In handling complex litigation, our firm is guided by two principles, both of which reduce expense without sacrificing chances for success. First, less is best. Excess discovery is not just nonproductive, it often is counterproductive. Excess discovery removes the element of surprise at trial, forces the opposition lawyers and witnesses to get prepared earlier than they otherwise would, and often takes the eyes of the lawyers who engage in it off the ball. The best lawyers are best able to handle (and create) surprise at trial. We believe in retaining our natural advantage.

Minimal discovery, however, doesn't mean being ill-prepared. It means we prepare by means other than formal discovery, such as thoroughly interviewing our client's employees and the other side's ex-employees, organizing all documents and information chronologically to understand the complete picture, and conducting jury simulations.

Second, we take whatever discovery we need before the other side does. We like to take the first depositions and we like to depose the top executives first – before they can get their stories straight. We don't believe extensive document discovery is necessary to do this.

THE BOTTOM LINE

• We are stand-up jury trial lawyers, not discovery litigators. Everything we do is designed to prepare us to persuade a jury.

• Fifty percent of our time as a firm is spent in handling contingent fee matters for plaintiffs. Since preparation in these cases is on our own nickel, we know how to economize and insist that everything we do potentially be outcome-determinative. We acquire good habits from this contingent fee work.

• We encourage clients to compensate us on a result-achieved basis. We want the same incentive to win our clients have. But even when we are paid by the hour, we pride ourselves in a "mean and lean" approach to litigation.

• In our experience, the bottom line amount of our monthly statements will be lower than those of large firms that compensate partners on a pyramid basis and that leverage off the billings of large numbers of associates. We do not have enough lawyers or enough excess capacity to over-work a case, and even if we did and a client was willing to pay us to do so, it would go against our grain. We often staff cases with just a fraction of the number of lawyers our adversaries use to overwork the case.

• Because we only do litigation, we have few regular clients. The only way we get business is by the result we achieved in the last case. Our most prized asset is our list of clients who have seen us in court. We cannot afford to lose. And we cannot afford to win inefficiently.

TEAMWORK ON THE BIG CASE
(WE HANDLE SMALL ONES, TOO)

At the beginning of a complex case, we assemble our trial team, rarely consisting of more than one or two partners, an associate and a legal assistant.

• We candidly discuss staffing with the client up front and try to assign to the case lawyers with whom the client feels comfortable.

• We believe in one-lawyer-one-task. We rarely assign two lawyers to cover a litigation event.

The partner in charge manages case preparation by using a Task Assignment memo, revised weekly, and a regular weekly team meeting or conference call.

• Task Assignment Memo. Each task is assigned to a named team member with the due date. These memos are numbered sequentially and revised after each weekly meeting.

• The Weekly Meeting. Interoffice conferences among trial team members are necessary for effective communication and to avoid duplication of effort. But they are wasteful if the same message must be repeated. By focusing our interoffice communications into a regularly scheduled meeting or conference call, we avoid unnecessary jawboning among team members at other times. This also allows the client's in-house counsel, co-counsel, etc., to attend and keep up to date.

• Call Reports. If a member of the team has a substantive discussion with the client, co-counsel or opposing counsel, he routes a call report by e-mail to other team members.

DISCOVERY AND DISCOVERY DISPUTES

Dealing with Opposing Counsel

• We try to conduct all discovery by agreement. It is expensive to do otherwise.

• We rarely take discovery disputes to court. Judges hate them and usually give both sides less than they could get by agreement. Our rule is to take a discovery dispute to court only when the issue is outcome-determinative (few are), and only when we have confidence that we can win.

• At the start of a case, we send a memo to opposing counsel seeking agreement to a number of protocols that we have found to facilitate cooperation and reduce costs.

Document Production

• Upon receipt of the other side's document request, an experienced attorney, in consultation with the client, determines what should be objected to. We have found that it is better to produce too much than too little. It is very expensive to review masses of documents to remove what is nonresponsive or irrelevant. Sooner or later, we'll probably have to produce them anyway. We even encourage our clients to allow open files searches if we can get a stipulation preserving privileges or find a way to identify files that are likely to contain privileged documents.

• We do not simply like to rely on our client to locate and furnish to us responsive documents. Our legal assistants are experts at this, and there is too much danger of an inadvertent omission unless we are involved from the beginning. For example, we believe in numbering the originals of all documents produced for inspection before they are inspected, in logging all files searched, and in interviewing file custodians while the searches are being made.

• Before numbered originals are produced for inspection, a lawyer reviews them to remove those that are privileged. All documents withheld on the ground of privilege are logged at the time they are withheld.

Document Organization

• We are not great believers in computerizing all documents. This is expensive and, in most cases, unnecessary. Even the most complex case boils down to less than several hundred hot documents. As we initially review documents – ours and theirs -lawyers select those that are to be included in our hot document chronology. These are the documents that tell the story, which we use to prepare witnesses, and to depose witnesses. They are the ones that likely will become trial exhibits.

• From the document chronology, we prepare a written chronology of events. It is not a document digest, but rather an annotated narrative of what happened.

Depositions

• We don't take many, and those that we take are short. We don't need to look under every stone. We just need to know where the boulders are. Excessive questioning of witnesses, particularly experts, serves only to educate them.

• We normally videotape depositions of fact witnesses. This minimizes excessive talking by opposing counsel and allows us to show the other side's key witnesses during jury simulations.

• We believe there is no such thing as a bad witness -only one who has been ill-prepared. We give witnesses who are our clients "Your Deposition," a memo that incorporates our cumulative experience in trying lawsuits. Then we prepare our witnesses for the twenty tough questions – we don't sit them in a room alone with the thousands of documents they may have been copied over the years and ask them to review them. The documents they may have problems with are usually those they have authored.

Witness Preparation

• Witnesses learn through doing. Therefore, we cross-examine our own witnesses on video as part of their preparation. We play back and critique their performance.

• Defending lawyers are not supposed to talk during depositions. Courts are sanctioning those that do. If the witness is well prepared, there is nothing for the defending lawyers to do but listen proudly. By involving the most experienced lawyers in witness preparation, we often are able to trust deposition defense to lawyers with lower billing rates.

• Some lawyers believe that what a witness doesn't know can't hurt him. They encourage their witnesses not to remember, not to know. This is dangerous. A witness who doesn't know or recall at his deposition is often useless at trial. We encourage our fact witnesses to learn, remember, and be responsive, even at their depositions -to be able to handle even the most off-the-wall hypothetical questions. We encourage our experts to type out their opinions to hand to the other side.

• Most lawyers do not question their own witnesses at their depositions. They are afraid to commit to what they want to prove at trial, often because they themselves haven't taken the time to think their case through. We believe in asking many of our own witnesses questions at their depositions. This gives us some favorable testimony to show or play to the jury during the other side's case. It also removes the need to bring all of our witnesses to trial. Usually opposing counsel is ill-prepared to engage in a trial-type cross examination after we question our own witnesses on direct at the end of the deposition – frequently, they are in a hurry to catch planes home.

BUDGETING AND CALLING THE ODDS

• Upon request, we will prepare litigation budgets for our clients, but we prefer to work on a fixed-fee basis that places the risk of inefficiency on us and allows our clients to accurately budget for a case.

• Clients are entitled to know what we see as the issues and how we call the odds on each. Though we are unable to opine much for auditors, we are not reluctant to share our thoughts in writing with our clients

JURY SIMULATIONS

• We are great believers in jury simulations or mock trials, and we conduct them early and frequently in most cases. They help us predict the outcome, hone our arguments, and conduct discovery with an eye to telling a simple story to a jury. They let our clients see how their lawyers will look and sound during the real thing. When the result is favorable, we frequently disclose it to the other side to encourage settlement.

• A mock trial with 36 jurors costs around $35,000 and can be much more expensive depending on the circumstances. The cost is well worth the information and strategic guidance we gain.