PREPARING FOR TRIAL
Case Theory and Themes Preparing to Present Defense Narrow Legal and Factual Issues Trial Logistics
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.
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
Mock Trials Focus Groups Types of Themes: Finding the truth Responsibility Lack of objective evidence
NTSB Jury
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
Discovery 500,000+ pages of documents in recent case Depositions 865 exhibits Trial 250
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 emails were deleted. Magistrate judge: No malice or prejudice to Hart = no sanctions.
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
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.
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 1620866 (SDNY July 20, 2004) ( Zubulake V )
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
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
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.
Takeoff Site 4 Topped Trees Main Wreckage View Looking North
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.
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.
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.
SUBPOENA non-party witnesses. They will not show up unless ordered to. FAA ATC First responders Eye-witnesses Treating physicians Accountants
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.
Stipulation Of Facts. MOTIONS IN LIMINE: Admission of NTSB factual reports. Exclusion of certain evidence usually related to damages, punitives. Trial Statement.
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
Everyone has a plan until they are punched in the face. Mike Tyson There will still be surprises. Be prepared. Be flexible.