Motions first, depositions second

In my business, litigation, there is a typical order of events. A lawsuit is filed, then discovery is taken, then motions are filed and ruled upon, and then there is a trial. Litigators who haven’t thought carefully about their business may fall into the error of compartmentalizing these steps too much. Have you ever gone to write a crucial motion, only to discover that the testimony or documentary evidence that you need to put forward under the applicable law was never obtained, or came in the wrong way without being fixed? If so, you should have realized that you may have done things in the wrong order.

Just as you should write your closing argument before you draft any motions, you should also write—or at least rough out in detail—your crucial motions before you take any discovery. That will force you to learn precisely which legal standards apply, and thus what evidence you need to get or to overcome. It will make you notice gaps in the evidence—both formal gaps, i.e., missing essential elements, and rhetorical ones, i.e., possibly jarring holes in what could otherwise be a nice coherent story about the facts.

Now that you know what you will do with it, go get your evidence. Your discovery requests and deposition outlines are now half-done because of your preparation work on your motions, and your discovery efforts will be directly on target.

I’ve heard lawyers say that they don’t want to be too clear in discovery (written and depositions) because it will tip off the other side. That’s like suggesting that you not aim the artillery too precisely because the enemy will figure out what you’re shooting at. Aim straight from the start.

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