April 20, 2016 – What do you do when you’re lost in a mire of discovery, and need to get organized for your trial or summary judgment motion? How do you wade through it all and still be prepared in time?
Start with the elements, advises Lester Pines, a partner with Cullen Weston Pines & Bach LLP, Madison, experienced in civil and criminal trial work as well as civil appeals.
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“Focus your discovery specifically on getting proof on those elements, and not discovery that is so broad and so encompassing that you lose sight of what you need to prove or defeat,” said Pines, who presented “Litigation Tips” at the State Bar of Wisconsin’s Health, Labor and Employment Law Institute (HLE) last summer. (Mark your calendar for the 2016 HLE Institute, Aug. 18-19 in Wisconsin Dells).
Also, ensure that affidavits include all necessary information and are not simply a conclusory statement. “Too many times lawyers jump ahead to that statement without laying a foundation,” Pines said.
For instance, the affidavit should include the basic facts about the witness – who the witness is and the basis on which the witness asserts knowing the facts that he or she will testify about in court, Pines said.
Likewise, witness depositions should target the elements of the case and what you need to get from the witness to prove the elements or defend against them.
“The deposition, if you’re taking it, has to focus on getting admissions from the witness that support your case,” Pines said.
Most importantly, listen closely when it’s time for opposing counsel to question the witness. “You want to pay very, very close attention to the questions being asked, so you can understand where your opponent is going and what your opponent’s strategy is,” Pines said.
Lastly, study Wis. Stat section 908.03, Wisconsin’s hearsay exceptions. Know what is not hearsay.
“The first part of that statute defines what is not hearsay,” Pines said. “Those are very important sources of admissions that can be used against an opposing party.
“It’s very important to look at the definition of what isn’t hearsay in order to structure your discovery because they are the strongest statements you can use.”