This is a special post from a friend and retired lawyer with insights, opinions, and tips for preparing a case. If you are unsatifisfied with your lawyer or you are in trouble with the law, contact Stephen G. Rodriguez and Associates for help.
When a client comes to us with a problem, we tend to look at the facts are client brings to us in terms of the legal issues that they present. This is how we were trained, and mastering that skill got us through the bar exam. But, my friends, that's not the way we try a case. Trying a case means that we have to get the facts before a jury or court in order to argue at some point in the case about how the law is to be applied to those facts. Identifying and organizing the facts of a case is perhaps the most important skill set a litigator must have if he is to be an effective trial advocate.
I am retired from law practice now, but during my career as a litigator, I focused my attention on developing ways using my personal computer to identify relevant facts, and what I needed to do to get those facts into evidence, and to counter any objection is that I might encounter. The organizing principle is creating a database that lists all of the facts I will need to bring to the jury or the court as the case may be. Large law firms do this as a matter of routine, and use of computerized databases is labor intensive and expensive, and solo practitioners like me are always at a disadvantage. The techniques that I describe below, allowed me to use computers for more than 20 years, as my principal organizing tool for trial preparation. The technique I'm about to demonstrate is useful in both civil and criminal trials.
The first thing we do is to create a matrix that identifies legally significant facts and the way or ways in which we can get those facts into evidence. As we know facts come from various sources, documents, witness statements, from our clients, from public records, and elsewhere. Making lists of the relevant facts as often is the easy part of the job. It's linking those facts with specific documents, witness statements, and other sources of evidence that that makes the job more difficult or where errors where gaps in the record can put us at seriousness advantage.
In the past, I use what are called flat file databases to create my matrix. These are relatively simple, are searchable, and can display selected search results as views to establish particular facts. Next, I would begin to organize the facts that I knew at the outset, assigning each significant fact a number. Each number would be the beginning of a series of two perhaps three digits so that the series would look as follows: 100, 200, 300, 400, 500, and so on. If a cardinal fact lies within the 100 series range subsidiary facts related to that cardinal fact might be numbered 110, 120, 130, 140, and so forth. The idea is that we fill in facts as we discover them during our investigation. What we want is the ability to cross-index each significant fact with its supporting document, witness statement, deposition testimony, or public record that will establish that fact in the court or tribunal in which we are trying the case.
In any particular case, there may be several dozen records up to several thousand or more. Notice that I place the Fact and its corresponding number at the top of the matrix. Legal issues are at this point entirely subordinate to establishing facts; in many cases, legal issues are not even assigned to a matrix until the case is close to trial, and then primarily to sift the facts for those that are legally relevant to the case; however, and this is a big exception, evidentiary requirements such as proving chain of custody, document authentication, foundation testimony, or expert witness testimony may be required, and the record matrix is designed to identify those requirements, and how they will be met. Beyond that, we proceed in this manner so that our focus is on establishing the facts into evidence, and saving legal analysis for argument later.
The hypothetical record showing in Figure 1 is similar to a case that I handled it a federal criminal appeal. My client had been convicted of conspiracy to commit money laundering and the principal evidence against him consisted of business records recording wire transfers of money from Providence, Rhode Island, to a location in Texas. Western Union's records of these transactions consisted of the name of the sender and the name of the intended receiver, the receiver's name and address, and other pertinent data that would enable Western Union's employees in Texas to verify that the person named in the record was the intended recipient. No such information identifying the sender was including those records, nor was it required at that time. Some of Western Union's record slips at handwritten signatures purporting to be that of my client, but there was no expert testimony offered at trial that the signatures on the send slips were consistent with my client's handwriting. In short, the jury was allowed to speculate as to whether the signatures on the send slips were actually those of my client, and that was a principal basis for his appeal.
| Figure 1 |
| Fact | Signature on Wire Transfer record (300 series) |
| Document Number | 1005 |
| Document Type | Business record |
| Document Name | Wire Transfer Send Slip |
| Date | 20070728 - July 28, 2007 |
| Author | Western Union |
| Recipient | Robinson |
| Distribution List | NA |
| Names in Document | Smith; Jones |
| Summary | Records wire transfer of $1000 from Robinson to Smith |
| Notes | · Jones is wire transfer clerk
· Smith's personal information included and required by company policy.
· Robinson 's personal information not included, and not required by company policy.
· Handwritten signature: Ben Robinson
· Document is a business record proving a signature, but not directly linking Robinson to this document
|
| Issue Code | 201, 301 |
| -------------------------- | |
| Evidentiary Purpose | Absence of personal information showing that Robinson ’s signature was authentic |
| Foundation testimony | Custodian of Records must testify that (1) company records are accurately maintained; and (2) the wire transfer clerk has a business duty to record personal identification information to group recipients like Smith |
| Authentication | Custodian of Records may testify as to the authenticity of a business record and Chain of Custody, but not to the truthfulness or accuracy of its contents |
| Rebuttal Testimony | Wire transfer clerk had no business duty to record personal information regarding senders like Robinson |
| Privilege | No |
| Basis of Admission | Business Records |
| Objection | Hearsay; fails to conform to business records requirements No expert testimony or other evidence available to link handwritten signature to author, Robinson |
| Federal Evidence Rule | 803 (6), (7) |
This is one of many records that a lawyer will make in preparing his case for trial. Here we have a fact, the existence of a business record that may be used for one evidentiary purpose. But this fact is rebutted by another fact, albeit a negative fact, which is the absence of the necessary quality required to make that fact legally significant.
If there is a principle that I would apply in identifying factual groupings, it would be to keep the process as simple as possible. Even complex factual situations should be simplified to the greatest extent possible. Each fact must tell its own story and point in the direction of the total narrative that the lawyer wants to create in the jury's mind.
Experience suggests the following data categories to litigation databases: (i) document number; (ii) document type; (iii) document name or title; (iv) date; (v) author; (vi) recipient; (vii) distribution list; (viii) names in document; (ix) summary; (x) notes; and (xi) issue codes. These classifications are self-explanatory, but one or more are often overlooked because they record essentially background information that is overshadowed by issues-oriented information contained within the data. Name, date, author, recipient, distribution and names in document allow cross reference searches to be conducted on unique identifiers for which subsets of other data can be extracted. The summary block should contain a short, concise statements about document contents while notes provide a place for annotations (I distinguish between describing document contents and the evidentiary use of the document or statement to prove a factor propositioned later at trial. See below.) Issue coding is reserved for last because that will be added when the data is complete and trial reparation is under way. Other categories may be added as needed.
As part of my databases I also include additional fields specifically keyed to trial preparation: (i) evidentiary purpose; (ii) foundation testimony; (iii) authentication/chain of custody; (iv) privilege; (v) basis of admission into evidence; (vi) potential objections; (vii) Federal Rule of Evidence; (viii) other authorities (statutes, case law, etc.). The idea behind the evidentiary data fields is to create evidentiary checklists and to anticipate and counter potential objections to introducing that evidence at trial.
As the case develops, and more facts are developed, these new facts need to be accounted for and linked to other facts that we already know about. The database will allow new facts to be grouped with known facts so that nothing will be missed either during trial reparation or trial. When the database is queried to produce views of specific facts, paper and digital copies of those views may be saved. And earlier versions discarded.
As the database is created, individual records can be hyperlinked to copies of witness statements, and extracts taken from deposition testimony, copies of documents, lines of inquiry and anticipated testimony, and other pretrial memoranda that litigators may prepare in anticipation of trial. It is even possible to access this data at trial, from a notebook computer, and I have done so in the past.
