How Do You Litigate?

According to Mirriam-Webster online, the phrase “carpet bomb” was first coined in 1944.  Their definition is

1 : to drop large numbers of bombs so as to cause uniform devastation over (a given area)

2 : to bombard repeatedly, widely, or excessively <carpet bomb the country with advertising>

Carpet bombing is indiscriminate. A process of dumping as large a volume as possible over that “given area” in hopes that in the process of covering the entire area you will be lucky enough to hit the actual target. It is a messy, inefficient process. It puts minimal faith or trust in skill and maximum faith in luck (lucky enough to hit the target). By comparison, a sniper spends significant time in preparation for her or his effort, and then fires a single shot. The sniper’s shot is focused, precise, and affects the target without destroying the entire “given area.”

There is a great diversity in the manner in which various attorneys try a case. Some present at trial with a planned, concise, relevant package of evidence. Their goal is to prove the point for which they came to trial. They are efficient, effective and persuasive. Their approach to litigation is focused like the sniper. They ask the five questions they need, and then tender the witness; no long explorations of the marginally relevant. 

On the other end of the continuum, there are attorneys that bring as much evidence to trial as possible, often with no apparent consideration of the concept of relevance. They swoop through the trial and deposit piles of paper, like a carpet bomber, hoping that somehow quantity will prevail over quality of evidence. In the words of one Florida Judge, “they throw it all against the wall and hope something somehow sticks.”

I recently heard a war story from an attorney. He related that on a decades old claim, he was recently litigating a reasonably simple medical authorization issue. At the conclusion of the treating physician’s deposition, the opposing counsel had the doctor authenticate his “entire file,” and then asked that the entire chart be attached to the deposition as an exhibit. 

Counsel relating the story asked why the six inches of paper would be relevant to the limited issue that would be addressed at trial. He explained to his opponent that there was much in the stack of documents that would not be admissible as evidence. The response was  essentially that counsel would nonetheless attach the entire chart and “let the judge sort it out.”

At a seminar I attended this month, one of the presenters opined that two detrimental technological developments of the twentieth Century were the air conditioner and the Xerox machine. He explained that air conditioning provides the comfort to allow attorneys to spend hours in depositions, when the heat (here in the south anyway) might otherwise lead to greater focus, asking only the relevant questions, and more expeditious conclusions. The Xerox machine, he posited, allowed attorneys to ignore the analysis of what is really needed or really relevant, and instead to just “copy the whole file.”

I hope that we will not look back and feel that electronic filing is  a similar technological “enabler.” We see huge volumes of documents filed with the OJCC using the electronic filings system, e-JCC. This system makes it much easier and cheaper to send documents to the OJCC. With the addition of the e-service component in 2013, this system makes it much easier and cheaper to send documents to opposing parties and counsel. That this facilitates sending and filing documents should not encourage counsel or parties to indiscriminately file documents without regard to relevance, and focus.

A side note, which should be obvious, e-filing or filing a document with the OJCC does not mean that the document will be admissible as evidence. Several times in recent months I have heard judges recount arguments (in response to admissibility objections) that were essentially “judge it is on the docket” (or as some are fond of saying “it’s on DOAH) so "it is in evidence already." These lawyers have apparently forgotten their law school training in authenticity, hearsay, relevance, and more. Just because a document is filed, "in the docket," does not make it admissible.

To be effective, trial counsel must understand the issues which the adjudicator will be asked to resolve. Counsel must then develop and prepare evidence that tends to prove or disprove the material facts (that is “relevance” defined). That evidence should then be carefully and thoughtfully prepared for submission to the Judge.

Ask yourself, is there any relevance in the nurse’s notes from the injured workers’ hospitalization, four years prior to the work injury, faithfully documenting body temperature and other vital signs every four hours during that hospitalization? Does the injured workers’ vital signs four years before the work accident tend to prove or disprove whether the worker was or was not injured, whether that injury is or is not related to work, whether the injured worker does or does not need the currently claimed treatment?

Logically, there is no reason to put this irrelevant data into the record. As logically, there is no reason to submit repetitious copies of the same medical records. I have seen attorneys attach those six-inch stacks of medical records to the deposition of each physician to testify in a case, and then file a separate Motion to Admit with another identical set of those records. It is frustrating to the process when the six-inch stack includes correspondence, subpoenas, and old irrelevant treatment records. It is even more frustrating when multiple iterations of that six-inch stack are included. I have seen trial records that were thirty inches tall and taller.  

Counsel should remember that their goal is to prove or disprove material facts at trial. Your goal is to guide the adjudicator as precisely as possible to the target. In this regard, the efficiency of the sniper is a better goal than the indiscriminate carpet bombing methodology that we too often see. 

If this practical reason for being precise with your evidence is unconvincing, there is a rule specifically on the topic. Rule 60Q-6.121(4) cautions that “voluminous or cumbersome exhibits shall not be received in evidence unless their use is unavoidable. Not “inconvenient.” The Rule does not allow voluminous exhibits if they are “easier,” “quicker,” or less work for the attorney. Their use is acceptable only if “unavoidable.”

Are you an efficient, careful and focused litigator, or a carpet bomber? Know that the focused, targeted approach will be less distracting, more convincing, more efficient, and more effective. Take the time to prepare your case for trial, to know your issues, to focus your evidence, and you will enhance your chance of prevailing.