Litigation Strategies & Techniques

1. Best Money Spent. Money spent at the beginning of a case is the best money spent. Figuring out what is ultimately going to matter in a case requires investigation and an investment in the case. If you are going to try to figure out what ultimately is going to matter before the other side, you have to spend money. Some law firms, particularly when they represent defendants, are reluctant to spend significant amounts of money at the beginning, because they fear it may create a negative impression on the client, so they deliberately adopt a strategy of doing little until the plaintiff demonstrates an inclination to aggressively pursue the litigation. Of course, every case is unique. However, as a general proposition, I recommend a significant investment up front of time and financial resources.

2. Ultimate Issues. The attorney who figures out first what ultimately will matter in a case wins. This is, of course, an overstatement, but there is clearly an enormous advantage to identifying as early as possible in a case what the issues are that are ultimately going to matter. This rule is driven by the fact that, in my experience, a witness who knows that a truthful answer to a question will hurt that witnesses case simply will not give the truthful answer. Thus, the only way you obtain the truthful answer that will damage the other side’s case is if the witness does not know the answer is damaging. If you have figured this out, and the witness has not, you have a chance of getting the truthful, damaging answer.

3. Discovery. Many law firms subscribe to a regimented approach to discovery--first you get the documents, then you serve specific interrogatories and only then do you begin depositions. I prefer to serve notices to take the deposition as soon as possible. It is generally worth sacrificing other advantages in order to depose the other sides key witnesses before your witnesses are deposed. This “locks in” the other side’s story before they have likely figured out what will ultimately matter. Moreover, there is a benefit to your witnesses for them to prepare for their depositions with knowledge of what the other side has said. For example, if the other side has a specific reference to a key conversation, it will not be sufficient for your witness in that conversation to say “I don’t recall.” If your witness’s deposition is taken first, and “I don’t recall” response may be made before the significance of the conversation to the case is appreciated. The other side’s testimony may refresh your witness’s recollection. At a minimum, your witness can be prepared to testify that he or she doesn’t recall specifics, “but I know for sure that ‘x’ wasn’t said.”

4. Production of Documents. I usually serve the deposition notice with a request for production of documents annexed, requesting the witness to appear at deposition with the documents. Since depositions rarely go forward on the first day notice, I also simultaneously serve a separate, and identical request for production of documents. That way if the deposition is moved, I still get the documents in advance. Even if the deposition is not moved, I attempt to negotiate with the other side to provide the documents in advance of the deposition to “speed up the deposition.” Even if I only see the documents for the first time at the deposition, in many cases the volume will be small enough that the documents can be reviewed concurrently. If not, the completion of the deposition can usually be continued to a future date, at which time the documents will have been mastered.

5. Depositions. In depositions, defending is generally more important than taking. Many lawyers believe that defending depositions is an exercise in boredom. I believe that defending the deposition of an important witness, properly viewed, can be an occasion for shear terror for the witness’s lawyer. You cannot win a case by taking a deposition; at most you may miss an opportunity to score some heavy blows. However, you can lose a case when defending a deposition. Once a deposition starts, there is generally very little a lawyer can do to effect what happens. The lawyering must happen before the deposition. An important witness must have an understanding of the case as a whole, his or her role in the case, and must be prepared for all angles of attack. At least as important as the process, the witness needs help with the procedure. The witness must understand that, unless the deposition is being videotaped, all that matters is the written record.

6. Videotape. Always videotape the depositions of key adverse witnesses and use the videotape testimony in opening statement. Using videotaped testimony in opening statement is extraordinarily powerful. Jurors can see for themselves and form their conclusions about what the witness is like. Often, it is simply impossible for the opposing party to dislodge the impression of a witness that is created and effectively characterized in opening statement. As trial approaches, I identify which passages of testimony I will want to use at trial (this involves screening both substantively and for “credibility”) with the sole purpose of identifying passages where the witness, because of pauses, hesitations, conferences with counsel, etc. do not look creditable. I then have a vendor transfer this onto a disc which is accessible by bar code numbers. The bar codes are given to use on stickers which can be easily placed in an opening statement or cross examination outline.

7. Technology. When defending depositions, use real time reporting technology. There are programs available which permit attorneys to hook up with reporters at depositions so the deposition testimony scrolls out in real time on a laptop. The use of this technology entirely changes the dynamics of a deposition. With a laptop open before the witness and his lawyer, the witness will invariably read the question before answering it. It slows down the pace and causes the witness to see nuances and ambiguities in questions which would not register orally. If you are taking a deposition, never use this technology, because it may prompt the other side to use it and because, for the deposition taker, reading the questions eliminates any spontaneity.

8. Summary Judgment. When representing a defendant, move for summary judgment on the plaintiff’s best claim first. Here I am referring to claims which may be amenable to summary judgment. If the plaintiff’s best claim clearly involves disputed issues of material fact, don’t waste time. However, if it appears possible that the entire case may be ripe for summary judgment, move on the plaintiff’s best claim first. It is much harder to persuade a judge to grant that last summary judgment motion when it means the entire case will be over if it is granted. If that last motion addresses the plaintiff’s best claim, it will be harder to win. At the time the judge addresses the first motion, he may apply a lower standard because there are other claims that will remain. Move on the stronger claims first, and save the “gimmies” to last. Most firms, in my experience, are of the view that it is better to move on the easier claims first “to show the court that you are a winner.”

9. Mediation. In the past several years there has been a revolution in the use of mediators. Almost all business cases are either mediated or considered for mediation. I believe a good mediator can help the parties reach a resolution of the case that otherwise would not be possible. I conduct due diligence on the mediators and determine who is good for what type of case. Even if the mediation is not successful, the process is invaluable from a discovery perspective.

10. Mock Jury Trial. Never begin a jury trial without having done at least one mock jury presentation. I have found that, no matter how much time I have spent working on a case, I learn things from mock jurors that I, as a lawyer, never anticipate.

Provided as an educational service by John Raymond Dunham, III, Esq..

This publication is intended to serve you. If you would like certain topics covered, or have any questions or comments, you are invited to contact Mr. Dunham at: 941.951.1800, Ext. 250, Facsimile: 941.366.1603, E-Mail:, Web site: or write him at LUTZ, BOBO, TELFAIR, DUNHAM & GABEL, Two North Tamiami Trail, SARASOTA, FLORIDA 34236.

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered and report on issues and developments in the law. It is not intended as legal advice, and should not be relied upon without consulting an attorney.