PREPARING FOR TRIAL

Case Theory and Themes

Preparing to Present Defense

Narrow Legal and Factual Issues

Trial Logistics

Application of the law to the facts of the case.

Basis for the legal reasons why you should win. “Why does the law say I should win?”

What you want to prove happened.

Develop early.

Everything done furthers case theory.

Message of trial story: Provides - conceptual framework for the facts - emotional undercurrent for the case. Encourages the jury to react VISCERALLY

Makes jurors WANT to argue for you

Shows why your side should win

Moral Underpinning: Right v. Wrong

Mock Trials

Focus Groups

Types of Themes:

Finding the truth

Responsibility

Lack of objective evidence

NTSB

Jury

Education: 3 college degrees (majors: computer science,

professional development, geology)

7 high school and some college

1 did not finish high school

1 declined to state

Work History: 5 unemployed

4 administrative assistants

1 fast food cashier

1 marketing manager

1 teacher

Discovery 500,000+ pages of

documents in recent case

Depositions 865 exhibits

Trial 250

Key Facts:

Sekisui bought a company (“ADI”) from Hart.

Sekisui claimed breach of warranties related to purchase agreement.

Sekisui did not issue a litigation hold letter until 15 months after filing its notice of claim.

Hart’s ADI emails were deleted.

Magistrate judge: No malice or prejudice to Hart = no sanctions.

Court’s Holding:

Rejected Magistrate recommendation.

Hart entitled to:

adverse inference; and

monetary sanctions for cost of spoliation motion.

If ESI is destroyed (gross negligence):

DO NOT HAVE TO SHOW MALICE

DO NOT HAVE TO SHOW PREJUDICE

The start of a process - not a single letter. A process to preserve ALL forms of relevant information when

litigation is reasonably anticipated. Must be in writing. Summarize legal issues. Identify information to be preserved. Halt normal retention policy; Do NOT upgrade, delete files. Contact person for questions. Sent to IT staff and ALL persons likely to have protected

information.

Not a one-and-done task.

Imposes continuing obligation on lawyers (in-house and outside) to:

understand client’s e-storage system; and

remind key players of their preservation obligation.

See Zubulake v. UBS Warburg, 2004 WL 1620866 (SDNY July 20, 2004) (“Zubulake V”)

AIRCRAFT BUILDERS COUNCIL, INC. LAW REPORT Fall 2007

ESI: Electronically Stored Information, The New Federal Rules Regarding Preserving And Producing ESI

AIRCRAFT BUILDERS COUNCIL, INC. LAW REPORT Fall 2005

Spoliation and Suppression of Evidence: Recent Cases Are Making the Rules Clearer – And Tougher

Client witnesses:

• Company accident investigator

• Product design engineer

• Persons addressing factual issues (problem documents; prior product issues)

Experts:

• Accident reconstruction

• Metallurgist

• Biomechanics

• Structural engineer

• Meteorological

• Thermal physics

• Medical/Rehab

• Economist/damages

Prepare testimony and practice with witness.

Select EXHIBITS for use during direct examination.

Create DEMONSTRATIVES for each witness’ testimony (graphs, photo blow-up, video, animation):

A JURY PRESENTATION IS IMPROVED BY DEMONSTRATIVES AND GRAPHICS.

Main Wreckage

Takeoff Site

4 Topped Trees

View Looking North

Consider and select DEPOSITION DESIGNATIONS:

Exchange with plaintiff

Consider and raise objections to plaintiff’s designations

Respond to plaintiff’s objections and select counter-designations

Can be many depositions; Thousands of pages of testimony to review.

Certain witnesses will not be at the trial; only way to get testimony into trial record.

Testimony will support POST-TRIAL MOTIONS and/or APPEAL.

Prepare final TRIAL EXHIBIT and WITNESS LIST:

Exchange with plaintiff

Consider and raise objections to plaintiff’s lists

Response to plaintiff’s objections to defense list

Consider and add additional exhibits/witnesses to counter plaintiff’s lists.

SEEING THE OTHER SIDE’S LIST OF EXHIBITS HELPS TO CRYSTALLIZE WHAT THE OTHER SIDE’S PRESENTATION WILL FOCUS ON.

SUBPOENA non-party witnesses. They will not show up unless ordered to.

FAA

ATC

First responders

Eye-witnesses

Treating physicians

Accountants

Choice Of Law Motion

MOTIONS for summary judgment/partial judgment: Government contractor defense

GARA

State law limitation on damages

State law limitation on claims (e.g.: no post-sale negligence claims)

Successful motions may severely limit the claims and damages plaintiff can present at trial.

Stipulation Of Facts.

MOTIONS IN LIMINE:

Admission of NTSB factual reports.

Exclusion of certain evidence – usually related to damages, punitives.

Trial Statement.

Travel arrangements – flights/hotel for attendees.

Courtroom set-up – what will court allow? What technology will fit in the courtroom?

Interview and select local trial assistance vendors: IT support

copy company

trial graphics team

jury selection assistance

War room set-up - identify supplies (computers, laptops, printers) needed

“Everyone has a plan until they are punched in the face.” – Mike Tyson

There will still be surprises. Be prepared. Be flexible.