Chronology best practices

Issue March 2005 By Greg Krehel

A fact chronology can be a tremendous asset as you prepare a case for trial. Yet, the majority of chronologies fail to live up to their full potential. Here are some simple steps that will help you get the most out of yours.

From the starting gate to the finish line, assembling case facts in an accessible format can put you on track to courtroom victory. The advantages are numerous. Chronologies are thinking tools. The very act of getting facts down on paper or in your computer clarifies thinking and makes the story of the case clear. Chronologies help ensure complete discovery. Which facts still need sources that will be acceptable in court? A good chronology makes it easy for everyone on the trial team to share case knowledge. Chronologies can also be used in a myriad of concrete ways. Use them when preparing for depositions, when developing motions for summary judgment and pretrial motions, in settlement conferences and during trial.

Despite such benefits, during 15 years of jury research work, I've consulted on many cases where the effort to create a case chronology was abandoned during the discovery process. Even the simplest of cases contains more facts than an attorney can keep in mind or organize meaningfully on paper. It's unrealistic to expect anyone to track notes scattered across many legal pads, much less to memorize 100 critical facts from 20 cases.

When an opponent is using modern technology to organize and explore case information, the litigator with a paper system is operating under a dangerous handicap. Unfortunately, those litigators who do stick with the task of creating a chronology often end up with unsatisfactory results. Many times, they end up with a list of case documents, sorted by date. Well, a document index is certainly useful when you need to get a piece of paper pronto. But it's hardly a chronology of case facts. Still other trial teams focus on facts, not documents, but create chronologies that contain just two or three columns: date, fact and (sometimes) source. These layouts are a start, but they fail to capture critical information about the facts, information that can make the chronology far more valuable. What's the solution? I have developed the following set of chronology best practices.

Don't wait

Start a chronology as soon as you hear from a client.

From your first conversation with a prospective client, you're gaining critical knowledge about the problem that led the individual or corporation to seek counsel. You should begin to create the case chronology immediately upon returning from your first client meeting. No matter how early you are in the case, and no matter how "small" the case may seem, as soon as your client has given you an overview of the dispute, you have been told more facts than you can easily memorize and manipulate in your head. And why even try? Your mind should be reserved for thinking, not memorization. Memorization is a job for your software.

If you start your chronology immediately, it can be used to good effect very early in the case. Take copies of the initial chronology to your second client meeting, and use them to clear up any misconceptions. Do the facts listed accurately reflect the client's understanding of the case? Can your client supply any missing dates? Can your client indicate which potential witnesses and what documents might be sources for these facts? Use the chronology also to focus your client on potential sins of omission. Is your client aware of any particularly favorable or unfavorable facts that don't appear in the chronology?

Define fact broadly

Include prospective facts and disputed facts in your chronology.

Some chronologies exclude facts for which a court-acceptable source has yet to be developed. Others exclude facts that are disputed. Both tactics are a mistake. If you don't enter a fact into your chronology because it's disputed or because you have yet to develop a court-acceptable source for it, what's the result? First, you're turning yourself from a thinker of immeasurable value into a $100 disk drive. You end up having to memorize all of date order.

Get stupid

Move everything you know about a fact and its implications from your head into the chronology.

When you enter a fact into your chronology, make sure you get stupid about it. In other words, empty your head of all knowledge regarding it. Your chronology should be a

memory replacement, not a memory jogger. If you don't get the complete fact into the chronology, you fail to clear your head of minutiae so that you can focus on thinking. And you derail the communication benefits chronologies offer. If a critical part of the meaning of the fact is still hidden in your head, others on the trial team won't know about it when they read the chronology. Every time you enter a fact into your chronology, pause and read it before you continue. Put yourself in the shoes of someone who doesn't know the case - say a new member of the trial team reading the chronology for the first time. Does what you've written represent your total knowledge regarding the fact? If not, edit the fact. While you're at it, ask yourself, "So what?" Does what you've written make the implications of the fact clear? If not, edit the fact. Further, if there isn't much of an answer to the "So what?" question, give the fact a good once over, and make sure it belongs in the chronology in the first place.

Indicate disputed status

Each fact should be flagged as being disputed or undisputed.

I've already argued that your chronology should include disputed facts. If your chronology contains a mixture of disputed and undisputed items, it makes good sense to create a column that indicates whether a given fact is undisputed or disputed and, if so, by which party. Consider titling your column "disputed status" and using these values: "disputed by opposition," "disputer by us," "undisputed," "unsure."

Once you've marked facts as being disputed or undisputed, your chronology becomes a tremendous aid in the preparation of motions for summary judgment and pre-trial motions. For example, instead of creating a last-minute list of facts to which you are willing to stipulate, you simply filter down to the undisputed items and print. If you've begun your chronology early in case preparation, you can use this information to organize your examination of adverse witnesses.

Show issue relationships

To create a great chronology, you need issues as well as facts.

The vast majority of cases involve multiple issues. Assessing the strength and weakness of your case is really an exercise in assessing your strength or weakness in relation to each of the issues in it. Here again, your chronology should be an important aid. Add another column to your chronology and develop a list of case issues. Include any topic that might influence juror thinking. For example, if you are working on defense in a products case, you might want to include this issue: "The plaintiff is motivated by greed, not a desire for justice." Even though you would never make such an argument explicitly, it would be interesting to see what facts point to plaintiff greed, allowing jurors to reach such a conclusion on their own.

Name the issue or issues on which each fact bears. You can capture issue relationships as you first enter the facts. Another alternative is to forego entering this information initially and ripple through the chronology at a later point focusing on issue analysis.

Establishing relationships between facts and issues is also a logical place to parse work among members of the trial team. Junior members of the team can cull facts from documents and depositions. Senior members of the team can make links between facts and issues. Creating links between facts and issues makes it easy to print chronologies of just those facts that relate to a particular issue - a capability that has great value when you analyze your case and develop strategy.

Take an issue-driven approach

Use your issue list to ensure you have a complete chronology and to generate a fact "wish list."

As you develop your chronology, consider taking a "top-down" or "issue-driven" approach to your case. As case preparation begins, and one or two times a year thereafter, conduct a brainstorming session in which you think about your facts on an issue-by-issue basis. Prepare by printing for each issue a mini-chronology of the facts that bear on it.

Begin the brainstorming session by reviewing the chronology of facts related to the first issue in your issue list. Then set the list of facts aside, and think about other facts of which you're aware that bear on this issue. Enter these additional items into your chronology. Next, think about the facts you wish you had for this issue. If you think there's any chance of developing such a fact, enter it in the chronology and list any potential sources that come to mind. Repeat this process for each issue in the case.

Put your chronology to work

Your chronology should be far more than a thinking tool. It should be a practical aid in communicating about your case with your client, the opposition and the trier of fact.

Use your chronology to communicate with your client. Send your client the chronology on a regular basis, perhaps quarterly. If you are using database software that stamps each fact with the date when it's entered into the chronology, have the software mark with an icon each fact that was entered since you last sent your client the chronology. By tagging new facts in this way, the report will give your client the complete story of the case, but it will be easy for them to focus on the new evidence.

Use your chronology at settlement conferences. Show opposition counsel and their client why the facts back your view of the case. Show them that you're organized and will be a formidable opponent if they choose to be unreasonable.

Use your chronology to make a powerful case to judge and jury. Chronologies are great tools for educating the jury during opening statement and for illustrating your arguments during closing.

You can even use chronologies to expedite the development of your new associates' case analysis skills. The day they arrive at the firm, assign each new associate to one or more cases, and make them responsible for developing a chronology for each. At set intervals (once a month?), have each associate submit a chronology that contains just the new facts they have entered. Critique the verbiage used to describe each fact, their determination of whether the fact is disputed or undisputed, their evaluation and their analysis of the issues on which the fact bears.

A chronology has the potential to be a tremendous aid as you organize and explore case knowledge. If you adopt the practices outlined above, I believe you'll realize this potential in full.

Greg Krehel is CEO of DecisionQuest's CaseSoft division. CaseSoft is the developer of litigation software tools including CaseMap and TimeMap. In addition to his background in software development, Krehel has more than 15 years of trial-consulting experience.