Make a Plan Before You Build Your House

Pretend for a moment you decided to build your own house. What is the first thing you would do? You would likely start by drawing the exterior of the house. Then, you might sketch out the details of each room. Eventually, you would be able to make a shopping list for the hardware store. With your detailed list, you would know exactly how many door handles and light switches to buy.

Now imagine you skipped the planning process. You went straight to the hardware store with no list. You just filled your basket with things that go in a house; light switches, hinges, door knobs, lights, whatever. Then you went to your empty lot and started building your masterpiece. You would soon find you had too much of some things and not enough of others. Imagine all the extra trips to the hardware store and all the wasted time. You would also feel compelled to use all the extra junk you bought- after all, you paid for it, you might as well use it. Finally, imagine how your new house would look. It would probably not be very pretty. By taking a little time on the front end, you could have saved time and money, and built a better house.

We (lawyers) make this same mistake all the time. We start discovery with no plan. (An idea in your head is not a plan). The result is we end up with unnecessary junk. Then at trial we feel compelled to use it all- after all we paid for it, we might as well use it. Worst of all, sometimes we find out when it’s too late we are missing something we need.

Although we cannot plan out an entire case, there are many things we can do before heading to hardware store (discovery):

  1. Write out your verdict form. Writing out a verdict form helps focus on who it is you want to blame, which could steer your discovery and deposition questions. (This is the equivalent of sketching out what you want your house to look like).
  2. Look at key jury charges and statutes. This helps in multiple ways. You will know what you have to prove. Also, your experts can use key words in their reports and you can use the same key words in depositions.
  3. Brainstorm different liability theories. Otherwise, you may never uncover key facts to prove up your best case.
  4. Consult with experts.
  5. Decide what words you will use to consistently describe an action, person, or object throughout the case and trial. Words matter.
  6. Read similar cases.
  7. Conduct formal or informal focus groups (talk to your friends).

As you step through your planning session, make notes about potential exhibits, deposition questions, and discovery to send out. This is your plan. Update it as new information comes in.

We have all heard the analogy “it’s it better to use a rifle than a shotgun.” Not having a strategic plan upfront leads to a shotgun approach in discovery and trial. A plan gives you the confidence in your case and helps you resist the urge to keep digging. Asking the right questions in discovery makes trial preparation easier. Most lawyers are short on time, but you won’t regret taking a little time to plan.

By Aaron Broussard – Louisiana Advocates, November 2017

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