless there is a colorable chance of success. Otherwise, the trial court may be left with an unfavorable impression and perceive that the moving party wasted the court’s time and resources.

Summary judgment motions also can be used to ferret out the strengths or weaknesses of an opposing party’s case. Flushing out evidence from an opposing party is an important strategic consideration.

Some jurisdictions allow for no-evidence summary judgment motions at or near the conclusion of discovery. These types of motions force the plaintiff to establish specific elements of a cause of action or to force a defendant to establish the elements of an affirmative defense.

What are some considerations to make before filing a motion to compel discovery?

Discovery hearings are frequently the first opportunity for the trial court to meet the lawyers and learn about a case. Therefore, such hearings present opportunities to make good first impressions.

Filing motions to compel that involve trivial discovery disputes are not the best way to start any case. Most courts do not want to be bothered with unnecessary motion practice. Therefore, motions to compel typically should not be filed unless the discovery issue is important. Trial lawyers should not waste the trial court’s time over inconsequential matters.

Similarly, filing discovery motions before making any meaningful effort to resolve a discovery dispute is ill-advised. Most trial judges expect lawyers to attempt to resolve their disputes outside of court. Therefore, any motion should make clear the efforts to resolve the controversy without involving the court.

A motion to compel can be used as a tool to “box in” an opposing party. It forces the opposing party to either produce or not produce responsive discovery. If responsive discovery is not forthcoming, the opposing party may be precluded from using such evidence (and related evidence) at trial.

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