By Mina Stone
A recent trial in a case in which Bullivant Houser Bailey PC represented the insurance company brought home the importance of document control and the ability to retrieve information on demand. The case involved a declaratory judgment action brought to determine what was owed under a first-party insurance property claim and the insured's counter-suit alleging breach of contract and tort claims. The federal court trial resulted in a unanimous jury verdict of $0 on both the contract and the extra-contractual/tort claims.
Litigation had been ongoing for four years before Bullivant was called into the game. Hundreds of thousands of documents had been produced and a multitude of depositions had been taken.
Every trial is a credibility contest between the positions taken by the parties and their lawyers about the facts. The accuracy of how the facts are presented at trial helps win a case. During the trial, our trial team's goal was to show the jury that we knew the facts and that the facts supported our position. To do that, we used our electronic litigation tools, which enabled us to locate testimony and exhibits on demand and then display the testimony or document on the monitor (after it was admitted by the court). We never made a claim we could not prove.
The standard operating procedure for our complex case paralegal team is to create a document log, players list, and claims chronology so that we can track (1) what has been produced; (2) who is involved in the case; and (3) what are the facts. A document log tracks the document sent and received. A player's list provides instant access to information about the "player," from the staff to the witnesses. A claims chronology is the thinking tool of the case, which is set up in database software and allows us to clarify which facts are disputed and determine if there are any evidentiary issues. Key documents are scanned and linked to the Chronology, which enables us to print those documents whenever they are needed--a real time saver when preparing for depositions and eventually for trial.
Once we had created a document log, players list, and claims chronology, the next step was to put all of the depositions into electronic form and load them into our transcript management system. This enabled us to simultaneously search for testimony on key issues in all 86 deposition and hearing transcripts.
Now we were organized and just in time for trial! The trial was held in a federal courtroom wired for the latest technology. The jury, judge, witnesses, and each counsel table had monitors that displayed information projected from a computer or LCD/Elmo. An experimental "whisper" technology played static white noise in the jury box so that jurors would not overhear the sidebar conferences. A microphone was positioned to allow the court reporter to record the sidebar conferences.
We used trial presentation software to display the trial exhibits and deposition testimony, which displays the videotaped deponent as he/she is testifying and the words also scroll across the screen. We ordered real-time transcripts, so that we had the benefit of live feed (while the court reporter was recording the trial testimony, the testimony would "feed" into my laptop computer). This proved to be an advantage when an argument came up at trial about what certain testimony had been on a key issue. We were able to search the testimony and display it on the judge's monitor. The live feed would continue during the sidebar conferences, so we could search testimony that would aid in the sidebar arguments.
Due to the volume of exhibits, the Trial Judge deferred to the parties to track the admission of exhibits. When our exhibit list did not match opposing counsel's list, we searched the trial transcripts and proved that our list was accurate – again building our credibility with the judge and jury.
A winning case strategy:
· Keep the goal in sight;
· Stay in shape by utilizing the latest in electronic litigation tools;
· Emphasize teamwork and good people skills; and
· Support good lawyering by building credibility.
Mina Stone is a litigation paralegal in Bullivant's Portland office. Ms. Stone has over 20 years experience in supporting attorneys in managing evidence in complex and multi-party litigation. She is the firm's information management specialist and supervising paralegal for the Portland complex litigation team.