Two characteristics that distinguish successful trial lawyers are preparation and strategy.
Strategy is more than simply doing what the rules require and the law allows. Strategy requires we explore our opponent’s fears, goals and pain points … and our own. Is it just about the money? Can we deflect, distract or, deplete the other side’s attention, energy or resources? How can they save face while we get what we want?
In a world where less than one-in-one-hundred cases are tried, discovery strategy, particularly e-discovery strategy, is more often vital than trial strategy. Yet, strategic use of e-discovery garners little attention, perhaps because the fundamentals demand so much focus, there’s little room for flourishes. As lawyers, we tend to cleave to one way of approaching e-discovery and distrust any way not our own. If you only know one way of doing things, how do act strategically?
Strategic discovery is the domain of those who’ve mastered the tools, techniques and nuances of efficient, effective discovery. That level of engagement, facility and flexibility is rare; but, you can be still be more strategic in e-discovery even if you’ve got a lot to learn.
Recently, I had to dash off a dozen e-discovery strategies for requesting and producing parties. I’m not completely happy with my lists, but I think I nailed a few of the essentials for each side.