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The Effective Lawyer teaches ambitious trial lawyers how to grow their skills and create a prosperous law firm. Using lessons learned by accomplished attorneys from around the country, we discuss lessons learned through their trials and tribulations. Our discussions cover a vast range of topics sought out by attorneys looking for advice, from depositions to how to market your law firm.
The show is hosted by Jack Zinda, Founder and Senior Trial Lawyer at Zinda Law Group. In less than 15 years, Jack and his team have grown Zinda Law Group from 3 attorneys to over 30, spanning several states and handling a variety of personal injury cases from gas explosions to truck accidents.
Jack and his guests share their knowledge and skills that they’ve acquired through the process of building one of the most successful plaintiff’s law firms in the country.
In each show we cover a new topic that an ambitious attorney would want to better understand, while providing practical skills to improve their legal practice.
For more information, visit https://www.zdfirm.com/the-effective-lawyer
00:00
Speaker 1
Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda and I'll be your host. Hey everyone, Jack Zinda here, the Effective Lawyer podcast. Today I'm going to talk about discovery. You know, specifically written discovery and a surefire way to make sure you catch everything that's important in your case. I find that discovery is one of the most undervalued areas in our practice. I find too many lawyers rely on templates, don't put much thought into it, and send out the same cookie cutter discovery every single time. Take whatever pittance of information that defense gives you and go to trial with missing critical information that could take a $100,000 case and make it a $2 million case.
01:03
Speaker 1
Because keep in mind, evidence of either defendant behavior or past bad acts can really have a multiplier effect on your case. And also a lot of times there's evidence there that really helps you establish liability and even punitive damages. So I'm gonna give you some practical ways to go about doing this in an SOP and a checklist and things that we do internally and we train our young lawy and anything we talk about here we probably have in an SOP or a form doc. Feel free to reach out. Happy to send you a copy of it or set up a time to talk about it. I believe a rising tide raises all ships and this is an area that can one make you a much better lawyer.
01:42
Speaker 1
It's easy to delegate to your team if you get good at that and it can add a lot of value to your client's case. So let's talk about what discovery want to start with. The first thing you want to do is schedule yourself time to work on this process. I like to get to a quiet space, one of our conference rooms and I work with the file of the clients. Okay. A whiteboard and a computer that is not connected to the Internet or is blocked, so it only has access to the client file. As I've mentioned in other podcasts, I'm a little crazy about focus. I have a very difficult time staying focused. I have to set up the perfect setting for me to make that happen.
02:25
Speaker 1
I even have a login on my computer that doesn't allow me to get on teams or Outlook or the Internet. It just allows me to get to client files into our practice management software. So one practice point, set yourself up for success when you're going to do deep work. I see attorneys that have like their computers open with Outlook and Instant messenger and their cell phones out and the TV on. And for me personally, I can't work that way. I get distracted by like a butterfly. So create a white space, a quiet space. Book out a time that you're going to work on this. I think an hour to start is good and then you can add more time later on. Have a copy of the file. The first thing you want to do is create your theory of the case.
03:04
Speaker 1
And we actually have a form we use for this. This is what do you want the facts to be in the case, starting from the defendant's action if it's a commercial case, what their employer did walking through the wreck and post rec. So if I have a commercial vehicle case, there's going to be a lot of facts. I don't know, but I have a lot of experience in these cases. So maybe I want one fact to be this driver has a terrible driving history. They've been fired from three separate jobs before the employer was aware of this when they hired them or didn't do a background check. They also had previous incidents at this company as well. This isn't the actual facts. This is what I think some good facts for me might be in the case.
03:48
Speaker 1
And I do this for the entire case and I call it a theory of the case. And I actually do a voicemail and have it transcribed. And that's what I would hope the case would be. Then I have my theory of the case and I make a list of potential items. I would want to prove that theory of the case and witnesses that could help me with that. So let's say, for example, one of my theories of the case is that the driver was on their cell phone. And let's just use the most bombastic, terrible example you can imagine. Let's say they're watching pornography while driving along the road after driving for 22 straight hours. Like that's a pretty bad fact there. So one, I need to find out. I need to get their cell phone. That's the piece of evidence I need.
04:37
Speaker 1
Practice pointer cell phone from the cell phone companies. That information is not very helpful. You need to do a data download to get that information. So I would have data download. I need to one, ask the driver, were you on your cell phone? Do you own a cell phone? Two, I need an expert witness to help me with the download and I need to download the data. So now I have a list of several things that I need. This goes on. My discovery plan is either evidence I need to get or witnesses I need to talk to or depose. I like to use a whiteboard. Some people like to use voicemails, some people like to type it up. When I use a whiteboard, I'll write all of these things on a whiteboard.
05:19
Speaker 1
Then I'll do an audio memo to my team going through the whiteboard and send them a picture of it. I don't like to type things like that because I'm big on formatting and It'll take me 10 or 11 times as longer. So I'm going to go through theory of the case, make a list of what I want, write it out. Now I have witnesses and potential evidence. If you'd like a copy of any of the things you heard about here today, or to set up a time to talk about one of our team members about a case, please go to Zendalaw I.O. And we have amazing resources, downloads, guides, and you can set up a time to talk to us if you want to talk about how we handle things or any case in particular.
06:10
Speaker 1
Next thing I'm going to do is now I'm going to create my discovery questions. We all have templates that we use for different types of discovery on cases. We tailor our discovery in every case to make sure we're including requests for these pieces of information. So the cell phone number, who's the carrier? Where were you before the wreck occurred? A copy of the employment file. If you send too broad of discovery requests, it's really easy for the defense to win their motion to quash or to feature motion to compel because you're being overly broad. And I see a lot of attorneys use discovery requests that frankly, are overly broad and probably you're not entitled to see every incident that occurred at a Walmart from 1985 to 2005. You probably want to narrow that scope a little bit. Think about what video evidence is there.
07:04
Speaker 1
Was there a camera? Have them prove there wasn't a camera. I cannot tell you the number of cases where a defendant said there was not a camera like a store or a business. And there was a camera and it was recorded and it was there. We had a wrongful death case recently where it was a really tragic situation that ended up in, you know, close to an $8 million result. Where our client was killed and there was video footage at a convenience store. It had been erased, but the employee had recorded it on their cell phone because it was such a crazy event and because we thought about like, hey, let's talk to the employee that was working there at the time. They may know something that's how we got it. Otherwise we don't get that.
07:44
Speaker 1
And it was a very contested liability case, and that really made the case. This is a fun thing to do to brainstorm with your team as well. And they don't necessarily have to be lawyers to this because this is just thinking through what could have happened. Okay, so now I have what we want, and I send out my discovery requests. And if you all are like me, the responses usually include a bunch of garbage objections and hardly any useful information. So you typically are going to have to do a motion to compel. Most lawyers, motion to compels are really broad and just say, give me all this stuff, and it's confusing to the judge. We've got our list of stuff we want, right?
08:26
Speaker 1
So our motion to compel is going to include just the stuff we think they have that we really want in the case. And when we get their responses back, we're going to have our team do what's called a person of interest log. And we have a copy of an example of this if you'd like it. And this is making a list of everybody we identified in their discovery documents. That's important. It could be a supervisor, a co worker. I can't tell you how many construction cases we've had where we've done like 15 depositions in a day. We just said, hey, you guys can't give us a straight story. So we just wanted to post everybody that was there. We're gonna do 15 minutes with each.
09:02
Speaker 1
And all of a sudden they found the three witnesses actually know what happened because they don't want to waste all their time on that as well. So a person of interest law can be super helpful. You can delegate that to a law clerk, you can delegate that to a paralegal, an associate. You also want to create what I call a production log. What are all the things they sent over to us and more importantly, what's missing? This is where we make our money. This is what makes us better lawyers. Not me, but all of us as trialers. Is this going deep into the case?
09:30
Speaker 1
Okay, so now I have a list of things that are missing or people that are missing, and I'm going to draft a compelled letter, and then I'm going to send that compelled letter to the other side and then be ready for a motion to compel hearing where I attach that letter, and it makes that process so much easier. Another practice pointer, make them say something doesn't exist. Don't let them hide behind an objection. I got burnt on that early in my Career. They didn't produce a photo. They had an objection. They still produced photos that were responsive to the answer. But I didn't get clarification that was all of it. Make them withdraw their objection or say this is all that's there, or get the judge to make a ruling on it or you're going to get burnt at trial. Trust me.
10:16
Speaker 1
I also use this to create a list of depositions that I need to take and as well as my deposition outline. And what's cool is you just take this really complicated process. It's kind of hodgepodge with like, what discovery do I want? What did they give us? How do we compel? And you break up into these bite sized pieces where you spend an hour here, an hour there, delegate it to your team, they're kind of on autopilot. And one of the more tedious areas now becomes fun and actually adds a ton of value to your case. I also have a strong belief that you want to use some sort of numbering system, Bates log some way to identify the items and make sure you're clear on what you're holding back from privilege or objections.
10:56
Speaker 1
If you get into federal court in a lot of states courts, you want to, of course, always be ethical, but you can get a lot of trouble if you hold something back that you shouldn't have. I remember I had a case one time, it was a wrongful death case and it was involving a client and she had three kids and her husband had been killed. And I spent all this time prepping her, make sure I had everything. And she's doing, you know, giving her deposition. And she asked him, hey, do you have any photos? And we produced all the photos. He said, yeah, but there's a couple videos too, that I've got. And I'm like, in my head, I'm like, what videos? You didn't give me any videos. Yeah, he did some stand up comedy and he pretended to be the pickle man.
11:35
Speaker 1
And it was kind of inappropriate, but it was really funny and I'm just kind of sinking my seat. I was like, oh my gosh. He's like, yeah, it's on my phone right here if you want me to show it to you real quick. And the client starts playing the video to the defense attorney in the deposition. Now, luckily it didn't kill the case, but it's just an example. You want to make sure you ask your client everything to have and just search high and low. Like I said, almost everything I've learned to do the right way is because I did it the wrong way three times first. So let's recap discovery Number one Understand the importance of it. Number two put time in on the front end, have a quiet space. Come up with your theory of the case.
12:14
Speaker 1
Come up with the things you want to get. Number three make sure you do a production log, a person of interest log and create your compel list. And four make sure you track and force the defendant to withdraw or produce everything they have or get a ruling from the judge. This area can either be tedious, terrible, or a lot of fun and add a lot of value to your case. If you have more questions about or want to talk about further, please feel free to reach out. We're always here to help. Good luck.
12:45
Speaker 2
Thanks for listening today's episode of the Effective Lawyer. You can learn more about our team and find other episodes of our podcast at zindalaw.com as always, we'd appreciate that you subscribe, rate and review the pod. Thanks.