Hand-me-down Trials: Learn what the case is really about before taking it overAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 84, No. 9 (SEPTEMBER 1998), pp. 70-71Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840429 .

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LITIGATION

Hand-me-down Trials Learn what the case is really about before taking it over BY JAMES W. McELHANEY

Angus was by himself in the back booth of the First Federal Soup and Sandwich Shop, his lunch sitting in front of him, cold and un touched. It worried me a little, so I turned on my famous cheerful de

meanor as I sat down. "Is something bothering you,

Angus, or are you thinking great thoughts?" I said.

"Both," said Angus. "I got a call this morning from an old law school friend who has spent most of the past two years getting a massive unfair-trade-practice case ready for trial. He figures his client's dam ages are more than $250 million.

"So here he is, less than 12 weeks away from trial, and he asks me to take over as lead counsel," Angus said.

"Sounds like your cup of tea," I said. "Are you going to do it?"

"I'm not sure," said Angus. "Why not?" I said. "Just like

there are people who go around the country building do-it-yourself log home kits for people who discover they can't do it themselves, there are some excellent trial lawyers who can take over cases for other lawyers, and you're one of them."

Angus smiled and asked the waiter to reheat his soup, which I took as a good sign. "The problem is," he went on, "there's a lot I need to know before I can say yes or no."

"Like what?" I said. "Like why do they need a new

lawyer?" said Angus. "Maybe my old friend has just figured out that his case is a real loser and would like me to take the loss for him."

"On the other hand," I said, "sometimes there is a serious dis agreement between clients and their lawyers, and getting a new lead counsel is the only way the old law yers can keep from getting fired."

"Which means getting hired

James W. McElhaney is Joseph C. Hostetler Professor of Trial Prac tice and Advocacy at Case Western

Reserve University School of Law in Cleveland. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

70 ABA JOURNAL / SEPTEMBER 1998

into the middle of an ongoing fight between lawyer and client," said Angus.

"But usually getting a new lead counsel at the last minute

means everyone thought the case was going to settle, and now they realize it won't," I said.

"Right," said Angus. "And when the old lawyers stay on board, sometimes it means that the new lead counsel is JB just brought in to generate a JH little fear in the other camp." W??

"Which makes the new IH lawyer a figurehead instead of

m^? the one in charge," I said. i^l "That's not my line offjjH work," said Angus. IjH "Which makes it sound |jHj like you ought to get together JH with your friend and his client iH to get the lay of the land before ,||H you make a decision," I said. J|^| "We're meeting this after-

J^B noon," said Angus. "But there

l^H are some other things that are i^H

bothering me besides why they ?|^ really want me." IH

Catching Up With the Team fl "Anytime you take over

a case right before trial, you W? have special problems," Angus i?^P| said. "All the other members of the team know more about the case than you do, which makes it hard to become the new captain of the ship. Inevitably there are some real challenges from other mem bers of the crew.

"That's not necessarily bad? it's one of the ways in which you learn about the case. But if one of the other lawyers is actually trying to get the job of captain, it can eat up time you can't afford to lose.

"Second, because you are so new to the case, you weren't there for discovery. You didn't get to par ticipate in the depositions. And no

matter how carefully you do it, or how thoroughly you are briefed, reading a cold transcript or even

watching a video deposition is not like being there yourself to evaluate the witnesses and the other law yers," said Angus.

"Even more important, when you come in at the last minute, you

don't know where all the bodies are buried and you don't know where the land mines are."

"Like what?" I said. "Like which little facts scat

tered here or there in a deposition

or a document have th? potential to become major inconsistencies if the other side figures out how to use them the right way," said Angus. "Or how pushing a strong point too far might spring a trap your opponent laid for your client months ago."

"It sounds like you're thinking about saying no to this old friend of yours," I said.

"Not really," said Angus, fin ishing his cold grilled cheese sand

wich. "I was thinking how some

lawyers use a massive brainstorm ing session to smoke out as many traps and problems as possible.

"You get every lawyer who has worked on the lawsuit for your client into one big room and look at all four sides of the case."

"Wait a minute," I said. "You

ILLUSTRATION BY JOHN SCHMELZER

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said 'all four sides of the case.' I had the impression this was a two-party lawsuit."

"It is," said Angus. "And when you brainstorm a case that has only two parties, you have to look at all four sides: your strengths and their

strengths, and your weaknesses and their weaknesses. Thinking about them as separate categories is the best way to keep from miss ing something important,

"The effect of this brainstorm ing session is remarkable. When you get everybody talking about all four sides of a case, you uncover

"And while you're putting up the lists of strengths and weak nesses on the walls of the meet ing room?so everybody can see them while brainstorming?there's one more list you must make at the same time. I call it What We Need to Know," said Angus.

"It sounds like this is a good system for starting to get ready for any trial, whether or not you've got a new lawyer on the team," I said.

"It is," said Angus. "I make these lists for every case I try. But it's particularly important to get everybody together in a big brain

storming session when you're bring ing a new lead counsel up to speed."

How to Fill a Pickle Jar "Why do I get the impression

that you had this all thought out before I ever sat down?" I said.

"It still helps to go through it out loud," said Angus.

how you're going to put it all to

gether," Angus said. "And this is when I tell everybody about the business-planning expert and the

giant pickle jar. It's a story I heard from Bob Maxwell, of Las Vegas,

N.M."

"How could I resist a lead-in like that?" I said. "Tell me the tale about the pickle jar."

"A business planner was work ing with a group of executives in a

company that was putting together a whole new marketing system," said Angus. "He put one of those

huge five-gallon pickle jars on a table in front of them?completely empty?and started pulling big rocks out of a box and putting them into the jar. When he got as many rocks in as he could, he said, Is there any more room?'

"Everybody said no. "Then he got out a bag of grav

el and started pouring it into the jar, shaking it down until there was

gravel mixed in with the rocks all the way through the jar. Then he asked, 'Now is there any more room?'

"And they all said yes. "Then he poured in sand and

shook the bottle until there was sand mixed in from top to bottom. And he said, 'Is there any more room now?

"Most of them said yes, but a few said no.

"So he got a bucket of water and poured it in the jar until it

was up to the rim. Then he said, 'What's the point of this?'

"They said, There's always room for more.' "

Wrong!' said the

planner. There is no more room. The point of the exercise is you put the big rocks in first.'

"That's how it is with most projects. When you're putting the theory of the case together, the first thing you do is decide which are ?e big rocks."

"That's great," I .said. "Because after

you know which are the big rocks, you're ready to

start working?choosing ..,?? the words that explain the case in English, deciding which

witnesses to call, figuring what kinds of demonstrative evidence to use, writing evidence memos that

anticipate what the other side is

going to object to, and planning di rect and cross-examinations."

"Exactly," said Angus. "Which reminds me. My old friend asked if there was anyone I wanted to bring into the case with me."

"He did?" I said. "When do we start?"

ABA JOURNAL / SEPTEMBER 1998 71

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