Following a simple roadmap based on naturally available resources, organizing, and managing documents can alleviate much of the daily stress and pressure of litigation.
by Daniel H. Hernandez
Ray Peña McChristian, P.C.
I have heard it said that a speech should not begin with an apology, but here goes – sorry if this is another “how to do it better” or “how to avoid feeling overwhelmed” article with your caseload. But if you started out like me, thinking I would cruise through my legal career without experiencing the stress of law school work as I did and subsequently realizing that litigation stress is far worse, then this how-to article might be useful to you. Remember back when we first became lawyers, we experienced a great sense of relief and became professionals, but this change brought a great deal of independence and a large amount of discretion-discretion with the use of our time, legal talent, and priorities. Some of us adapted quickly and others did not, mostly because we still wanted to be told what to do. I have found that thinking like a business owner instead of an employee plus a little organization, structure, and calendaring can go a long way to relieving the stress and anxiety of a busy litigation and trial practice.
Before becoming overwhelmed with the mountain of work involved in litigation, try to simplify the case and use early case documents for your management of the litigation. First, think of the beginning and the end of the case as bookends- the beginning is the Plaintiff’s lawsuit (Petition or Complaint) and the end is the jury charge; both pieces frame the issues for the case and set the tone for all work and documents to be developed in the litigation such as Defendant’s answer, investigation, discovery, evidence, etc. Generally, a plaintiff is bound by the lawsuit allegations and proof requirements within the applicable jury charge and must engage in discovery within this framework. So, a roadmap is set out for you, which can be converted into a litigation table to be discussed below.
Documents naturally available in a case, such as the petition and jury charge, provide a good basis for the development of a file and can be used to craft informal and formal discovery and effective discovery tools for a case. Other guidelines include case law elements of a cause of action, industry standards, regulations, primers, experts, and discovery responses.
For example, the Texas Pattern Jury Charge provides guidance on the proof requirements for a case based on a basic negligence theory in which we know that a plaintiff must prove that the defendant had a duty, which was breached proximately causing damages. The pattern jury charge further defines duty which is the failure to use ordinary care that a prudent person would have used or not used in the same or similar circumstances. Ordinary care is the standard of care or duty. Further proving negligence requires proving proximate cause, an act or omission that is a substantial factor bringing about an injury and damages and which was foreseen at the time of the occurrence. The Texas Pattern Jury Charge sets out the elements of many other causes of action. This guidance is the beginning of a structured approach to building a file.
Another useful resource for case guidance is case law elements of a cause of action which a practitioner should research to provide a foundational understanding of proof requirements and for its application to the case, which not only helps in preparing discovery but for a future summary judgment motion or defense of one. A practitioner should become very familiar with leading case law to develop the case and store a copy of this case law in the file for regular use during the life of the case. A good practice tool is to place the elements of the case into an evidence/proof chart.
A practitioner should also look at other sources for establishing the standard of care of the case beyond the jury charge definition of ordinary care or case law. For example, in a typical personal injury car wreck case, traffic law found in the Texas Transportation Code sets out the standard of care for the operation of a motor vehicle. The Federal Motor Carrier Safety Regulations provide the standard of care for the operation of a commercial motor vehicle as well as the employment of truck drivers and the operation of a trucking company. Industry standards and regulations such as Occupational Safety Health and Administration (OSHA) provide construction and general workplace safety standards to establish a standard of care for a construction site accident.
Experts are another source to provide case guidance. Working with experts early in the case will pay dividends at all stages of the litigation but especially at the beginning to help craft discovery and outline proof elements of the case by providing primers, research, and textbooks in various areas of the case, such as medical issues, psychology, engineering, construction, worksite safety principles, etc., which are useful to add to your arsenal of tools and guides.
Tools for Case Development such as Checklists and Tables
After developing a good understanding of the proof elements of the case, it is a very good idea to place this information in an organized location like a checklist or table to structure your case and provide an overall view of the litigation roadmap ahead. It is useful to help identify the type of evidence needed to meet each element of proof, develop strategy, and for creating potential deposition and trial exhibits. Checklists, tables, court scheduling orders, and calendaring timelines are good ways to keep a case organized, focused, and minimize litigation stress.
Litigation checklists can help move a case forward and keep it on track from filing the petition through trial by simply creating a list of the various deadlines common to every litigation case as dictated by the Texas Rules of Civil Procedure timelines.
Tables help chart the elements of a case and the evidence and witnesses necessary to develop the case. Here are examples of a list and table:
Discovery Sources for File Development
Effective early investigation and the use of informal and formal discovery tools are important for case development. Initial sources of information and documents should be used and explored early. Sources such as clients, courthouse records, public records, websites, regulatory agency websites, independent investigation, site visits, google earth views, etc. may provide invaluable information for the case. Examples of such sources are client files, courthouse civil and criminal records, company websites, trucking company and driver records from the Federal Motor Carrier Safety Administration, OSHA investigations, Texas Department of Transportation highway records, City/municipal records, and Workers’ Compensation files.
Party and non-party discovery is essential for determining the scope and extent of evidence in the case. The discovery rules set out an effective framework for developing case evidence, and the proper and timely use of these rules is essential. Consideration should be given to the preparing of documents and evidence for admissibility into evidence for hearings and trial such as TRE 801(e), 803 (5), (6),(7), (8), (24), 901(b)(7), 902(4),(10). Here is another table to navigate case discovery.
Managing Documents and Living Documents
Invaluable information and documents will be encountered throughout the case development process, which must be identified, analyzed, and organized for future use. Information may come in the form of documents, photos, and statements, such as those found in depositions, from witness interviews, and even in conversations with opposing counsel. Some ways to organize the information are through evidence tables mentioned above, the early creation of a witness list, exhibit list, “hot documents” folder, and opponent strategy list/comments. It is also helpful to create an early Motion in Limine/TRE 103 Motion to list contested evidence and documents. It is important to consider document management tools as living documents subject to constant updating and tweaking as the case develops. Another important tool is the early creation of a jury charge for the case to help guide the practitioner throughout the life of the case.
Modern computer programs and smart apps should be used to help organize case information. TrialPad, an evidence organizer and presentation tool, TranscriptPad, a robust transcript reader and organizer, and DocReviewPad, a versatile general document organizer, are now ubiquitous in litigation practice, inexpensive, and easy to use.
Following a simple roadmap based on naturally available resources, organizing, and managing documents can alleviate much of the daily stress and pressure of litigation. Incorporating these ideas and tools into a busy practitioner’s practice like checklists, tables and charts will help the attorney navigate the long and arduous process of developing a case for trial or alternative dispute resolution. ♦
Daniel has been a civil trial attorney since 1991, Board Certified in Personal Injury Trial Law since 1999, spending all of his legal career in El Paso. He has served as president of the El Paso Bar Association, volunteering in many capacities since the early 2000s, including CLE Director. He has also served as Vice President of the Texas Association of Defense Counsel, a state-wide association where he received the President’s Award in 2020 for his work with the El Paso Community.
Texas Bar College Board Director and Member, Joined 1998
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NAKED AT THE FIFTH CIRCUIT
Not many Texas lawyers probably have had the interesting experience of being nearly naked on the first floor of a federal courthouse.