Chapter 11

• Jurisdiction: United States

Chapter 11

How to Organize the Case Record

Efficiency is doing things right; effectiveness is doing the right things.

—Peter Drucker, writer, professor, consultant

Overview

Organizing the case record is not something that keeps most litigators—and certainly not trial lawyers—up at night. It is perceived as something best left to the administrative team. But team leaders should give this topic serious consideration because how the case record is organized directly affects the team’s ability to achieve the mission. The director and project leaders of the complex case shouldn’t delegate key decisions on how to organize the case record and proof points to the administrative team without close oversight. They should participate in deciding how best to organize the case record.

If you follow my advice in the previous chapter and answer the key questions early, doing so will go a long way in getting the case record organized. But a mountain of other information exists that must be organized—like correspondence, e-mails, pleadings, discovery responses, deposition transcripts, witness material, and expert reports.

The goal of case record management is to create and then implement processes and protocols that allow the team to quickly locate information from the case record for use as constructive or destructive proof points and for other purposes—like responding to discovery and substantive motions and preparing witnesses. For this goal to be achieved, appropriate processes and protocols must be put in place at the outset of the case and then followed closely. Organizational processes and protocols can’t finally be imposed at the pre-trial phase. By then it is too late and the team will have much bigger fish to fry.

In all complex cases, you will need to choose among three types of organization methods:

1. archive based,

2. event based,

3. claim based.

This chapter discusses these organizational methods, explaining why and how to use them. I also briefly discuss software programs that can assist in organizing, analyzing, and presenting your complex case. The capabilities of these software tools should be understood so that you, as the director or project leader, can know how to harness their power.

Archive-Based Organization

Every complex case generates a vast amount of information, usually on a daily and often on an hourly basis during peak times. The case record includes documents (produced by the litigants or third parties), pleadings, correspondence, transcripts, discovery responses, etc. Much, if not most, of that information will never be used for trial or even motions. But the information can’t be discarded because the team may need to go back to it for a variety of reasons, e.g., to reconstruct what occurred in discovery in order to make or defend a motion to compel, to answer a client inquiry, or to support a fees motion. The information the complex case generates comprises the historical record of the complex case. Just like any other important historical record, the case record must be properly archived.

The essential features of archive-based organization

There are several actions the team should take to ensure that the archived information is accessible to the entire team.

1. Host the archived information in a secure web-based location.

The web-based location for the archived information must be secure and easily accessible. This secure location should function as an electronic war room, containing all of the archived information generated in the case, except for the documents produced by the parties in response to formal discovery requests. Team members must be able to access the information from the e-war room anywhere at any hour of the day through a secure, password-protected Internet connection. Once a complex case heats up, team members will be working outside the office, e.g., taking or defending depositions or meeting with witnesses out of state or out of country, and they will need ready access at all hours.

2. Employ a logical and fully searchable folder structure.

The folder structure must be logical and easy to navigate. It should allow team members (without assistance from a paralegal or staff member) to quickly search for and locate information. I have seen really complicated, Byzantine folder structures set up in complex cases by the administrative team, with only a few in-the-know team members able to find information held in folders. If the e-war room becomes a mishmash of folders impossible to navigate, team members will stop using the e-war room. Instead they will default to a silo approach by archiving information on their personal computers or, worse, in hard copy notebooks.

All of the information held in the folders must be scanned and the text...