Working Backwards From a Closing

This is a very entertaining and interesting piece from AON’s Mark Hermann, leaving aside any qualms about the seriousness of the website that published it. In it, Hermann makes the case for litigation counsel to provide overviews to their clients structured around the question of how they plan to win the case, rather than just by providing an overview of the case and its history. I will take his thought one step further, and argue that every single thing a litigator does on a case should be done with that in mind; that, in essence, every decision in a case and every step taken should be subject to a litmus test of whether it gets the client one step closer to winning the case. In many ways, that was the thesis of this article of mine, on patent infringement litigation, in which I discussed the difficulties of cost faced by smaller companies forced to litigate such cases. Having litigated a number of intellectual property cases – including trying a patent case – for smaller and emerging companies who were facing off against deeper pocketed rivals, I knew that the key to cost containment was to focus strategy, discovery, expert issues, and motion practice only on the pieces needed to win at trial or summary judgment, and to avoid the siren song of pursuing interesting but expensive and likely not important side issues in the case. As I explained in the article, costs could be controlled by focusing only on the themes and issues relevant to winning, rather than pursuing every possible thing that could, but probably would not, affect the outcome of the case.

This approach – which Hermann likens to focusing on the closing of a trial – can and should influence everything a trial lawyer does, from the reporting to the client that is the focus of Hermann’s piece to discovery strategy to motion practice, all the way up to trial. If it doesn’t matter to winning, or to preventing the other side from winning (to the extent the two concepts aren’t entirely co-extensive), than it is has no purpose in a case. Deposition practice, for instance, is a perfect example. Sure, there are instances in which a deposition is taken just to get background information and understand what actually occurred. For the most part, though, depositions involve witnesses who have a known role in the events at issue and in those instances, I almost never ask a question that doesn’t already fit my plan for one of three things: what I am going to prove to obtain summary judgment, what I am going to use to prevent the other side from obtaining summary judgment, or what I am going to prove at trial. When it comes to a deposition, if a lawyer cannot explain how a particular question or answer fits into one of those three rubrics, 90% of the time the question and its answer has no purpose in the case, and serves only to extend the length of depositions and the cost of discovery to clients.

You can carry Hermann’s concern across the entire length of a case, from beginning to end. And, as Hermann suggests and my article on patent infringement litigation focused on, you can use that concern to reduce legal costs and get better results, all at the same time.