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Words of Wisdom

November 17, 2015


Are Game Changers in Lawsuits Always What We Expect?


It is hard to predict what might be game changers in litigation. They can come when you least expect them—like when the opposing party’s key witness dies unexpectedly during trial, the judge who knows your case and has been ruling your way decides to retire just before trial, a controlling decision gets handed down changing the law, a witness confesses on the stand to defrauding your client, or you ask “just one more deposition question” that opens the floodgates to helpful information. I have experienced each of those in my career, and while you may not see game changers coming, you have to be able to roll with them.

 

If you have done your work and prepared well, you can usually adapt to whatever the case may throw at you. With hard work and a little luck, even “negative” game changers can be turned to your advantage. For example, losing the witness at trial meant getting to use the favorable cross-examination that had been carefully planned and pinned down by video deposition. Having the judge retire posed the challenge of educating a new judge, but also gave us opportunities to persuade someone who brought no preconceived notions to the trial. A timely Supreme Court decision reversed an adverse summary judgment decision, showing the court that the defense position had been right all along, and avoiding a costly appeal. The at-trial confession of fraud by a witness whom we had to locate and convince to testify sealed the fate of the lead conspirator—who was caught by surprise by the damning testimony. And taking a chance to follow up with “just one more deposition question” led to evidence that paved the way to prevailing on summary judgment and obtaining a permanent injunction against future misconduct.

 

Because game changers can come in many different forms, they are difficult to predict. Sometimes you will only see the game-changing moment after it has happened. But because even basic and mundane things like planning and preparing, doing your research, thoroughly investigating facts, finding and interviewing witnesses, and taking calculated chances can significantly impact your case, you always have to be on your game.

 

Erica Calderas is a partner at Hahn Loeser & Parks LLP in Cleveland, Ohio.

 

 

An associate came to my office a couple of years ago and said: “I hear you’re a total evidence geek. I’m working on a trial binder, and the other associates said to come to you for help getting some tricky documents admitted.” Geek or not—and I’ll gladly accept the moniker, since I believe it refers to sharp trial skills and my passion for trial practice—I do enjoy tackling evidence questions in the courtroom. And it was fun to open up the Rules of Evidence and put my head together with this bright associate as he prepared for one of his early courtroom experiences.

 

It was a surprise to me that trial practice became my game. I thought I’d be a transactional lawyer, or perhaps specialize in securities offerings and filings. With an undergraduate business degree concentration and terrific exposure in my firm’s summer program to corporate and securities projects, I loaded up on “business track” electives in law school and—gasp—did not enroll in the trial advocacy class. The closest I got was volunteering as a witness for my friends who did take the class, and having my best rehearsed testimony excluded pursuant to a clever motion in limine. But my assignment to the defense team in a securities fraud case as a young lawyer was a “game changer.” When it came time for us new hires to request departmental assignments, I put “litigation” at the top of my list in bold capital letters.

 

As a trial lawyer, I experienced the exciting “on your feet” moments seen on TV. But, as all trial lawyers know, success in trial practice comes from months, even years, of strategizing, with intense work and late nights during trial preparation and trial. At one of my early trials, acting as second chair to my mentor, the admission of “ancient documents” was a game changer for me. We were litigating ownership and control of a profitable closely held corporation after the founder had died, leaving less than perfectly organized minute books and stock ledgers. Our clients’ claim depended on the admission of very old, musty-smelling documents found in a storeroom at one of the company’s facilities. Initially the court didn’t understand the “ancient documents” exception to the authentication and hearsay rules. It excluded all of our clients’ documents. After a day in trial, I returned to the office, and, at about 3:00 a.m., completed a brief that outlined the history of the rules and argued for reconsideration of the devastating ruling. At 7:30 a.m., I delivered the brief to the law clerk. When the trial began at 8:30 a.m., the judge announced that we were right, and the evidence would be admitted. Our clients won the case. They mounted and framed those critical, musty-smelling, ancient documents.

 

Not all ancient documents are musty-smelling corporate records, of course. And proposed rules updates to catch up to the norm of electronically stored information may bring another game changer. The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed abrogation of Evidence Rule 803(16), which provides a hearsay exception for “ancient documents.”

 

Evidence geeks: Game on.


Julia B. Meister is a partner at Taft Stettinius & Hollister LLP in Cincinnati, Ohio.

 


 
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