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Best Practices: Litigation TimeliningEarly Case Analysis, Witness Prep and Cross, Motion Practice & More

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Best Practices: Litigation Timelining

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Host

Angela Cardinale

● Senior eDiscovery Specialist at Lexbe, specializing in working with clients handling eDiscovery in complex litigation, requiring a high level of precision and expertise.

● Certified by the Association of Certified E-Discovery Specialists (ACEDS).

● Angela is also a Litigation Paralegal with 15 years experience with both plaintiff and defense law firms in a variety of practice areas.

Angela Cardinale800-401-7809

(512) 956-5594 [email protected]

eDiscovery for the Paralegal Advantage


Agenda

● Why Timelining is More Important than Ever

● Early Case Analysis - Timelines or Data Analysis

● Why Timelining is Often Haphazardly Done

● Good Timelining Software Should. . .

● Timelining Uses

● Examples

● Conclusion


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Why Timelining is More Important than Ever


○ More Documents and Evidence+ Vastly more data is captured and available than ever before.+ Email, text, document drafts, etc. + Often provides a pretty complete record of contemporary thoughts and impressions.

○ Attorneys Less Involved in Documents Early+ Use of junior or outside reviewers.+ Too many documents, too little time.+ Productions can now be completed without attorneys looking at key documents in detail.

○ Challenge of Finding the Key Documents+ Still only a few really key documents, but harder to find now.

○ Getting Educated About the Key Documents and Case Facts Early+ Make decisions about case evaluation and depositions.

Best Practices

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Early Case Analysis - Timelines or Data Analysis


○ Find New Documents, Data Sources and Custodians+ Key document and fact analysis lead to new documents and custodians + ESI data mapping and custodian interviews

○ Coordinate Witnesses with Evidence+ Avoid witnesses being discredited

○ Tie Action Elements/Jury Instructions to Evidence+ Do the facts in the documentary evidence support legal elements of the action?+ Relate documented case facts to intended jury instructions

○ Build a Coordinated Case Story+ Legal case consistent with the documentary evidence+ ‘Story facts’ consistent with the documentary evidence

Best Practices

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○ Ambiguity in Term ‘Early Case Assessment’+ Used two different ways

○ Original Use - Assess case facts and witnesses+ Key participant and document ID+ Witness interviews+ Timelining

○ Recent usage+ Quantitative analysis of incoming electronic stored information (ESI)+ Statistical distribution of email and other case documents by time, custodian, etc.

○ Both valuable but different

Best Practices

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○ Your Witness Testifies Inconsistent with Evidence+ Witnesses do not remember all the digital evidence.+ Witnesses have selective and favorable memories of past actions.+ Digital evidence must be examined and organized to make consistent.+ Failure to do so risks your witnesses being compromised.

○ Failure to Take Advantage of Opposing Witnesses + Opposing witnesses’ testimony and story should be tied down to avoid later fabrication and retelling.+ Attorney must have a good idea of the documentary evidence to be able to commit opposing witnesses’ testimony.

○ Lose Opportunity to Value Case Early+ Problem of ‘leaking bad facts’ over time.+ Need for accurate ‘Early Case Assessment’ to be able to properly value your case.

Dangers of bad or no timelining

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Why Timelining is Often Haphazardly Done


○ Attorneys Not Involved in Early Document Review+ Attorneys not involved in early document collection and review

○ Timeline Delegation+ Timelining left to junior associates or paralegals+ Delegation important and beneficial, but can lead to senior attorney ignorance of key facts

○ Inadequate Tools+ Often done in Word (WordPerfect) or on a legal pad+ Limited searching and no dynamic updating+ Limited or not document linking+ Leads to ‘always out-of-date’ timelines of limited usage

Reasons

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Good timelining software should be...


○ Easy to Use+ Software-based & intuitive

○ Shared & Accessible + Limited value if accessible/maintained by only one person

○ Online & Secure + Allow access anytime and from home, on road, etc.+ Fully encrypted and secure

○ Linked to Files/Evidence + Close tie-in with original documents, notes and coding

○ Allow Issue Coding, Filtering and Sorting+ Organize and view by key participants, issue, date, materiality, etc.

Key features

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Timelining Uses


○ Witness Prep and Cross+ Comprehensively prepare your witnesses+ Be better prepared to cross and discredit opposition testimony

○ Transcript Analysis + Structured fact extraction is more functional than depo summary+ Relate key transcript facts to other location in depo or other depos+ Relate also to supporting exhibits and other evidence

○ Case Evaluation & Settlement Negotiations + Close tie-in with original documents, notes and coding

Best Practices

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Timelining Uses


○ Client Meetings+ Help clients during case progression to see how strong their case is.

+ Assists in maintaining an accurate, ongoing case valuation.+ Helps witnesses see how their testimony fits into the bigger picture.

○ Motion Practice + Dispositive motions happen quickly; finding key evidence is challenging.+ Having key evidence previously identified, organized and linked to documents allows for quick effective response.

○ Trial Support + Keep timelines updated during testimony to allow for effective and fast cross and support. + Basis for Time-based trial graphics for juries and judges.

Best Practices (more)

Timelining Examples


ID Key Custodians/Case Participants/

Timelining Examples


Issue Creation

Issue Creation from + Causes of action

+Anticipate jury instructions

+ ‘Story Facts’

+For claims or defenses

Timelining Examples


Fact Creation & Editing

Timelining Examples


Open Documents from Timelines

○ Link in Timeline opens document in Doc Viewer

Timelining Examples


Find and Filter Facts & Issues

Timelining Examples


Timeline and Depo Prep

Timelining Examples


Assigning Docs to Deponents

Timelining Examples


Fast Motion Practice



Summary○ Timelining is More Important than Ever

+ Data is growing fast+ Facts get lost in the sea of data+ Attorneys are less involved in early review and production

○ Good Legal Timelining Software is Available + Structure by issue, case participants, materiality, etc.+ Linked to actual documents+ Online, assessable by legal workgroups and secure (encrypted)

○ Timelining can be Very Useful + Prepare and cross witnesses+ Case valuation and settlement discussions+ Client meetings+ Prepare and respond to summary motions+ Dynamic support during trial

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