let's get rid of big cases

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Let's Get Rid of Big Cases Author(s): Jim Sullivan and Donald Rez Source: Litigation, Vol. 7, No. 4 (Summer 1981), pp. 8-12, 52 Published by: American Bar Association Stable URL: http://www.jstor.org/stable/29758640 . Accessed: 15/06/2014 08:32 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation. http://www.jstor.org This content downloaded from 62.122.76.86 on Sun, 15 Jun 2014 08:32:33 AM All use subject to JSTOR Terms and Conditions

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Page 1: Let's Get Rid of Big Cases

Let's Get Rid of Big CasesAuthor(s): Jim Sullivan and Donald RezSource: Litigation, Vol. 7, No. 4 (Summer 1981), pp. 8-12, 52Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758640 .

Accessed: 15/06/2014 08:32

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 62.122.76.86 on Sun, 15 Jun 2014 08:32:33 AMAll use subject to JSTOR Terms and Conditions

Page 2: Let's Get Rid of Big Cases

Let's Get Rid of Big Cases

by Jim Sullivan and Donald Rez

Big cases are outdated. They cost too much and take far too long. Judges and trial lawyers must find a better way to resolve business disputes.

Big cases were once concentrated in the antitrust and securities fields. Antitrust cases in particular were con? sidered hard to understand because they involved complex economic concepts and policy issues. So, the thinking went, such lawsuits must take a long time and antitrust ex?

perts had to conduct them. This legal folklore lately has

engulfed many relatively routine cases, so that today almost any business lawsuit can become a "big case."

Complexity breeds delay. Delay clogs courts, and the cost of the judicial system soars out of reach.

There are two major causes of complexity and delay. First, although we are on the threshold of a new century, procedures and customs devised in the nineteenth century to settle simple disputes prevent the use of modern tech?

nology to speed trials. Second, no real effort has been made to translate complicated business, economic and

legal concepts into plain words that are easy to under? stand. What can be done?

Step One: As recommended by the American College of Trial Lawyers, the Manual for Complex Litigation should be thrown away. It has been a primary cause of complex? ity, abuse of discovery, and delay. The proposed revision of the present Man ual runs nearly 900 pages, not counting the appendices.

Step Two: The College and the National Institute of Trial Advocacy should form a task force, including two federal judges, to take a fresh look at what can be done to make the federal judicial system work better. That group should urge law schools to teach students to use plain words, prepare a replacement for the Manual, and ad? vocate legislative relief from frivolous litigation, complex? ity-breeding procedures, and restrictions on the use of new trial technology.

The replacement for the Manual for Complex Litigation should be called the Manual to Simplify Cases. The first

part should stress the need to change complex legal terms into lay language. It should tell us to replace every strange technical term in a new case with a simple one. These

strange terms and their simple definitions should be put in a case dictionary for the benefit of the court and jury. The new manual should tell us to force our witnesses to use the

simple substitutes, but the dictionary will help when the

complex terms are found in exhibits or when a witness

forgets. Most briefs and opinions are too windy. Even worse,

they hardly ever do what they should do: tell the reader their position immediately. Advocates and judges should not write mystery stories. Teachers and students need not

go back to study the classic opinions of Learned Hand; there are some fine ones being written today. Take this classic opening paragraph by Presiding Justice Gerald Brown in Selby v. Department of Motor Vehicles:

Leslie Ann Selby wants to drive a school bus. [This not

only tells you what the case is all about, it tells you who won. You just know that some agency wronged Leslie Ann. You or I might have used Ms. and ruined the ef?

fect.] The Department of Motor Vehicles (DMV) summarily turned down her application for a school bus driver's certificate without hearing because she was convicted in 1975 of . . . possessing methyl amine. 110 Cal. App. 3d 470,472,168 Cal. Rptr. 36, 36-37 (1980). Or consider this opening sentence in a recent unpub?

lished opinion from the Ninth Circuit Court of Appeals (by either Chief Circuit Judge Browning or District Judge Hoffman) inXa Grange v. Overseas Oil Carriers, Inc. :

Joseph La Grange, a seaman, cut his hand when he

attempted to open a bottle of beer without using a bot? tle opener. [This is excellent. It is not a classic because the reader would surely think that the employer won and it did not.] (No. 78-3323) (9th Cir. November 26, 1980).

Mr. Sullivan is a member of the San Diego and San Francisco law firm of Sullivan, Jones & Archer, and is a fellow of the American College of Trial Lawyers. Mr. Rez is associated with Sullivan, Jones & Archer in

San Diego, California. Both specialize in business litigation.

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Or, more colorfully (as usual), Circuit Judge Goldberg shows how to do it in Murphy v. Georgia-Pacific Corp. :

We journey today into the mysterious realm of

Merlin, as we are faced with a valiant attempt at legal sleight of hand. Attorneys for defendants have used all the magic dust and abracadabras they could muster in order to change a paper manufacturing company into a construction company. [He only needed two sentences to give us an idea of what the case was about and which side won.] Not satisfied with this first attempt at prestidigitation, for their next trick defendants tried to make the Erie Doctrine vanish into thin air. We find these attempts to pull a construction company out of a hat and to vaporize

Erie to be quite clever. However, because we realize that the sleight of hand is ultimately mere illusion, we are not persuaded by the hocus pocus. 628 F.2d 862, 863-64 (5th Cir. 1980). These outstanding authors have learned what the rest of

us should. They avoid lawyer talk, they get to the point at once, and they use plain but interesting words.

Although the Roman Catholic Church, after nearly twenty centuries of using Latin to try to get messages across to ordinary people, starting to use lay language a

generation ago, most lawyers still use Latin and cumber? some code words. There never was an excuse for these

handicaps.

Mother Goose That all of us are guilty of lawyer talk and need to get rid

of it is shown in The Legal Guide to Mother Goose, by D.

Sandberg (1979). Can you imagine how a plaintiffs lawyer would complain on behalf of Jack and Jill? He would write that they ". . . ascended or caused to be ascended an elevation of undetermined height and degree of slope (hereinafter referred to as "hill"). [Their] purpose was to

obtain, attain, procure, secure, or otherwise gain acquisi? tion to, by any and/or all means available to them a recep? tacle or container (hereinafter known as "pail"). . . ." For those who want to write clearly, there are several splen? did books, such as The Elements of Style (Strunk &

White, 3d ed. 1979), and Richard C. Wydick's Plain English for Lawyers (1979).

The worst problem for lawyers is that we try to dazzle others with long words. ("If you can't dazzle 'em with brilliance, baffle'em with. . . .") Why? We are not hired because clients think we are great authors. Clients hire us because they want a trial lawyer to advocate their position.

The gaseous writing problem starts because students think this is the way to impress their scholarly professors. They believe this because they read "scholarly" opinions. The habit continues when they pass the bar. Our younger trial lawyers write briefs as much for the senior partners as for the judge. Why continue this bias for gas and fog? Plain words,

nicely strung together, are a mark of brilliance, not ig? norance. Winston Churchill was great with words. Take this famous line: "Never in the field of human conflict was so much owed by so many to so few." Or, better still, con? sider this advice from him: "Short words are best and old words when short are best of all." There is not a three

syllable word in either quote.

A recent article in the Wall Street Journal told about a

fog index test that measures the educational level at which the author is writing. To measure your fog index, select a

sample of your writing about 200 words long. Then do the

following: ? calculate the percentage that your words of more than

two syllables bear to the total (but exclude words that must be capitalized within sentences and verbs that become three syllables just because "ed" or "es" was

added); ? add the average number of words in your sentences to

the percentage of your big words (but treat clearly in?

dependent clauses as separate sentences); and ?

multiply the total by 0.4. The total is the number of years of schooling needed to understand what you've written.

J.D. Salinger's The Catcher in the Rye and T. V. Guide have a fog index of 6. This article is about 6.7. Time, News? week, and the Wall Street Journal average around 11. If

your fog index is much above that, and your opponent's is

not, your client could be in trouble. The next part of the new Manual to Simplify Cases

should support new, stern ways to deal with discovery abuses, such as paper blizzards and outrageous tactics in

taking and defending depositions. The courts deserve much blame for this problem. It is usually a waste of time and money to seek sanctions.

Counsel know what they should do, but rarely is there a

penalty for stepping over the line. If there is no penalty for

clotheslining a wide receiver, no one will play by the rules. Before discovery begins in business lawsuits, the court should put both sides on notice that stiff sanctions

(including default judgment, striking claims or defenses or money penalties) will be imposed if any party or lawyer breaks the rules.

Until recently courts never used the most extreme sanc? tion?default judgment. But, "in this day of burgeoning, costly and protracted litigation!,] courts should not shrink from imposing harsh sanctions. . . Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068 (2d Cir. 1979). Or, as another appellate court put it, "It is not our responsibility as a reviewing court to say whether we would have chosen a more

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moderate sanction." Emerick v. Fenick Industries, Inc., 539 F.2d 1379,1381 (5th Cir. 1976). Significantly, the title of Federal Rule of Civil Procedure 37 recently was amended to read: "Failure to Make or Cooperate in

Discovery: Sanctions." 85 F.R.D. 532 (1980).

Discovery Abuse

Dragging out the discovery process certainly falls in the

category of discovery abuse. The Supreme Court recently reminded us that the very first rule of civil procedure demands a speedy and inexpensive resolution of lawsuits.

Herbert v. Lando, 441 U.S. 153 (1979). In Roadway Ex?

press, Inc. v. Piper, 447 U.S. 752 (1980), the Court ap? proved monetary sanctions against lawyers who multiply proceedings. Congress has since approved the levying of

attorneys' fees against a party that needlessly multiplies proceedings. 28 U.S.C. ? 1927 (as amended in 1980).

Some new tools to guard against abuse are needed. Courts should adopt and enforce rules that limit the number of interrogatories that either side can serve. They also should monitor discovery, tailor-make rules, and not let events get out of hand.

Congress and the state legislatures can help. There are

many laws that encourage would-be plaintiffs to sue: at?

torneys' fees, treble damages, or punitive damages. Repeal is not the answer because many proper suits would not be filed without them. But there is no penalty for bring

Corporations settle if computer analysis indicates settlement is

cheaper than defense.

ing strike suits or refusing to settle marginal ones. It is very costly to defend these cases. Corporations increasingly set? tle if computer analysis indicates that settlement would be

cheaper than the projected costs of defense. Unwarranted settlements spawn more unjustified lawsuits. Something

must be done to stop this.

Many of the incentives to plaintiffs to sue stem from a

"private attorney general" concept such as the incentives in antitrust laws and punitive damages statutes. This

highlights the need for measures to prevent unwarranted lawsuits. Public attorneys general at least are checked by political pressures. Congress recently amended 28 U.S.C. ? 2412 ("Equal Access to Justice Act") to provide for at?

torneys' fees to any small business that prevails in any civil action brought by the United States unless the position of the United States was found to be substantially justified. Private attorneys general should have similar constraints.

Congress has given some help by passing the Antitrust

Improvements Act of 1980. 28 U.S.C. ? 1927 was amended so that attorneys' fees, as well as costs, could be awarded against opposing counsel who multiply pro? ceedings in any case. This, however, is too small a step. We should have a law that gives our judges discretion to award

attorneys' fees to the prevailing party if there is a finding

that the losing side had no business going to trial. See

Belton, Feeing the Unfee'd Lawyer, 5 Litigation No.2, at 32 (Winter 1979). The leaders of the plaintiffs' bar should not oppose this approach since they do not file strike suits.

At the very least, Federal Rule of Civil Procedure 68, concerning offers of judgment, should be amended to pro? vide for attorneys' fees as well as other costs incurred after

making the offer if the judgment finally obtained by the of? feree was not more favorable than the offer. Frivolous law? suits would no longer uselessly drag on to trial. See Kempf, The Rule 68 Offer of Judgment: An Underused Tool, 7 Litigation No. 3 (Spring 1981).

In any event, Rule 68 must now be amended to reverse the Supreme Court's decision in Delta Airlines v. August, 101 S.Ct. 1146 (1981). That opinion keeps defendants from recovering their costs under Rule 68 when a defense verdict is returned. Yet that is when a defendant most deserves its costs. Without the knowledge that costs will be taxed against them, the risks in taking meritless cases to trial will be too small to keep some lawyers from doing so.

The new manual should also devise new and better ways of preparing and putting on an understandable case, and should explicitly urge judges to force trial lawyers to do so. The authors could follow the lead given by the Ninth Cir? cuit Court of Appeals in In re U.S. Financial Securities

Litigation, 609 F.2d 411 (9th Cir. 1979), cert, denied, 466 U.S. 929 (1980), in which the court heartily endorsed us?

ing summaries of exhibits on each issue. An example of a

summary exhibit is found in the Appendix to this article.

Why should the court or jury have to plow through hun? dreds of individual exhibits? An excellent example of the value of summary exhibits to a jury is found in Jury: The

People v. Juan Corona, by Victor Villasenor (1977), where the jurors are shown searching frantically for a summary of exhibits relating to each issue. They had choice words for the lawyers' failure to supply this tool.

Much time and money could be saved if attorneys were forced to search for available evidence before launching expensive discovery. In this bureaucratic world, there is much public information available about every kind of

business. The Government Printing Office is a rich source.

Every state also has some agency, such as the Comptroller in California, which churns out reports. These should be obtained and used. Much of this is admissible. Fed. R. Evid. 803(8). Regulatory agency hearings and investiga? tions should be checked for information about regulated industries. State or federal legislative investigations may have produced admissible material. If other similar cases

already are pending in other areas of the country, informa? tion can be exchanged between counsel advocating com?

mon positions. If there has been a prior criminal case, try to obtain grand jury papers.

Advisory Expert Obtaining convincing proof and disproof of damages

usually is left until the last minute, yet this area frequently is the most hotly contested at trial. An advisory expert can aim lawyers in the right direction at the start of the case. Such an expert can tell the trial lawyer what information to obtain for the use of the testifying expert. He will also be able to predict and explain positions that will be advanced

by the other side and suggest ways of meeting them. With

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Page 5: Let's Get Rid of Big Cases

the help of such an expert, the first edition of a trial brief on damages can be prepared. It should be revised as

discovery proceeds so that any holes can be plugged before the cutoff of discovery.

The traditional and stately way of handling documents, in which prospective deposition exhibits were arranged in

chronological order, is a handicap today. Since the most

important documents usually are used with many deponents, one document could bear many different ex? hibit numbers. This is both silly and costly. Before trial, lawyers laboring under this handicap must seek agree?

ment with the other side to correct numerous deposition transcripts to reflect the exhibit number assigned to the document at trial. This dinosaurian and costly approach should be discarded. It is completely unacceptable if

videotape depositions are used. It would put the trial

lawyer in the position of telling the jury, after they have seen and heard the witness on videotape, that when the witness said that Jones Deposition Exhibit 56 accurately reflected what happened at the meeting, she really meant DX-500. Everybody will understand what PX and DX stand for. Why not try some new exhibit stickers?

As soon as the prospective deposition exhibit has been selected, it should be given a permanent PX or DX number. Many trial courts still use the old fashioned ap? proach that permits plaintiff to use numbers, but relegates defendant to the use of letters. In major lawsuits today, all of us often must cope with several thousand exhibits. BS and BM caused enough trouble two decades ago when we had fewer exhibits and more inhibitions. Why should we have to provoke giggles by letting plaintiffs lawyer ask a witness what he thinks of Defendant's Exhibit AAA BS? This ancient custom must go.

Quick Retrieval Aside from being modern, there is a great advantage to

the use of the permanent PX-DX system if a computer is used to assist in the preparation of the case. If depositions are stored in the computer, the system ensures that the

testimony of each deponent regarding each exhibit can be retrieved quickly.

An issue index, with permanent exhibits coded to it, is

helpful. Assume that plaintiff is asserting that the statute of limitations has been tolled because of fraudulent con? cealment. That general issue should be assigned a number. A subnumber should be given to each element of

proof, such as "restricting information on a need-to-know basis." Every lawyer and legal assistant should be drilled to make certain everybody knows what each issue descrip? tion means because the exhibit numbers and deposition summaries will be coded to it so that everybody working on the case has an evidentiary overview. See P. Madden, In?

formation Management in Complex Litigation, 4 Litiga? tion No. 3, at 12 (Spring 1978). The issue index should not be too detailed. Every case should be pared down to no more than ten basic issues. Once the exhibit numbers are coded, preparation of summary exhibits is easy.

Trying any case successfully requires getting key points across to the trier of fact. A party trying to deliver messages in a multi-million dollar lawsuit should have expert help.

Most corporate clients have some employee who can help devise visual aids that jurors can understand. If your client

does not, get one. Unless you are willing to defy the odds, you must make heavy use of visual aids. Psychologists tell us sight accounts for 85 percent of a person's perception; hearing accounts for only 10 percent.

Bob Hanley, lead counsel for MCI in the case that re? sulted in a $1.8 billion verdict against AT&T, used an out? side communications expert. He produced a movie that

taught the jury how long distance signals are sent and received. The military has long used training films. We should have been doing this for decades.

Video Depositions Transparencies or blow-ups of all important exhibits

should be prepared before any offensive depositions begin because today's lawyer should videotape depositions. Although permission to allow videotape depositions has been and increasingly is being liberally granted, it should not even be required. The camera either prevents evasion or highlights it. It also reduces objections and coaching by counsel and reflects those long pauses between the ques? tions and answers. After all, judging credibility at trial is a

very important job. How can a fact finder do it well with

only a cold transcript? Videotaped testimony can be spliced for final argu?

ment. That way, the trier of fact can see and hear what each person said about disputed events. Also, blown up freeze frames of witnesses' faces when they are being evasive are powerful tools. Videotape equipment is

relatively cheap?-a reusable one-hour cartridge costs about $15. Many federal courts now permit the use of salaried paralegals to operate cameras. This reduces the cost; a proper order will ensure fairness. See D. Bala banian, Medium v. Tedium: Video Depositions, 7 Litiga? tion No. 1, at 25 (Fall 1980).

The Supreme Court properly has been pressuring us to find less expensive ways to resolve disputes. One small step would be to see to it that reporters are not always required when depositions are videotaped. The notion that tapes can easily be altered is a myth. The worst that can happen is an equipment failure and a monitor can detect that at once. Besides, videotapes are more accurate than

transcripts. In a recent trial, the transcript of a witness under cross

examination reported as follows:

Q. Wasn't he quite disturbed? A. I don't recall that. He was disturbed.

The party representing the witness played the videotape and that answer clearly was:

A. I don't recall that he was disturbed.

It is the duty of the trial bar to push for the use of video?

tape as a matter of right in state courts. Federal Rule of Civil Procedure 30(b)(4) should be amended to allow use of

videotaping, subject only to restrictions designed to ensure that the filming is fair. The visual aids should be used because we will see more and more videotapes at trial, and

appearance of a witness rarely should occur. This route makes possible a less costly trial by saving the time of busy executives and expensive lawyers.

Federal Rule of Civil Procedure 29 presently permits all trial testimony to be videotaped if the parties so stipulate. It also allows the camera operator to swear the witness.

But, amending Rules 26, 27, 28, and 29 and Federal

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Rules of Evidence 804(a)(5) and 804(b)(1) should be con? sidered. The changes should require each side, shortly after the case is filed, to tell the other the names of their witnesses and whether each will appear at trial in person or on videotape. They should also state that an adversary will not be entitled to the "missing witness" instruction if the other side elects to videotape witnesses under their control. Traditionalists will say that requiring them to cross examine before completion of discovery does not seem fair. If new facts indicate a real need to cross-examine an adverse party's witness again, it can be done and spliced onto the first try.

Heavy use of videotapes in a bench trial could free

judicial time. Lawyers could show up for opening statements and leave. The judge could watch the tapes and read summary exhibits during slack periods, such as

awaiting jury verdicts in other cases. The lawyers could then reappear for closing argument. The Constitution does not require that the lawyers and the judge must

always be present in a jury trial. It is quite a change, but is that necessarily wrong?

This system would require rulings in advance of trial on

objections to portions of the videotapes. It would speed up the trial; nobody could seriously complain about that. It would also simplify many appeals. For example, appellate courts could review the videotape and order prejudicial evidence excised. The offending material could be deleted and the original tapes used on retrial, at almost no addi? tional cost in time or money. Judge McCrystal of the Ohio Court of Common Pleas has been using videotaped trials

successfully for several years, and has written many ar? ticles on the matter. Most lawyers will not put up with this

yet, especially in jury trials, but there is no reason to use the old ways in bench trials.

Inconsistent Theories

Litigants should be required to jettison weak and incon? sistent theories. Professor Younger says that at common law the defendant was entitled to reply like this to the

plaintiff who claims that his cabbages were eaten by the defendant's goat:

Plaintiff did not have any cabbages; If he did, they were not eaten; If they were eaten, it was not by a goat; If a goat ate them, it was not my goat; But, if it was my goat, he was insane.

This practice might have been acceptable when lawyers were paid $2.50 an hour and a dispute about a few lost cab?

bages was a big case. It is not acceptable today when some trial lawyers command $250 and the stakes are much

higher. Trial judges should force us to pare down our cases,

which take forever to try. We always say that some cases

just take a long time, but we have bored the juries to death while we tried them. A way must be found to try any business case in less than 35 trial days. If the lawyers can? not find a way to do it, the court has the power to do it for them. It should be exercised.

Such discipline will not unduly handicap us if we plan for it. Use of summary exhibits will save days of trial. Each side should have about ten summary exhibits. Rulings on

admissibility should be obtained before trial. There are hot documents in almost every case. These can still get

special attention by remaining as separate exhibits, and

they too should be ruled on before trial. It is the court's duty to help the jury to understand a

"complex" case. Trial lawyers must assist. Effective use of

pretrial planning and procedures by the court and lawyers can lay the groundwork for doing away with fog.

Consider a teaching expert or a master to help the jury understand the industry involved and technical matters. Think about ordering sequential trials for discrete issues with separate opening statements, closing arguments and

jury instructions regarding each one.

The whole process should try to help the jury perform its task as well as possible. Pivotal jury instructions should be read at the start of the trial and each juror should be given a copy. Similarly, if the case is to be submitted to the jury on interrogatories, a preliminary set of the interrogatories should be given to the jury at the start of the trial.

Jurors should be allowed to take notes. The lawyers should make sure that the glossary or dictionary of

technical, legal and economic terms is understandable and supply it to each juror.

Each juror could have a "trial notebook." The contents should be blank paper for notes, the glossary of words of art and technical terms, an index of names and titles of key people, jury instructions, special interrogatories (if used), tabbed copies of summary exhibits, and tabbed copies of

up to 30 highly significant individual (or traditional) ex? hibits per side. An indexed copy of deposition summaries, summarized answers to interrogatories, summarized re?

quests for admission, and stipulations should be included if they are to be a part of the record.

Lawyers should attempt to get permission to participate more in questioning of prospective jurors. Although under

present Federal Rule of Civil Procedure 47(a), federal

judges have the discretion to permit the parties to question the jury, it is rarely allowed. On June 13,1980, Senate Bill 2831 was introduced to amend Rule 47(a) to require judges to allow attorneys to participate, within reasonable limits, in voir dire. The amendment should also prohibit further use of this hoary term and replace it with "questioning."

At the very least, lawyers should supply requested ques? tions to help the judge prepare. Convince the court to limit excuses to retain a better cross section of the populace. Have the court consider the possibility of recesses after the trial of each separate issue to reduce juror hardship and lessen excuses.

By thorough preparation and disciplined analysis, com?

petent counsel can transform long, complex cases into

short, simple ones. Not only can this be done, it must be done. A judge or jury that does not understand the case is not likely to give a just result. Furthermore, courts in?

creasingly recognize that it is the duty of lawyers to present an understandable case. As a matter of professional pride and duty, lawyers must begin to simplify their cases.

There are many techniques available to assist in this task. Use of new technology and revised concepts of pre? sentation of evidence help. However, the primary focus

must be on the preparation of a clear and simple case by the trial lawyer. By boiling down issues and proof, com?

petently handling exhibits, and educating the jury, the trial lawyer performs the job as it should be done. Simpli

(Please turn to page 52)

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Page 7: Let's Get Rid of Big Cases

waiver, most contractors will hesitate to take the risk, giving the gov? ernment a tactical advantage.

In these times of mounting con? struction costs, state and local gov? ernments must expect extensive claims that often lead to litigation. Contractors have little incentive to

keep peace with the municipality. By anticipating litigation and taking the

foregoing steps, state and local

governments may avoid a problem that is already too much a fact of life.

Big

Cases

{Continued from page 12)

fying the complex cases is a challenge and a duty that those on the benches and in the trenches can and must ac?

cept.

APPENDIX

Plaintiffs Summary Exhibit No. 1

RAMJACS INTERNAL DEBATE: SHOULD RAMJAC

PURCHASE SLUDGE FROM DUDCO AND NODAK?

May 26, 1972 "The conclusion of the previous analysis remains unchanged, i.e., we should not now enter the

market for additional quantities of sludge."

[PX 170, 5/26/72 MJ. Teeter memo of file]

May28-June 1, 1972

"Ramjac executives Teeter and Haws returned to Los Angeles after attending the meetings of

sludge producers from the major foreign producing countries in Cannes, France." At those meet?

ings, "the sludge producers agreed to establish a floor price for sludge, to restrict the supply of sludge, to allocate sales of

sludge, and not to sell to the mid

dlemen except at discrimina

torily high prices/' [PX 57b, 6/15/72

OJ.C. Thompson memo to J. Lewis; PX59, 6/28/72 N.M. St. John memo to R.K.

Smith; PX 51, 6/5/72 N.M. St. John letter to I.W. F?rber]

June 14, 1972

"On Wednesday, June 14, a

meeting took place in Chicago in which Mr. Teeter participated. During this meeting, questions were raised which significantly affect the validity of . . . the cor?

porate strategy which should be followed in the production and

marketing of sludge. As I understand the substance of this

meeting, it is: 1. We will not produce any

sludge from our own mines; and

2. we will go to the market and purchase all available

sludge from all domestic

producers including Dud co and Nodak."

[PX 58, 6/16/72 B.J. Leak memo to W.C. Fields]

Note: The use of direct quotes wherever possible reduces dis?

putes regarding accuracy. Obvi?

ously, a real summary exhibit would reflect the contents of a hundred or more individual PXs.

Controlling

Costs

(Continued from page 27) within a specified range. Complicate such inquiry by a desire to correlate the test data to dates on which average

mean temperatures were within a

specified range and you have a task fit only for a computer.

Similarly, a computer can analyze data by changing one factor. For ex?

ample, in an antitrust action, assume extensive discovery produced vast

amounts of data concerning orders, inventories, shipments and customers of two competitors. Plaintiffs lawyer may be disheartened because he can find no "smoking gun." Before com?

puters, experienced litigators fre?

quently "smelled" that something was wrong, even when they could not find the hard evidence to support that

feeling. With a computer, lawyers can take

thousands of isolated pieces of infor? mation about transactions and sort them as often as necessary by available criteria. These computer? ized analyses may show, by isolating and cross-referencing data, that before the alleged conspiracy started, the parties had followed distinct pat? terns of inventories, shipments, lead times for production and the like, but that afterward the conspirators changed their behavior. A paralegal could do this analysis but a computer could do it more quickly, cheaply and

accurately. A computer can also analyze data

to isolate, identify and follow up on "holes" in information produced. If cartons of documents failed to con? tain a few isolated but critical docu?

ments, the computer could spot them

by looking for gaps in series, se?

quences, and dates. While large systems (mainframes

and mini-computers) will work faster than the micro-computers introduced in the last few years, the latter have

capabilities more than sufficient for most law firms at much lower prices. A reasonably complete micro?

computer system, including software, data storage, and print capabilities will cost well under $25,000. More im?

portantly, micro-computers are sim?

ple enough so that they can be pro? grammed for and by attorneys.

Micro-computers can transmit and receive over telephone lines, at high speed and low cost, memoranda, let? ters and other short documents. Com?

munication among mini- and micro?

computers made by different manu? facturers is becoming easier. Law firms and clients now require that other firms have the ability to transmit data, prior case documents, and other information to and from each other. Interconnected computer networks may well become a new sine qua non for corporations when they select their lawyers?trial and non

litigation alike.

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