Case Theory and Themes. Preparing to Present Defense. Narrow Legal and Factual Issues

Transcription

1 PREPARING FOR TRIAL

2 Case Theory and Themes Preparing to Present Defense Narrow Legal and Factual Issues Trial Logistics

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4 Application of the law to the facts of the case. Basis for the legal reasons why you should win. Why does the law say I should win? What you want to prove happened. Develop early. Everything done furthers case theory.

5 Message of trial story: Provides - conceptual framework for the facts - emotional undercurrent for the case. Encourages the jury to react VISCERALLY Makes jurors WANT to argue for you Shows why your side should win Moral Underpinning: Right v. Wrong

6 Mock Trials Focus Groups Types of Themes: Finding the truth Responsibility Lack of objective evidence

7 NTSB Jury

8 Education: 3 college degrees (majors: computer science, professional development, geology) 7 high school and some college 1 did not finish high school 1 declined to state Work History: 5 unemployed 4 administrative assistants 1 fast food cashier 1 marketing manager 1 teacher

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10 Discovery 500,000+ pages of documents in recent case Depositions 865 exhibits Trial 250

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12 Key Facts: Sekisui bought a company ( ADI ) from Hart. Sekisui claimed breach of warranties related to purchase agreement. Sekisui did not issue a litigation hold letter until 15 months after filing its notice of claim. Hart s ADI s were deleted. Magistrate judge: No malice or prejudice to Hart = no sanctions.

13 Court s Holding: Rejected Magistrate recommendation. Hart entitled to: adverse inference; and monetary sanctions for cost of spoliation motion. If ESI is destroyed (gross negligence): DO NOT HAVE TO SHOW MALICE DO NOT HAVE TO SHOW PREJUDICE

14 The start of a process - not a single letter. A process to preserve ALL forms of relevant information when litigation is reasonably anticipated. Must be in writing. Summarize legal issues. Identify information to be preserved. Halt normal retention policy; Do NOT upgrade, delete files. Contact person for questions. Sent to IT staff and ALL persons likely to have protected information.

15 Not a one-and-done task. Imposes continuing obligation on lawyers (inhouse and outside) to: understand client s e-storage system; and remind key players of their preservation obligation. See Zubulake v. UBS Warburg, 2004 WL (SDNY July 20, 2004) ( Zubulake V )

16 AIRCRAFT BUILDERS COUNCIL, INC. LAW REPORT Fall 2007 ESI: Electronically Stored Information, The New Federal Rules Regarding Preserving And Producing ESI AIRCRAFT BUILDERS COUNCIL, INC. LAW REPORT Fall 2005 Spoliation and Suppression of Evidence: Recent Cases Are Making the Rules Clearer And Tougher

17 Client witnesses: Company accident investigator Product design engineer Persons addressing factual issues (problem documents; prior product issues) Experts: Accident reconstruction Metallurgist Biomechanics Structural engineer Meteorological Thermal physics Medical/Rehab Economist/damages

18 Prepare testimony and practice with witness. Select EXHIBITS for use during direct examination. Create DEMONSTRATIVES for each witness testimony (graphs, photo blow-up, video, animation): A JURY PRESENTATION IS IMPROVED BY DEMONSTRATIVES AND GRAPHICS.

19 Takeoff Site 4 Topped Trees Main Wreckage View Looking North

20 Consider and select DEPOSITION DESIGNATIONS: Exchange with plaintiff Consider and raise objections to plaintiff s designations Respond to plaintiff s objections and select counterdesignations Can be many depositions; Thousands of pages of testimony to review.

21 Certain witnesses will not be at the trial; only way to get testimony into trial record. Testimony will support POST-TRIAL MOTIONS and/or APPEAL.

22 Prepare final TRIAL EXHIBIT and WITNESS LIST: Exchange with plaintiff Consider and raise objections to plaintiff s lists Response to plaintiff s objections to defense list Consider and add additional exhibits/witnesses to counter plaintiff s lists. SEEING THE OTHER SIDE S LIST OF EXHIBITS HELPS TO CRYSTALLIZE WHAT THE OTHER SIDE S PRESENTATION WILL FOCUS ON.

23 SUBPOENA non-party witnesses. They will not show up unless ordered to. FAA ATC First responders Eye-witnesses Treating physicians Accountants

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25 Choice Of Law Motion MOTIONS for summary judgment/partial judgment: Government contractor defense GARA State law limitation on damages State law limitation on claims (e.g.: no post-sale negligence claims) Successful motions may severely limit the claims and damages plaintiff can present at trial.

26 Stipulation Of Facts. MOTIONS IN LIMINE: Admission of NTSB factual reports. Exclusion of certain evidence usually related to damages, punitives. Trial Statement.

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28 Travel arrangements flights/hotel for attendees. Courtroom set-up what will court allow? What technology will fit in the courtroom? Interview and select local trial assistance vendors: IT support copy company trial graphics team jury selection assistance War room set-up - identify supplies (computers, laptops, printers) needed

29 Everyone has a plan until they are punched in the face. Mike Tyson There will still be surprises. Be prepared. Be flexible.

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