Noyes: A short phone call can change the dynamic of a case

By Jon Noyes

During the summer of last year, I was supporting litigation in a rather unfortunate product liability case. The product at issue had exploded into our client’s face, but the explosion caused the product to shatter into pieces so tiny that only a small portion could be recovered. The rest of the product turned to dust. As time pressed on, it became painfully clear that we simply did not possess enough of the recovered product for our expert to complete the testing he needed to opine that the product was defective. After all, there cannot be a product liability case without a product.

Noyes

It was only after going back to the drawing board that we found a solution. In initial interrogatories, we asked the defendant whether there had been any other complaints of the same type of product exploding during use. As it turned out, there were two. I entered the individuals’ names into the Public Access to Court Electronic Records system hoping that there would be something, anything, giving us a lead as to where to go next. Luckily, one of the other individuals filed suit against the same defendant in another district.

I called the plaintiff’s attorney on the other case hoping to trade some ideas on moving forward. The attorney was also faced with the problem of a disintegrating product, but had found an expert with the specialized knowledge required to render an opinion. He had even deposed one of the defendants. The attorney gave me the name of his expert, we traded non-protected information, and I directed him to some cases useful in defeating an oncoming dispositive motion. Our firm got in touch with the expert and hired him. The rest is history.

The point of this story is that a challenging issue can often be resolved by simply communicating with an attorney that has encountered the same issue or something similar in the past. All it takes is picking up the phone and making the call. Attorneys who have experienced these tough issues can help with propounding targeted discovery seeking seemingly elusive documents, providing deposition transcripts of adversarial parties and their experts, forming legal arguments, and finding useful cases or briefs needed to win motion practice. These attorneys may also have the added value of hindsight if the issue was disposed of in their case.

Most importantly, it never hurts to hear someone else’s perspective on similar issues. Another attorney may be analyzing similar factual and legal issues, but have a different perspective regarding the best way to move forward. Hearing the attorney’s perspective and adding your own to the discussion helps both parties round out strengths and weaknesses of their respective cases. In fact, it can be a cost-effective and efficient form of litigation support.

There are a number of ways to make use of other attorneys in this way. Listservs are the most obvious medium. They often draw from large pools of attorneys and can cover issues ranging from broad litigation strategy to specialized bodies of law. However, Listservs are only as strong as their members. If the majority of the members are active, then Listservs can thrive. If the majority of members are inactive, or relegate Listserv emails to a rarely visited folder, then its utility can diminish greatly. Moreover, although a Listserv email can provide some insight into a difficult issue, a personal conversation may be a more productive medium for a fluid exchange of ideas.

A combined use of discovery and electronic court records is another way to track down support. Interrogatories requesting the names of other complainants, or captions of other cases, concerning similar issues provide a cost-effective means of securing this information. However, opposing parties are often reluctant to provide this information and, in fact, may object on relevance grounds. For individuals and smaller businesses, a quick search on Odyssey or PACER may also prove fruitful. These references allow attorneys to see whether an opposing party is involved in any other lawsuits in participating Indiana counties or at the federal level. PACER is especially helpful because it also allows individuals to conveniently download documents from a case’s docket at a reasonable cost.

These methods make for great jumping-off points, but the onus is on the attorney to make the phone call. After all, the practice of law is, at its heart, a social profession that builds from communications with others. We use authority and communications with our clients and witnesses to make arguments to the court and our adversaries. Opinions are crafted and settlements are agreed on from those arguments; the former become new authority. Other attorneys then use that new authority and the cycle continues. Networking with other attorneys on substantive issues is a natural extension of this cycle as it allows us to broaden our base of communication and, in doing so, better serve our clients. All it takes is some elbow grease and a phone call.•

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Jon Noyes earned his J.D., cum laude, from the Indiana University Robert H. McKinney School of Law in 2013. Jon joined Wilson Kehoe Winingham as an associate attorney in 2013. The opinions expressed are those of the author.