How asking “what’s next?” throughout the litigation will have you learning more about the case than your opponent, and help drive the litigation to conclusion.
By Ashby Jones, Family Lawyer
When she was a toddler, our extroverted daughter Maggie bounced from one event or interaction to the next. Every scoop of ice cream was met with a question about her next sweet snack. Maggie wanted to know who would read her a book, when she could have another play date, when would we call her grandparents on the telephone, could we go outside? What’s next?
My husband and I marveled at how this tiny being controlled the energy in our home. She was the source of the questions, and we the source of the answers. Bedtime was a reprieve from her laser focus on the day’s events, and we felt such relief when our tiny planner fell into a deep, quiet sleep.
Asking “What’s Next?” and Relentlessly Pursuing Resolution
Litigators have much to learn from a toddler. Though our clients watch legal thrillers on television and have a working vocabulary of the Law and Order method of litigation, they do not want us to try their cases. Not really. We like trying cases. We find our trials challenging. We welcome the opportunity to put our skills to use, and perhaps try the new technique we have learned in continuing education. We are energized. We are having fun. We must admit, though, that we are the only ones having fun.
Our clients, for the most part, yearn for resolution. Resolution can be best achieved by applying a relentless toddler’s approach to our litigation. We must constantly ask ourselves and our opposing counsel: “What’s next?”
Asking what’s next throughout the litigation accomplishes two goals:
- We are learning more about the case than our opponent; and
- We are driving the litigation to conclusion.
A command of the facts in court, in view of the opposing litigant, is an invaluable display of strength. But there are also a number of behind-the-scenes exchanges with opposing counsel that convey additional strength. Consider all of the conversations and correspondence we have with opposing counsel during a case. Knowing more about the case, no matter how inconsequential the detail, conveys strength to opposing counsel. Strength during litigation is a source of leverage. Leverage drives a case to conclusion.
Asking “What’s Next?”: Be the Attorney Behind the Wheel
When we receive communication from our opposing counsel, we should ask ourselves: What is the best course of action? Does the communication require a response? Is not responding a response all on its own? Does the communication raise an issue we must address in discovery? Asking what’s next with the communication? Filing the communication away without considering “what’s next” is a missed opportunity to learn more about the case and drive the litigation.
During written discovery, we are often inundated with materials from opposing counsel. It is imperative that we review the materials as possible gateways to additional information. While it is true discovery responses are meant to inform us, the responses may also serve as clues for what is not stated or revealed. Reviewing discovery responses with an eye towards what is missing leads to obtaining more information. Ask the follow-up questions, write the follow-up letter, and do what is necessary to maintain the focus on your role as recipient of information and the attorney behind the wheel.
Depositions also provide an opportunity for developing facts. Keeping a notepad with a post-deposition “To Do” list is most helpful. Has the witness identified another key player? Has the witness pointed to a gap in the information? Do you need to subpoena additional information from a provider or a financial institution? Do you need to supplement your written discovery? How does the deposition assist you in addressing what’s next?
Driving the Case to a Conclusion
The opposing litigants will notice that their energy is directed towards responding to you. The opposing litigants will also recognize that it is you driving the litigation to conclusion. Responding and reacting to you will leave your opposing litigant feeling exhausted by the litigation. Once you have your opposing litigant feeling as exhausted as the parents of a talkative toddler, your case is ripe for resolution.
Ashby Jones practices in Lexington, South Carolina. She is a Fellow in the American Academy of Matrimonial Lawyers, is Board Certified in the area of Family Law, and is a 2017 and 2018 Super Lawyers Selectee. www.kinardjones.com
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