Litigator’s Playbook: Spring Cleaning

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

Wikipedia tells us that the term “Spring Cleaning” may date back to the Iranian Norouz – the Iranian New Year, which takes place on the first day of spring. The Iranian practice of Khouneh Tekouni (literally means “shaking the house”) or “complete cleaning of the house” is commonly performed before Norouz.

When I hear the phrase “Spring Cleaning” I am reminded that it is time to put my winter clothes away and take spring clothes out, to look through drawers and cabinets to decide what needs to be kept and what needs to be thrown out and to start scrubbing places always hard to get. For some reason, this time of year and this event (spring cleaning) also motivates me to take on projects around the house – painting a room, staining outside steps (this year’s project), or, admittedly, less often, doing something with the load of “stuff” we have amassed in the basement. With regard to my business, I often think of this as a time to get my affairs (billing, papers, even phone calls) in order.

What about litigation? What can this Litigator’s Playbook offer you regarding “spring cleaning”? Cleaning and organizing are the two areas associated with spring cleaning; both apply to litigation.

Cleaning: There is often a tension between the desire for the judge or jury to hear or see everything admissible so they know why your client should win versus streamlining your case so the decision-maker(s) stay interested. From my perspective, there are no set rules about how much to present; however, I generally advise following two general principles, regardless of whether it is a criminal or civil trial:

If you had to structure your case around three major points what would they be? Not causes of action, but facts/themes. Summarize those points for yourself and then think about who/what you need to convey those points to someone else.

Think back to when you first heard about the case – what were the initial questions you wanted answered to help you understand what you needed to do with the case? If you cannot remember, then talk through the case with someone other than an attorney, associate or someone in your firm. Keep track of their questions and initial impressions.

Organizing: How you go about organizing your case for trial consists of what you do on a “macro” level and “micro” level:

Macro – While some attorneys can make “seeming” disorganized and chaotic work for them, most cannot. Because you want the decision-maker(s) to have confidence in what you are presenting, you must appear organized. Different attorneys have different methods of organizing their cases in preparation for trial. Some have a “trial notebook,” others create different files for different aspects of the case, while others have subordinates who keep them on track. Use whatever helps you maneuver through the courtroom with ease and an air of confidence.

Micro – Essential to a good trial and a good win is the organization of information. In previous Litigation Playbook columns, we have discussed how to design and present effective opening statements, use visuals and examine witnesses. There are better and worse ways to organize information – better ways to keep your decision-makers engaged and better ways to help your decision-maker(s) understand and come to verdict in favor of your client.

Future columns will continue to inform you of different communication skills you can use in court. One general issue that pervades all aspects of your trial is “sequencing” – the sequencing of points in your opening statement, the sequencing of witnesses throughout the trial as well as within any one day. Remember the rules of primacy and recency. Remember the usage of words that paint pictures, different sentence structures, analogies and rhetorical questions.

Other ideas or questions about spring cleaning litigation? Let me know!