I’ve been reading Malcolm Gladwell’s Blink. Actually, I’ve been listening to the book on CD during my long commutes between Santa Barbara, where I live, and Los Angeles, where I mostly work.

I really like Gladwell, because he seems to dwell in the world of irony. In Blink, he capitalizes on how we often make more accurate decisions quickly, based on less information, than we do if we take more time and are weighed down with more information.

In one part of the book, Gladwell focuses on spontaneity. He discusses the improvisational comedy group, “Mother,” which performed at the Upright Citizens Brigade Theatre in New York city. He points out that, while the actors acted spontaneously on stage, reacting to what other actors said without any prearranged script, they were only able to perform so seamlessly because they spent a great deal of time both practicing and conducting post-performance analysis of each show.

Gladwell likened the actors’ level of pre- and post-performance effort to the preparation an army or navy undergoes in advance of an actual battle. Soldiers train, practice and even participate in highly elaborate war games to prepare for what they might encounter on the battlefield. Gladwell refers to this preparation as “creating the conditions [necessary] for successful spontaneity.”

It occurred to me that creating the conditions necessary for successful spontaneity in the courtroom can be viewed the same way. In other words, while the improvisational actors do not work off of a script, and soldiers cannot anticipate exactly what they will encounter on the battlefield, it is through meticulous preparation in advance of the performance or battle that both the actors and the soldiers are able to successfully respond spontaneously to whatever is thrown their way.

That same level of preparation is necessary in advance of trial in order for the lawyer to successfully respond spontaneously to whatever is thrown his or her way at trial. While most of us will craft an outline for direct or cross-examination, it is only by being thoroughly prepared that we can effectively deal with surprises, such as an unexpected evidentiary ruling, a witness who forgets or gets confused, or a judge who cuts our examination short.

Legendary trial lawyer Edward Bennett Williams took this level of preparation a step further. His preparation included “devil’s advocate research” which prepared him for surprises his opponent might hurl at him during trial. In an interview published in the Winter, 1986 issue of Litigation, he said:

“I believe that a lawyer should always have the devil’s advocate. In my office, the devil’s advocate researches each of our cases as we prepare it, persistently finding the holes and forcing us to prepare specifically against each of them. Whenever I go into court, I have completely prepared both sides of the case.

Some trial lawyers do not want to do this. They say, ‘My opponent is skillful. He will find all the law on his side. I am going to prepare only my side.’ But I don’t like it that way, and I don’t think it can be done that way.

I believe a lawyer must prepare both sides so that he will not be surprised by whatever may be hurled at him. After he is prepared in this way, even if his opponent does come up with some detail that may have escaped him, it cannot be so far from the facts already known that it will completely surprise him or put him at a total disadvantage.” (Litigation, Vol. 12, No. 2 (Winter 1986), p. 37.)

So prepare for trial like you’re taking the stage or walking onto the battlefield.

I found a fantastic interview of trial legend Edward Bennett Williams from the Winter, 1986 issue of Litigation which I intend to read and re-read like the Bible.

Among the myriad of topics he discusses was the kind of “team” he works with at trial, which led to a discussion of trying “big document” cases. Many lawyers, even seasoned trial lawyers, tend to make the assumption that the bigger the issues to be decided by the jury, the more witnesses and paper–documents–are needed to prove a party’s case or defense. If an outsider was to simply look at the kind of discovery conducted in any big case, he or she would easily assume that, if the documents were worth seeking in costly discovery, they must have been germane and, ultimately, indispensable to winning.

Williams takes issue with this kind of thinking. He suggests that, in all but the most complex cases, lawyers tend to “multiply documents” unnecessarily. In the end, being unnecessarily document intensive does not further their clients’ interests or bring them closer to victory. Responding to interviewer Priscilla Anne Schwab, Williams says:

“Mr. Williams: I was brought up in a school of practice in which one person tried a case and tried it in toto. Even with some help, in the courtroom there was only one voice. And I like that.

Ms. Schwab: What about a complex case, say, an antitrust action with thousands of pages of documents, hundreds of witnesses. How can you handle that in a courtroom singlehandedly? With total control?

Mr. Williams: My impression of that so-called ‘big document’ case is that 95 percent of the documents are worthless. Just piles of paper to impress the jury. One of the great tragedies of litigation today is these paper wars. The whole profession gains nothing but disrepute when one of these big firms puts 21 lawyers on a case, and they start multiplying documents, paper times paper.

Now obviously in a few cases, the issues are so complex that there are, maybe, thousands of documents. But my experience has been that law firms multiply paper unnecessarily. They make litigation more prolific than necessary. They don’t have an instinct for the jugular. They don’t isolate the major issues of the case and simplify them into comprehensibility. And they engage in massive overkill in discovery.

Ms. Schwab: But there always seems to be a need for more discovery. You say yourself you must uncover every fact, however remotely relevant.

Mr. Williams: True, but discovery today is not used primarily to uncover facts. It’s used to delay, to obfuscate, and, too often, to replace real investigation.” Litigation, Vol. 12, No. 2, Winter 1986, p.30.

As an armchair expert on the topic of laziness, I wonder if the tendency to use excessive discovery rather than going “for the jugular,” as Williams puts it, stems from the fact that isolating “the major issues of the case and simplify[ing] them into comprehensibility” takes really hard work and focused thought. I suspect this is part of it. I suspect the other part is related to the fact that there is big money in putting armies of lawyers on cases and multiplying paper. Cynical me!

Whatever the cause, the end result brings clients no closer to victory. So, even if you feel the need to burn everything to the ground in discovery, remember when it comes time to try the case to isolate the major issues and “simplify them into comprehensibility.”

Sun Tsu wrote that “Every battle is won before it’s ever fought.”

This adage is never more true than in the world of civil and criminal litigation. I say this because our strategic decisions and actions before the jury is impaneled and opening statements begin often play a bigger role in the outcome of a case than any single event that occurs during the trial itself.

I have previously written about using pretrial motions in limine to exclude or limit evidence. In this post I want to talk about severance and bifurcation as a sound strategy under certain circumstances.

First, a brief explanation of the procedure. Severance or bifucation refers to an order by the judge, in cases involving multiple issues or claims, that separate trials will be held of the different issues. Severance in the Federal courts is governed by Rule 42 of the Federal Rule of Civil Procedure (FRCP). Rule 42(b) provides:

“(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.”

In my civil practice, defendants sometimes seek bifurcation–or separate trials–of the issues of liability and damages. The wisdom of this is apparent if we consider a personal injury case involving  unusually horrific damages. If the defendant is successful in obtaining bifurcation of liability from damages, it may be possible to exclude evidence of the horrific damages during the trial of the liability phase. After all, damages evidence is irrelevant to whether the defendant caused the plaintiff’s injuries. This can be huge if evidence of the plaintiff’s horrific damages will engender extreme sympathy which might cause the jury to look beyond the liability evidence and return a verdict fueled by emotion.

Another example could be if there is a unique affirmative defense that could be tried separately and, if successful, will greatly shorten the duration (and attendant costs) of the trial. If, for example, the defendant believes it has a strong statute of limitations defense which relies on the testimony of just a few witnesses, the judge can order this issue be tried first and separately from all other issues. If the defense prevails, it saves the court and the parties from the time and expense of trying the entire case only to reach the same outcome.

There are other situations in which separate trials could powerfully impact the outcome of the case. I recently read the account of one of Edward Bennett Williams’s famous trials, defending former U.S. Treasury Secretary John B. Connally. Connally was accused of accepting two $5,000 payments from a lobbyist for the Associated Milk Producers “as a thank-you for helping bring about higher price supports for milk after the Secretary of Agriculture had initially refused to raise them.” Emily Couric, The Trial Lawyers (St. Martin’s Press, 1988) at 331. In addition to accepting the “gratuities,” Connally was also charged with conspiring to obstruct justice and with perjury in connection with Connally’s conduct  during the government’s investigation of the payments.

Among the strategies employed by Williams was “a decision to narrow the courtroom debate. By focusing on a single issue, [he] . . . reasoned, he could more easily prove his client’s innocence.” Id. at 335. Williams thus moved and persuaded the court to sever the counts related to taking the $10,000 in gratuities from the counts relating to obstruction of justice and perjury. Williams argued that “if the government could indict you for perjury for denying the thing that they were accusing you of, in every case they could call the accused before the grand jury, and when he denied that he committed the offense, they just add perjury counts.” Id. at 338. The court agreed and granted the motion for severance.

The net effect was to preclude the prosecution from even telling the jury about the obstruction and perjury charges. When Williams ultimately won the trial of the gratuity counts against Connally, the “defeated” prosecution dismissed the remaining counts for obstruction of justice and perjury. Years later, the prosecutor, Frank Tuerkheimer, commented that:

“The most result-oriented thing Williams did in the Connally case . . . was the pretrial motion to sever the counts. It was a major tactical win with tremendous consequences for the outcome.” Id. at 338.

A motion to bifurcate is not appropriate in every case. In fact, it’s probably not appropriate in most cases. But it is a strategy to at least consider, particularly if a successful motion can create a huge tactical advantage such as it did for Williams and his client.