The Trial Practice Tips Weblog

Read About the 7th Circuit's E-Discovery Pilot Program

From the Electronic Discovery Law weblog of K&L Gates:

Beginning October 1, [2009], Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin. The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.

The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”

The first phase of the Pilot Program will end on May 1. To learn, read the full post from Electronic Discovery Law, as well as the Statement of Purpose from the 7th Circuit (pdf).

Trial Tip: Authenticating Web Pages

From Law Technology News: "Authenticating Web Pages as Evidence," by M. Anderson Berry and David Kiernan--

Plaintiff sues your client, claiming that his injuries have significantly affected his lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges loss of consortium. On the eve of trial, you discover pictures and other details on a social networking website about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier. As you approach the witness with printouts of the web pages, you are stopped in your tracks: "Objection, lack of foundation."

This article contains for authenticating web pages and Federal Rule of Evidence 201, 901 and 902. It also has an interesting section about court cases involving the Internet Archive or "Wayback Machine."  

Related post: "Using Emails in Support of Summary Judgment or at Trial."

Using Requests for Admission to Simplify Your Case

In preparing your case for trial, don't overlook requests for admissions.

Requests for admissions are powerful tool for establishing proof on matters your opponent won't be able to (or doesn't plan to) to deny at trial.

In an auto case, a plaintiff might simplify the case with requests for admissions like the following:

• Admit that the collision occurred on Vencil Street.
• Admit that the speed limit on Vencil Street was 35 mph at the time of the collision.
• Admit that the defendant was traveling about 55 mph at the time of the collision.
• Admit that the eastbound defendant collided with the westbound plaintiff in the westbound lane of traffic.
• Admit that the plaintiff missed work for a period of time as a result of her injuries.
• Admit that the plaintiff missed work for 193 days as a result of the injuries she sustained in the collision.
• Admit that the plaintiff incurred reasonable and necessary medical bills in the amount of $52,000 from St. Joseph's Hospital as a result of the crash.
• Admit that the injury to the plaintiff's right hip, sustained in this collision, is permanent.

Source: "Jump-start your case with requests for admissions," by J. Franklin Long, Trial, 4/02. (The examples are quoted from a sidebar in the article; there are many more examples in the article.)

Related posts:

1. "Authenticating Exhibits Using Requests for Admissions: Two Methods"

2. "Responding to Request for Admissions Under the Federal Rules"

3. "Discovery Tip: Interrogatories About Requests for Admissions"

4. "Interrogatory Answers "Subject To" Objections: Send a Request for Admission"

Who's Reading Your Email? Whose Email Are You Reading?

If you work for a large organization, you might find this article a little creepy. "What your emails say about you: Our electronic trails are powerfully revealing – for those who can decode them."

Although the article has only a cursory relation to the topic of this weblog -- it mentions e-discovery --  it might be relevant to lawyers for other reasons. The article profiles a company called Cataphora that "tries to model what an 'effective' employee looks like based upon her electronic trail." For example, Cataphora can look for "who's using all-caps (typically a sign of high emotion) or who is communicating with people on a distant part of the org chart – a relationship that makes no organizational sense."

And there are some law-related applications:

Over the years, Cataphora has helped out in many cases where it's useful to know whether an employee is thriving within the company. This may indicate whether he will be a co-operative witness. Or take the example of a whistle-blower. While it's against the law to conduct a witch-hunt and fire the whistle-blower, it's very advantageous to know, before you get into court, who the whistle-blower may be (i.e., is it someone in a position to give a lot of information to the government?). When dealing with these kinds of issues, Cataphora started with the basic tradecraft assumption that a happy employee is unlikely to cause problems.

Want to know more? Here's a link to Cataphora's website.

Interrogatories Before Depositions

Plaintiffs' lawyer Ron Miller has an informative post explaining why he serves interrogatories at the time he files a complaint, noting in part--

The advantage in first obtaining answers to interrogatories is that the answers should help the attorney determine who should be deposed, what questions should be asked of those deponents and what documents should be obtained in the case. Having the interrogatory answers, in some cases, also may tend to shorten the length of time required for the deposition. A possible advantage in taking the opposing party's deposition before serving interrogatories is that the party's deponent will not have thought out the factual and legal position thoroughly with the attorney and be as prepared as he/she might be otherwise.

As Miller writes, there's a split of opinion on this issue among plaintiffs' lawyers. The full post, which contains much additional discussion, is titled "When to Serve Interrogatories?"

Related post from Trial Practice Tips: "Depositions Before Interrogatories?"

Depositions Before Interrogatories?

Can a well-crafted set of interrogatories ever hurt your case?

In many complex cases, interrogatories served early in the case can educate your opponents about your case strategies at a time when you'd rather keep them in the dark. Moreover, when you serve the interrogatories on your opponents, you are requiring them to get up to speed on their own case strategies, perhaps sooner than they would have done so otherwise.

For these reasons, some lawyers like to depose the key witnesses before serving any but the most basic interrogatories. The idea is that you will deprive these witnesses (and your opposing lawyers) from some of the early-stage strategizing that often allows them to rehearse their answers in advance. With an element of surprise, you're more likely to get spontaneous and unrehearsed admissions.

Try it sometime and see if it works for you: depositions before interrogatories.

Source: Kenneth R. Berman, "Q: Is This Any Way to Write an Interrogatory? A: You Bet It Is," from Litigation magazine, reprinted in The Litigation Manual: Pretrial (ABA).

Use Your Opponent's Interrogatory Answers at Trial

Don't think of interrogatory answers as something to be forgotten after the initial stages of discovery are complete. Interrogatory answers often contain admissions that you can introduce into evidence at trial.

Part of every trial notebook is an "interrogatory" section (or more generally, a place for "admissions"). As you prepare for trial, go through your opponent's interrogatory answers and copy anything you might want to use later. These go into your trial notebook.

In most jurisdictions, interrogatory answers can be introduced by reading them to the jury.  A party's interrogatory's answers can also be used to impeach the party's in-court testimony. As an admission, the answers will generally be an exception to the hearsay rule. But the answer will not be completely "binding" on the party; the jury will still be given a chance to weigh the in-court testimony against the interrogatory answer.

Partial source: Model Interrogatories §121 , by Kevin R. Culhane.

Related posts:

1. "A Method of Organizing a Trial Notebook"

2."Trial Notebooks: An Alternative Method"

Practice Tip: Don't Overdo the Objections to Your Opponent's Discovery

When you file objections to your opponent's discovery, don't get carried away. Never object to every interrogatory or production request.

It's an obvious tip, but there are lawyers who do object to every interrogatory or production request. These objection-crazy lawyers are offering their opponents a gift: A chance to get in front of the judge and say, "Not only did he make frivolous objections to Interrogatories 1, 2 and 3, but he objected to every one of my discovery requests."

Sound unlikely? I've been able to say something along these lines quite a few times in my career, and it never turns out badly for me.

If you're going to make an objection, don't do it unless you have good reason to believe you are in the right. Otherwise, you're just offering your opponent a chance to paint you as an obstructionist--and you'll probably have to answer the discovery anyway.

A "Bounty" of Tech-Related Practice Tips

The March, 2009, issue of the ABA's Law Practice Magazine, which is online and free to all, is celebrating "the spirit of ABA TECHSHOW by giving you a bounty of legal technology tips."

Some of the articles this month include:

• 10 Ways to Stretch Your Research Dollars: How to Get the Facts on a Dime

• Tips and Tools for Easy Collaboration: Six Ways to Work Better with Others Online

• Steps Along the Paperless Path: Keys to a Successful Scanning Implementation

• E-Discovery Tips for Everyday Cases

There are other articles, too, all worth a look. Link from Jim Calloway's Law Practice Tips and Celia C. Elwell, RP.

Production from Non-Parties and Records Depositions: Some Generalities

Here are some broad principles that will apply to many situations involving production from non-parties:

• A non-party person or entity will be compelled to produce documents and appear for a deposition with a subpoena, not a notice;
• For deposition subpoenas in Illinois, see generally SCR 204(a). The procedure can be summarized as follows--

--Obtain a subpoena from the court clerk;
--Prepare the subpoena;
--Prepare a deposition notice;
--Serve the subpoena and the notice on the non-party deponent;
--Serve the notice and a copy of the subpoena on the parties to the case.

• If the entity that has the records objects to producing them, the entity may file some variation of a motion to quash the subpoena; parties to the case may also have objections to the subpoena that will need to be litigated;
• Once you receive the records you are seeking, you might decide you don't need a deposition at all. In Illinois, this possibility is provided for in SCR 204(a)(4). However, you will often want to depose a records custodian to confirm that you've received everything you asked for and to ask questions establishing a foundation for the admission of the records at trial; 
• At the deposition, proceed as follows--

--Name
--Employer
--Job title
--Job duties

--Familiarity with entity's procedures for preparing and keeping records

--Subpoena; mark it and have the witness identify it
--Ask the witness to identify the documents produced pursuant to
     the subpoena; mark the exhibits
--Determine whether the witness brought all the documents requested by the subpoena

--For particular documents, have the witness lay whatever foundation you think you'll need to get the documents admitted at trial, e.g., by establishing the following points--

--Who prepared the document?
--Was the document prepared pursuant to the creator's job duties?
--Were the documents prepared at or near the time of the matters recorded therein?
--Did the person who prepared the documents have personal knowledge of the facts reported therein?
--Were the documents prepared in the regular course of the entity's business?
--Were the documents retained pursuant to the entity's regular business procedures and in the regular course of the entity's business?

• Before or after questioning, seek to obtain a stipulation from opposing counsel as to the admissibility of the documents at trial; you can decide whether this makes the deposition itself unnecessary.

For more about third-party production and deposition procedures in Illinois, see Illinois Pretrial Practice, Duncan-Brice, Flannery, Kelly and Owens (James Publishing). 

Related posts:

1. "Admissibility of Medical Records as Business Records in Illinois."
2. "Police Accident Reports and the Business Records Rule."
3. "Proving Up Medical Bills #1."
4. "Proving Up Medical Bills #2."
5. "Proving Up Medical Bills #3."