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Litigation Antics vs. Litigation Tactics: Knowing Where to Draw the Line


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by Randy Evans and Shari Klevens

The focus of the presentation is on how to be more successful in litigation, including by employing litigation tactics, some of which are outside the merits of the transaction, litigation, or representation to bring about a successful resolution, and how to recognize the appropriate boundary for such approaches. The presentation will also include a discussion of how to recognize the approaches and attempt to stop opposing counsel from using them against you.

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Litigation Antics vs. Litigation Tactics: Knowing Where to Draw the Line

  1. 1. Litigation Antics vs. Litigation Tactics Where Is The Line? 10th Annual Chicago CLE Seminar for In-House Counsel May 24, 2017
  2. 2. • What separates the "top tier" of lawyers who act within the rules of ethics from the rest? • Employing litigation tactics to bring about a successful resolution • What is the boundary? • Recognize those approaches when used by opposing counsel 2 Introduction
  3. 3. • A "win" can differ depending on the circumstances: win on merits, vindicate reputation, clear up record, public relations, dismissal, survival, resolution of uncertainty, etc. • Varies for corporate defendants, individual defendants, plaintiffs, governments • Helps define client expectations • In legal malpractice cases, the definition of the "win" may have moving goalposts 3 1: Define a Win
  4. 4. • Know the boundaries of acceptable conduct; may depend on to whom you are reporting • Be aware of all extra-judicial circumstances and details -- what else is going on? • 1/14" • The ability to articulate a holistic view of all the factors that apply can come down to things that have nothing to do with the merits of the case • When preparing within the boundaries of ethics and professionalism, that extra level of detail may make the difference • Adapt to the circumstances 4 2: There Are No Rules Unless There is a Rule
  5. 5. • Cases that are out of tilt or heading in the wrong direction • Direct correlation between these kind of cases and the quality or competence of the attorney on the other side • Shoot straight with the client • Take a step back - is there something we can do differently to change the trajectory of the case? • Can reevaluate strategy, counsel, value of case • Screening 5 3: Preparing for Murphy's Law and Snake-Bit Matters
  6. 6. • Know everything you can know • Look at all other dynamics that relate to the litigation (including the parties to the litigation) • Google Alerts: learn about bankruptcies, retirements, zonings, other factors that might impact the representation • Docket searches for other litigation involving clients and others -- you may learn something before the client does 6 4: Opposition Research is as Good as the Merits
  7. 7. • The record reads cold • Forensic visualization • Beware of waiver in affirmative defenses or other pleadings • At the end of the case, go back to the opponent's pleadings: what's missing? What have they failed to prove? • Shape future requests for discovery or motions in limine 7 5: Pleadings and Drafts - What Difference Does it Make?
  8. 8. • Use of discovery to identify pressure points • What to do with the information gathered? • Building a case brick by brick • Cases often become about things other than the ultimate merits - asset discovery, truthfulness at deposition, completeness of production, uncovering information to lead to additional claims or counterclaims 8 6: Discovery, Information Requests, and Due Diligence: Sequencing Makes All the Difference
  9. 9. 9 7: Trials and Closings - The World is a Stage and We are Mere Characters in a Play • Jury trial lawyers have unique skills • Balance between performance and genuineness • What is the most common mistake that a lawyer makes in closing argument for a jury trial? Don't exaggerate! • How to prepare for trial and closing
  10. 10. • Opposing counsel and their clients: opposing counsel may have something to prove • Never mislead Judge as to facts or law • Litigation and deal-making can become personal: how to overcome slighted feelings or other issues that can impede professionalism? • Difficult judges • Talking to opposing counsel to smooth ruffled feathers 10 8: Hostile Judges and Difficult Opponents - How to Make Friends and Influence Enemies
  11. 11. • The role of momentum • Returning to "what is a win?" • Courts are wary of personalized disputes, but eager to enforce rules on professionalism • Crafting motions that will put pressure on settlement • Tactical decision to leave some issues for trial 11 9: Motions Practice and Tactical Negotiations - Losing Battles to Win Wars
  12. 12. • What do jurors want? The closest thing to the truth. • Use of jury consultants: credibility of witnesses, tell hard truths to clients • Regional views of lawyers: can a "My Cousin Vinny" moment happen in real life? • Home Cookin' 12 10: Clients and Juries - They are Smarter Than You Think They Are
  13. 13. •Questions? 13
  14. 14. 14 Randy Evans Partner D +1 404 527 8330 E Shari L. Klevens Partner D +1 202 496 7612 E Thank You