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5 Trial Tips from the Courtroom Ready Lawyers at AZA
September 5, 2011
1. Trade secret cases are on the rise and the first moves count
Litigation has become a part of a business competitor’s arsenal. As employees move around more frequently, many of them are subject to covenants not to compete as well as confidentiality agreements, and claims of trade secret misappropriation are not uncommon. These cases can vary tremendously from other types of litigation. Most trade secret and unfair competition litigation is the subject of a temporary restraining order and temporary injunction. This means early activity in the case, usually in the first two weeks, is both time-consuming and critical. If a temporary injunction is lost, then the status quo remains in place until the time of trial. Often the loser simply cannot afford to wait that long.
2. The reality of mediation is that you shouldn’t seek middle ground
The mediator’s job is not to determine who should win the case, and then ensure that the same party “wins” the mediation. A mediator’s job is to settle the case. To accomplish this, the mediator will try to identify the weaker party. Mediators are not especially concerned with reaching a “fair” settlement; only reaching a settlement. They will see who is more willing to concede points, and who gives up their position more quickly. At a certain point in all mediations, it becomes a numbers game, and the mediator will push to see who will give up bigger numbers faster. For this reason, “let’s just cut to the chase” almost always backfires on the party taking this approach. Whether the case is simple or complex, involving sophisticated parties on both sides, the party that comes out ahead is the one that negotiates through attrition by wearing down the other side throughout the day. Sometimes the mediator will make a proposal at the end of the day for the parties to meet in the middle. And you do not want the middle to be a place that you will regret.
3. Jurors are not persuaded by opening statements
One trial “truth” that is more fiction than fact is that jurors decide who should win after opening statements. That may have been true years ago, before jurors were inundated with “information” from every direction. Today, many jurors are skeptical, especially when it comes to lawyers. They are not going to buy it just because you say it. Be cautious in your opening statement that you don’t over-promise, only to end up under-delivering during trial. Exaggerated opening statements set you up to lose credibility, which is your single greatest asset in any trial. Promise what you are certain you can prove. Consider holding some things back so that you can gain momentum throughout the trial. You want your case to build on your opening, not struggle to live up to it.
4. Take depositions early to get to a quicker bottom line
Nothing moves a case along (or establishes its true value) like taking depositions. Most lawyers make the mistake of waiting too long to start depositions. Waiting, however, accomplishes only two things: it escalates legal fees and gives the other side time to develop their story. Take some depositions early, and even before filing suit (yes, before filing suit), if it makes tactical sense. You can catch your opponent off-guard, and obtain key admissions before your opponent has time to develop his case narrative. Most large cases have many depositions, so taking a few very early, and the rest after other discovery, will offer more benefits than liabilities.
5. Arbitration isn’t always a cost cutter
Arbitration is not like going through our court system. First, the arbitrator acts as both the judge and the jury, and the grounds for overturning an arbitrator’s decision are extremely narrow. For these reasons, the selection of the arbitrator is perhaps the most critical decision in the process. Arbitration can also be less likely to result in the dismissal of claims, favoring a full hearing instead. Also, because the arbitrator acts as both the judge and the jury, he or she will view evidence that would not be admissible to a jury. Finally, without an impending jury trial, a powerful motivator for settlement is missing. Arbitration does not always streamline the case for resolution as many litigants believe it will, and a party must be prepared for the possibility that, in the end, arbitration will be more expensive, not less.