Chapter 10

• Jurisdiction: United States

Chapter 10

How to Ask and Answer the Key Questions

If you don’t ask the right questions, you don’t get the right answers. A question asked in the right way often points to its own answer. Asking questions is the ABC of diagnosis. Only the inquiring mind solves problems.

—Edward Hodnett, writer

Overview

The obvious challenge posed by a high-risk, complex case is its complexity. A litigation team can quickly and easily get lost or buried in the myriad details to manage, analyze, and present. Several symptoms manifest: the team can’t see the forest for the trees; it appears that the team is discovering the answers to the key questions (discussed below) during trial; and there’s no prioritization of the proof points. The team’s trial preparation becomes an exercise in more-is-better—with every issue, fact, and document treated with equal importance.

What’s the cause of these symptoms? The team never answered the key questions. Thus, they couldn’t build their case around the answers to the questions.

Here are the key questions:

• What are the key issues?

• What are the key documents?

• Who are the key witnesses?

• What’s our story?

• What’s our theory and theme?

These questions must be answered at the beginning of the case. The answers must be constantly revisited. The answers guide every aspect of MAPing the case. This chapter discusses the key questions, how to answer them, and their importance to achieving the mission.

Hypothetical Case Facts—LightRay Technologies, Inc. v. C3, Inc., et al.

We’ll consider the key questions as they pertain to a hypothetical case: LightRay Technologies, Inc. v. C3, Inc., et al. The hypothetical facts are adapted from a case I handled several years ago. (I have used this hypothetical case in my law school course and numerous continuing legal education seminars.)

As you read the case facts, choose a side (either LightRay or C3) and prepare answers to these questions as if you were the lawyer for that side: (1) What are the key issues? (2) What are the key documents both sides will need to obtain in discovery? (3) Who are the key witnesses? (4) What’s the likely story from the perspective of each party? (5) What are the themes and theories each party will likely assert?

Here are the hypothetical facts:

• The Plaintiff LightRay Technologies, Inc. (“LightRay”) is a large defense contractor. For several years, LightRay operated a facility in San Jose, California (“San Jose Facility”). The San Jose Facility employed software programmers working under sole-source defense contracts for the U.S. Navy. (A sole-source contract does not involve a competitive-bid process where multiple contractors compete for the contract. A sole-source contract is placed by a government agency to a specific vendor/supplier based on the vendor/supplier’s unique ability to fulfill the contract terms.)

• The programmers wrote code for the command-and-control functions of the Tomahawk missile—the code directs the flight path of the missiles once launched. Most of the programmers had worked at the San Jose Facility for years. In October of year 1 and without notice to the employees, LightRay announced its decision to close the San Jose Facility. LightRay further announced the planned out-of-state relocation of the employees and operations of that facility. This decision was part of LightRay’s massive cost-savings reorganization.

• Defendant C3 is a small defense contractor. The principals of C3 were familiar with the Tomahawk program and the work performed by the programmers in San Jose. Upon hearing the news of closure and eager to seize an opportunity, C3 obtained address information and other personal information from a LightRay employee, Karen Daniels. Daniels also assisted C3 in holding a town hall meeting at a hotel near the facility. LightRay employees were invited to the meeting. At the meeting, C3 laid out its plans to open a new facility in San Jose—assuming it could hire programmers and secure contracts from the Navy. The LightRay employees interested in a job with C3 provided personal information to C3.

• C3 sent offer letters out to the software programmers and several managers who worked at the San Jose Facility. C3 believed the programmers and managers wouldn’t move out of state to a new LightRay facility and instead would accept employment with C3 if the Navy contracts followed. In the letters, C3 promised to open a facility in San Jose contingent on obtaining defense contracts from the Navy.

• C3 successfully recruited programmers and managers and obtained several large sole-source contracts from the Navy. In the lawsuit filed by LightRay, LightRay alleges these contracts would have been placed with LightRay but for C3’s interference. LightRay claims it lost over $40 million in potential defense contract work with the Navy all caused by C3’s actions.

• Through an internal investigation, LightRay discovered evidence that one of its managers, Lorraine LaRocca (one of the LightRay employees hired by C3), had funneled employee information (address, current salary, and security clearance ranking) to C3. LightRay also uncovered evidence that LaRocca had tried to convince the Navy to transfer existing LightRay contracts to C3. C3 asserts it did not direct, suggest, or encourage LaRocca’s actions. After LaRocca began working at C3, she was fired because of ongoing personality clashes with C3’s CEO.

• Besides the claim for damages, LightRay also claims it developed and owns the source code that the Navy provided to C3. The code is critical to the performance/completion of the defense contracts placed with C3 by the Navy. LightRay contends C3’s use of the source code constitutes trade secret misappropriation.

• Defendants (C3 and LaRocca) are sued by LightRay for theft of trade secret, breach of contract, intentional and negligent interference with contract, breach of fiduciary duty (LaRocca only), and unfair competition. LightRay seeks compensatory and punitive damages and injunctive relief.

What Are the Key Issues?

Every high-risk, complex case has its own key issues. How those key issues are resolved determines whether the mission is accomplished. Use the key issues as the primary organizational platform for all of the proof points. Every proof point must be associated with/connected to one or more key issues. Given the importance of the key issues, they need to be defined early to maximize their usage and utility. The key issues should be defined once the team has a solid understanding of the case facts. Because of their importance, senior team members must be involved in identifying the key issues. Once the key issues are defined, they are not immutable. They can change, but doing so comes with some risk and hassle.

Event-based organization v. claim-based organization

The type of complex case the team prosecutes or defends determines the best approach for creating the key issues. If the case is intensely factual, like the LightRay case (above), use an event-based organization approach. An event-based organization approach organizes proof points around the events of the case—e.g., the announced facility closure, C3 hiring/recruiting efforts, LaRocca investigation. In the real case, my team organized the proof points using the event-based approach because we...