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Turning Chronologies Into Fact Factories
By Greg Krehel
Many case chronologies serve strictly as fact warehouses. They're only used to store the finished product of case analysis: facts that have solid sources. That's a shame. To get the full benefit of a chronology, it should be used as a fact factory, not as a warehouse. Sure, factories include storerooms for the finished product. But the factory's true purpose is production.
Turn chronologies into fact factories by following the simple brainstorming process outlined below. Your chronologies will become case investigation aids that focus the discovery process and have a dramatic impact on motion practice, trial preparation and case outcome.
Fact Factory Overview
How does a factory work? Procure raw materials. Perform a series of processes that transform these supplies into finished products. Monitor the quality and quantity of the goods being produced. Reject the duds. Ship the finished products so they can be put to use.
How can the factory metaphor be applied to a case chronology? Gather into the chronology the raw materials of hearsay, rumors and even guesses developed by brainstorming. Move these prospective facts through a process where potential sources are first identified and then investigated to see if they can be turned into solid ones. Polish and inspect the results. Discard facts that still lack court-worthy sources. Finally, put the completed facts to work in Motions for Summary Judgment, Pretrial Motions and at trial itself.
Before expanding on the fact factory concept, let's address this common concern: Isn't it risky to mix facts with solid sources and prospective facts that have no source together in a single chronology? Won't finished facts be lost among the work in progress? There's no need to worry. Anytime you want a list of only those facts that have solid sources, a mouse click can filter the chronology down to that subset for viewing and reporting purposes.
Here are the details on implementing the fact factory brainstorming process and some simple tactics for maximizing its effectiveness . . .
Step One: Compile Prospective Facts
The first stage of the fact development process is devoted to generating the maximum number of prospective facts. Again, prospective facts are those for which court-acceptable sources have yet to be developed -- hearsay, rumors, and even the results of brainstorming guesses about what facts might be turned up during discovery. This is the grist we'll attempt to mill into final product that can be used at trial.
Clients and other friendly witnesses can supply plenty of raw material. Embrace the hearsay and rumors clients provide regarding case events and players. And the job's not done when clients have provided the good news. Be sure they also furnish details regarding potential problems and negative rumors.
Want to increase the quantity and quality of prospective facts your clients provide? Ask them to work up a list of important case facts/events and a separate list of case-related rumors prior to meeting with you to discuss the case. It helps to have clients get things down on paper and the task is sure to get clients' mental juices flowing in advance of your meeting. Use the work product your clients supply to prompt questioning during the intake interview.
A second way to develop prospective facts is to tap your experience with similar cases. What were the key facts in those matters? Is it possible similar ones could be turned up in the case at hand? If you make it standard practice to develop fact chronologies, you'll be able to pull the chrons from prior analogous matters and use them to stoke your thinking.
Brainstorming to create prospective facts can be challenging work. How can it be simplified? You've probably heard the joke that runs, "How do you eat an elephant? One bite at a time." Lawsuits can be elephants. Make them easier to consume by thinking about one issue or legal claim at a time. Your narrowed focus makes it possible to think more deeply and creatively. Brainstorm issue by issue and you'll produce higher quality prospective facts and a larger set of prospective facts that covers all case issues thoroughly.
Take the hearsay, rumors and brainstorming ideas you develop and add them to your chronology as facts. Make it easy to distinguish these facts from ones with solid sources by including a "Status" column in the chronology and using it to note which facts are prospective. Marking facts as prospective also makes it easy to filter the chronology so it displays only prospective facts or only those facts that have court-worthy sources. The pick list of choices available for the Status column should include values of Prospective, Undisputed, Disputed by Us, Disputed by the Opposition and/or other values appropriate given the nature of your case. When a court-acceptable source is found for a prospective fact, its status value can be upgraded to undisputed or disputed by a particular party.
Step Two: Assemble Potential Sources
Now it's time to develop as many potential sources as possible for each prospective fact. Where are these ideas going to come from? The same places as the prospective facts--your clients and your brain.
Review each prospective fact in the chronology and brainstorm on potential sources. Ask each team member to do likewise. Add a "Potential Sources" column to the chronology and use it to capture details about the persons and documents that may prove to be sources for each prospective fact.
Supply clients with a printed fact chronology that includes an empty column where they can jot down potential source ideas. Meet with them to review the results of their efforts and update the master chronology's Potential Sources column with client suggestions that pass muster.
When you finish this stage in the fact factory process, some prospective facts will have many potential sources and other prospective facts will have few, if any. These results should provide an initial indication of which prospective facts are likely to be completed and which will be rejects.
Step Three: Convert Potential Sources Into Solid Ones
Assign team members to investigate the potential sources that have been identified. The chronology containing prospective facts and their potential sources can aid these efforts in a number of ways.
First and foremost, your chronology teaches the team what to search for during discovery. Scavenger hunts are much easier when there's a list of the items you're trying to find. The list of prospective facts has the secondary benefit of helping the team understand the general nature of the facts for which you're looking. This increases the odds they'll turn up facts similar to the prospective ones even if they don't find the exact facts developed by brainstorming.
Here are some other ways a chronology containing prospective facts can be used to drive the discovery process:
When a court-acceptable source is developed for a fact originally entered as prospective, update the information about this fact in the chronology. Enter details in the chronology's Sources column. Flip the value of the fact's Status cell from Prospective to Undisputed or whatever other value is appropriate. If you have an electronic version of the deposition or document from which the fact has been sourced, consider linking the fact in the chronology to the corresponding passage in the source material. Once this link has been made, a mouse click will open the source document and select the original passage so anyone reviewing the chronology can see the fact in its original context.
- Extract key words and phrases from prospective facts and use them as the basis of searches across the text of electronic documents and OCRed paper documents.
- When a deposition approaches, filter the chronology down to those facts that list the deponent as a potential source. Use this information to generate deposition questions intended to elicit the facts in response.
- As your confidence about certain facts grows, consider filing a Rule 36 Request for Admission based on them.
Step Four: Polish & Inspect
Scrutinize each fact and tighten the language that's used to express it. Make sure the fact is stated as clearly and concisely as possible. If you haven't done so already, link each fact to the issue or issues on which it bears so it's easy to group facts by issue for use in MSJs, to help develop trial themes, and so on.
When the discovery cut-off date approaches, filter the chronology down to those facts that remain prospective -- the ones for which solid sources have not yet been developed. Decide if any last-ditch effort should be made to find a source or sources for them. Some prospective facts are going to end up as rejects. When you've determined that's the case for a particular fact, just delete it from the chronology.
Step Five: Monitor Results
Our chronology now provides a single centralized repository of all case facts in all states of development. This makes it easy to monitor the quality and quantity of what we're producing and the status of the discovery process.
We can use the chronology to answer these and many other questions: What's the quality of the facts we've finished? What's the quality of the prospective facts being worked up? How's our progress at working up the facts of this case? How are things going relative to the success we've had in other matters?
In addition to giving us a means to evaluate our case-specific progress, the chronology provides a way to teach new team members the case analysis process and to assess the effectiveness of our lessons. It's easy to filter the chronology so it only displays those facts worked on by new team members. Use this view to check their work product and to provide material for feedback.
Step Six: Put Your Facts to Work in MSJs and Elsewhere
The final step in the fact factory process is to put your chronology to practical use. We're not producing these facts just to have them sit on the shelf!
A particularly important example of the many ways a chronology can be put to work relates to Motions for Summary Judgment. A detailed chronology makes it easy to evaluate when a MSJ is possible and appropriate. It should also help identify opportunities for partial summary judgment on divisible issues.
A good chronology also makes its far easier to prepare a MSJ or to respond to one. If you're filing a MSJ, a couple of mouse clicks can ship the undisputed facts related to one or more case issues from the chronology to your word processor for inclusion in the MSJ or a Separate Statement of Material Facts. If you're opposing a MSJ, it's also just two clicks to send the disputed facts related to each case issue to a word-processing document. There's no need to burn the midnight oil when drafting MSJs. The facts are literally at your fingertips.
I hope you enjoyed the factory analogy that underpins this article. More importantly, I hope this article has caused you to think anew about the power a chronology can bring to the case analysis process. If you're not already using chronologies in the proactive way outlined above, give it a try on your next case. I believe you'll very pleased with the results.
I'd appreciate your feedback on these ideas. Please write me at firstname.lastname@example.org.
About the Author
Greg Krehel is a co-founder of CaseSoft (www.casesoft.com), the developer of five software tools for trial teams. Greg has written ten other case analysis white papers that you may find of interest, e.g., “Chronology Best Practices” and “Creating and Using Issue Analysis Memos.” PDF versions of these articles are available at no charge by visiting www.casesoft.com/articles.shtml. Trial versions of CaseSoft's CaseMap case analysis software and TimeMap timeline graphing software can also be downloaded from www.casesoft.com.