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

May 7, 2014
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Indiana Lawyer Focus

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 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.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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