Lisa Chalidze, Esq.
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you, I practice in a document-intensive area of law (lender liability
and insurance bad faith) where defense tactics routinely include burying
plaintiff's counsel in paper.
In one case, for example, we fought over a year for a court order threatening
the defendant with sanctions of a thousand dollars per day, per document,
for every document the defendant continued to withhold in violation of
previous production orders. That order triggered a barrage of boxes delivered
to my doorstep every day for a month. I came to know the lightening-bolt
insignia of the messenger service very well; and at the end of a month
we had over one hundred thousand pages of documents in our office.
we had less than one hundred pages of exhibits.
The key to
effective use of documents at trial is to have as close to none as you
possibly can. Leave it to the other side to wheel in stacks of boxes.
You breeze in with a single briefcase, and your audience - be it jury,
judge, or hearing officer - will breathe a sigh of relief when defense
counsel sits down and you stand up. But how to carry out the winnowing
process required to go from one hundred thousand pages to one hundred
I use a toy box.
is a story to be told. Unlike most stories, however, it is not told by
a single narrator.
As attorneys, we must tell the story through the words and voices of a
number of different people. Some speak from the witness box; others speak
through documents; many do both. Most resent us no end for making them
testify in the first place. The trick is to orchestrate these many voices
so that they tell a single story fluently and simply, without duplication
the better analogy might be that each case is not the telling of a story,
but the singing of a ballad, with trial counsel as the conductor. Before
you begin to put together your trial or hearing presentation, think through
your entire case, going back to the basics.
have you alleged in your complaint and, within each count or theory
of liability alleged, what precise facts must you prove to establish
every element of that count?
person or document is the source of proof for each one of those facts?
order do you want to present those facts in to sing the most beguiling
song? Chronological? Topical?
singer (witness or document) do you want to use to express each of those
how do you most effectively use your documents, in concert with your
witnesses, to orchestrate the ballad that must emerge?
It is this
last point that I want to talk to you about, and that is where the toy
box comes in.
outset of a case, you should keep firmly in mind each individual fact
you need to establish to prove each element of your case, and then like
a bloodhound sniff out those facts in the discovery process.
Step one should be getting your hands on every piece of paper that relates
in any way, shape or form to your claim or to the anticipated defenses.
As you go through these documents, ask yourself two questions:
this piece of paper I am now looking at prove one of those facts; and
2) even if this piece of paper doesn't prove a fact I need proven, will
it help me corner a witness into testifying to one of those facts I
If the answer
to both those questions is no, file that document and don't look it at
again. If the answer to either of those questions is yes, put it in the
toy box, or toy file, to play with in the future.
each witness - your singers - who knows some piece of the story you need
to tell, and correlate your toys to particular witnesses.
For example, suppose you want to demonstrate that the school acted in
negligence or bad faith. You have a good (or perhaps, very bad) outside
psychological evaluation in the file that should have been taken into
account by the school psychologist but wasn't. Target the school psychologist
for a deposition using the outside evaluation as a toy to get her to admit
both that it should have been taken into account but wasn't (negligence);
and that she knew it was in the school file but chose to disregard it
I will give
you an example from actual testimony in one of my cases involving a bank,
in which the bank brought a fraudulent conveyance suit against my client,
the wife of a bank officer, in an effort to attach the stock that she
had purchased from her husband.
One element the bank had to prove in a fraudulent conveyance action was
that my client, Mrs. Lussier, had not paid a fair price for the stock.
One toy in the toy box was the bank president's written, sworn affirmation
that he sued Mrs. Lussier for fraud after "conducting an investigation
into the stock-transfer records of the bank" -- an impressive-sounding
recital. Another toy in the toy box was an exemplar bank stock-transfer
record. Happily for us, this contained no information whatsoever on price
paid in a given transfer but merely recorded the seller, buyer, number
of shares and date of transfer.
Thus when cross-examined on his own written affirmation as to exactly
what his investigation into the stock-transfer records of the bank actually
involved, the bank president testified:
you had also indicated that prior to swearing under oath in the federal
court case that Mrs. Lussier had acted fraudulently, you searched the
bank records; is that right?
A. I checked
the bank's stock records, yes.
exactly do you mean by stock records, what exactly did you look at before
making that affirmation under oath?
A. I looked
at stock transfer records, and I was primarily looking at dates of transfer.
information is contained in these stock records as to how much money
is paid for stocks in a given transfer?
toy was used to pin the president down to the scope of his "investigation
into the records of the bank" as looking only where one would not
expect to find any information about the price paid for the stock - i.e.,
negligence. On further cross-examination on the same toy - his written
affirmation - we were also able to get at the bank's subjective state
of mind in suing Mrs. Lussier, wife of the former bank officer, for fraud:
you had testified earlier that one component of your thinking as to
why the stock transfers were fraudulent is because you thought you had
evidence that Mr. Lussier had engaged in conduct that was illegal and
improper; is that right?
you think you had any evidence indicting that Mrs. Lussier had engaged
in conduct that was illegal or improper?
how we go beyond negligence and get to bad faith.
have developed your toy box with written discovery, you should continually
remove toys from it as you go through the litigation. That is, you should
take out any documents that you may have put in the box originally that,
on further contemplation and in the light of later discovery, are not
really on target after all.
There is nothing wrong with erring on the side of over-inclusiveness when
you put toys in the toy box; but you must later remove those that are
only marginally fun to play with.
you depose another witness, play with the toys - whichever toys compromise
that particular witness. In this way, you build stronger testimony as
you go, and you can also easily discard those documents that have unexpectedly
proven to be no fun once you hear a witness defuse what you thought was
a dynamite written statement. By the time you get to trial, your toy file
- which originally was selected from a large universe of documents - should
be downright skinny, and contain nothing but lethal documents.
Now for the
really special toys.
the ones I mean: those precious few that are so great they just scream
negligence or bad faith all on their own.
Don't just play with those toys at trial. Enlarge them! Blow them up!
Put them on an overhead projector! Force a witness from the other side
to read them aloud into the record! Sing, sing, sing!
Sometimes I opt for enlargements of good toys on poster boards placed
on an easel in front of the jury or judge, because then you can splash
lots of color around. Often I prefer to use the overhead projector because
you can (oops) leave it glaring on the screen even after you have moved
on to another topic or the witness has stepped down.
For you tekkies, there is always projection from a laptop computer if
the courtroom is equipped with individual screens for the jurors. Whatever
has visual punch - use it to play with your toys.
you'll have much more fun at trial than your opponent.
is a trial attorney whose offices are located in Castleton, Vermont. She
concentrates her practice on civil litigation in lender liability and
insurance bad faith claims action. Before limiting her practice to lender
liability and insurance bad faith claims actions, her civil practice in
litigation involved professional malpractice actions, products and premises
liability, and auto accidents.
Some of Lisa's published work includes her Policy Interpretation: Recent
Developments In Vermont, Vermont Bar Journal, 1993; Disability
Discrimination Based on Dyslexia in Employment Actions Under the Americans
with Disabilities Act, 74 AmJur Trials, 255 (2000; Defending the
Legal Malpractice Claim Arising from Representation of Small Business,
62 AmJur Trials, 395 (19970; Parent Corporation's Liability for Lease
of Subsidiary, 79 AmJur Trials, 1 (2001); and Proving Insurance
Coverage for Legal Malpractice Under Errors and Ommissions Liability Policy,
47 POF 3d 317 (1998) (co-authored with Brice Palmer).
Contact Lisa Chalidze
Copyright © 1999-2014, Peter W.
D. Wright and Pamela Darr Wright.
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