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Litigation Strategy: a Secret Key to Victory

In litigation, attorneys battle for the victory of their clients. In this explainer, legendary trial attorney John Quinn shares his litigation strategy that "more than any other, leads to victory." John B. Quinn is a trial attorney and the founder of Quinn Emanuel Urquhart & Sullivan LLP – a global litigation law firm. For John Quinn's tips on how to identify the key issues in a litigation, click here:    • Litigation Strategies: John Quinn Explains...   ► http://www.talksonlaw.com for more legal explainers and interviews with the titans of law. ► Patreon: TalksOnLaw is on Patreon! You can support us directly by signing up at:   / talksonlaw   ► Facebook:   / talksonlaw   ► Instagram:   / talksonlaw   ► Twitter:   / talksonlaw   TRANSCRIPT Our subject is the key to winning in litigation. The side that figures out first what will ultimately matter in a litigation, wins. Now, why is this so important and how do you do it? If you have figured out what matters first, you often get evidence that you otherwise might not get and you might get answers in depositions that you otherwise wouldn’t get. Our experience is that if a witness knows that a truthful answer in a deposition will materially hurt their case, that can be really hard to get. That truthful answer, unqualified answer, can be very difficult to get. Documents may be easier to get, with fewer objections and without motions to compel. Let me give you an example of a recent case we had. In most jurisdictions, the statute of limitations begins to run when the claimant is on notice that they have a claim. And we recently had a case where we were able to take discovery and get admissions from the other side that they were aware of facts that would have supported a claim that gave them notice that they had a claim outside the statute of limitations period. That then became the basis for a motion for summary judgment, which was successful. If the other side had realized that, I’m not sure we would not have gotten that evidence. The principle also has an application on the defensive side. If you are aware of what ultimately matters, you are able to prepare your witnesses in order to avoid mine fields and avoid unwittingly giving up damaging information. The approach I’m talking about here isn't the way that litigation is usually conducted. Lawyers, of course, by their nature tend to be very cautious and very obsessive. They are reluctant to rule out any issue which may seem like it may be a potential path to victory, especially at the beginning of the case. So the tendency from the beginning is to cover the waterfront and turn over every stone. Now, to be sure, there is value in this approach, but it comes at a cost. First, the cost and expense obviously. But second, proceeding this way in this methodical fashion, you will probably give up the opportunity to catch the other side off guard. If you are able to figure out what ultimately matter in the case first, you have the opportunity to exploit this advantage by aggressively seizing the initiative in discovery from the very beginning. Now, this approach also goes against the grain. What we are suggesting is that clients are not always well served by a choreographed approach. Sometimes, the early deposition even without documents, to lock the other side in on their positions early on, has an enormous benefit. This gives you the opportunity to act first. The object that I’m suggesting is to get the initiative from the beginning and keep the other side in reactive mode. And by that we don’t mean just at trial. You can also win a settlement. If you understand the weaknesses in your own case before the other side does, that will inform your settlement strategy and you may be able to get a settlement that you would not be able to get six months later. Now, there is no one key to winning and no one key that has universal application to all cases. But experience shows that most cases at trial eventually turn on just two or three issues. Our experience is that you are at a huge advantage if you have figured out what will ultimately matter in a case and the other side hasn’t.