Litigation Tips: How to Focus on Discovery to Win at Trial

Main ideas / lessons

• Discovery should be targeted, not broad

  • The speaker describes a real experience where initial depositions failed to reveal the opposing lawyer’s “strategy” because the questioning was not focused.
  • After realizing the plaintiff’s side lacked a coherent plan, the speaker’s team could build their own case more effectively—implying that the quality of discovery determines case direction.

• From the start, identify the elements you must prove or defeat

  • For both plaintiffs and defendants, the key early step is knowing:
    • the elements of your claim (what you must prove), or
    • the elements you must defeat (what you must counter).
  • Discovery should be designed to obtain evidence specifically tied to those elements.

• Plan discovery with summary judgment and trial in mind

  • The “best way” to prepare is to ensure discovery early on yields admissible, usable evidence for:
    • responding to summary judgment, and ultimately
    • proving your case at trial.

• Use affidavits/declarations correctly to support summary judgment

  • Affidavits (declarations) are crucial for summary judgment evidence.
  • In federal court, declarations are typically made under penalty of perjury (not necessarily sworn).
  • A critical requirement: the affidavit/declaration must establish the foundation for the evidence, so the evidence would be admissible at trial.
  • Avoid conclusory statements:
    • Example given (sexual harassment): “I was sexually harassed” is too conclusory.
    • Better: specify what happened, who did what, and the context/climate that led the claimant to that conclusion.

• Depositions must be element-focused and admission-focused

  • The most important thing when taking a deposition is:
    • decide what elements you’re supporting (or attacking), and
    • decide what you want to learn from the witness to support those elements.
  • Deposition goal (as framed by the speaker): obtain admissions that support your case or defense.

• When defending a deposition, track the opponent’s direction

  • Defense counsel should closely pay attention to the questions being asked to understand:
    • where the opponent is going, and
    • what their strategy is.
  • The speaker ties this to learning “where the opponent’s strategy is going” by listening to the questioning pattern.

• Understand hearsay exceptions/definitions to shape discovery

  • The speaker references Wisconsin’s hearsay rule (statute cited: “908.03”).
  • He emphasizes the need to understand what is “not hearsay”, including:
    • statements of an opposing party
    • statements of an agent
    • certain statements where the opposing party manifests belief in an agent’s statements
  • These are highlighted as especially valuable because they can be used as admissions against the opposing party.

• Use a proof chart / element mapping system

  • Create a proof chart (formal or informal) that:
    • lists the elements to prove or defeat,
    • maps each piece of discovery information under the relevant element,
    • tracks:
      • what supports your claim/defense,
      • what additional discovery may be needed,
      • what evidence is ready for summary judgment, and
      • what is ready for trial.

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Methodology / steps (as presented)

1. Step 1: Identify controlling elements

   • Determine the elements you must prove (if plaintiff) or elements you must defeat (if defendant).

2. Step 2: Design discovery around those elements

   • Ask for discovery that will generate proof for each element.
   • Avoid discovery that is so broad it causes you to lose sight of what you must prove/defeat.

3. Step 3: Conduct depositions to obtain admissions tied to elements

   • For the party taking the deposition:
     • focus on questions that extract admissions supporting the targeted elements.
   • For the party defending:
     • monitor the opponent’s questioning to infer and understand their strategy.

4. Step 4: Draft affidavits/declarations with proper foundation

   • Ensure the declaration includes enough facts to show why the declarant is competent to testify (the foundation).
   • Replace conclusions with specifics:
     • include what happened, who did what, and relevant context.
   • Remember: summary judgment needs evidence that would be admissible at trial.

5. Step 5: Use hearsay knowledge to structure discovery

   • Look specifically for admissions/statements that qualify as not hearsay (e.g., opposing party’s statements, agent statements, belief-by-opposing-party scenarios per the referenced statute definition).
   • Prioritize obtaining these strongest statements.

6. Step 6: Build and maintain a proof chart

   • Create a list/chart organized by elements.
   • Under each element, record:
     • what you learned in discovery,
     • what supports your claim/defense,
     • what further discovery is needed,
     • what can be used for summary judgment and what will be used at trial.

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Speakers / sources featured

• Speaker: Lester Pines (partner at Colin Weston Pines and Bach, Madison; does civil and criminal trial work and civil appeals)
• Legal source referenced: Wisconsin hearsay rule/statute 908.03 (as referenced in the subtitles)