Two characteristics that distinguish successful trial lawyers are preparation and strategy.
Strategy is more than simply doing what the rules require and the law allows. Strategy requires we explore our opponent’s fears, goals and pain points … and our own. Is it just about the money? Can we deflect, distract or, deplete the other side’s attention, energy or resources? How can they save face while we get what we want?
In a world where less than one-in-one-hundred cases are tried, discovery strategy, particularly e-discovery strategy, is more often vital than trial strategy. Yet, strategic use of e-discovery garners little attention, perhaps because the fundamentals demand so much focus, there’s little room for flourishes. As lawyers, we tend to cleave to one way of approaching e-discovery and distrust any way not our own. If you only know one way of doing things, how do act strategically?
Strategic discovery is the domain of those who’ve mastered the tools, techniques and nuances of efficient, effective discovery. That level of engagement, facility and flexibility is rare; but, you can be still be more strategic in e-discovery even if you’ve got a lot to learn.
Recently, I had to dash off a dozen e-discovery strategies for requesting and producing parties. I’m not completely happy with my lists, but I think I nailed a few of the essentials for each side.
“Will the person who left their cell phone at the security checkpoint please retrieve it?” People constantly leave their phones behind at security checkpoints, washrooms, checkout counters and charge stations. Too, the little buggers slip out of pockets and purses. More than three million phones are lost in the U.S. every year, and less than one-in-ten lost phones finds its way home. Saturday night, I found an iPhone on the floor at a big party in the Faubourg Marigny in New Orleans. I located the owner by asking everyone in sight if they’d lost a phone, and when I found her, the owner didn’t know she’d dropped it.
In my law practice, I use PowerPoint more frequently than Word. Word processing tools are for preparing documents for people to read and understand; I use presentation tools like PowerPoint when I want people to see and understand. PowerPoint isn’t a word processor; it’s a visual presentation tool. You can fill slides with text as you might a word-processed document, but when you do that, you’re killing the power of PowerPoint.
I haven’t posted in ages per the Mr. Ed Rule. For those too young to remember the talking horse of early-60s TV, the theme song says, “Mr. Ed will never speak unless he’s got something to say.” Sorry, Wilbur. I just didn’t have anything to say, and didn’t wish to waste your time. But, now I’ve got something worth writing about, and a gift to share.
