How can you sort out evidence, arguments, strategies, decisions, and issues as you're working on a case? Former trial consultant (now legal software CEO) Greg Krehel suggests using "issue analysis memos". These are working documents that outline and analyze your case -- beginning when the case is just a few notes after your initial intake interview and going on through years of pleadings, depositions, and negotiations. Greg Krehel, Creating & Using Issue Analysis Memos: Part 1, Law Practice Today, June 2006.
Krehel says that as a consultant, he and his partner would ask lawyers to give them background information about the cases for which they were to conduct mock trials or offer suggestions. Very often, the lawyers would give them pleadings -- complaint and answer. The pleadings give part of the picture -- the chief factual allegations, the claims and counterclaims -- but they are inadequate. (1) They don't cover the elements needed to prove each claim. (2) They're frozen in time. (3) They don't reveal the lawyers' evaluations of the evidence and arguments.
You should start an issue analysis memo for each new case as soon as your noodling on the matter begins. It only takes a few minutes to jot down your initial impressions of case issues.The article goes on to offer specific suggestions.
Be sure to trap all possible claims, counterclaims and cross-claims, as well as any arguments that you're already aware could be made about them. In other words, get down the issues all parties are likely to introduce, not just your own.
Use early drafts of the memo to frame the Complaint or Answer, but then keep this analysis document hard at work until the case is resolved by settlement or trial.
In a sidebar, the editors mention three software programs that can be helpful for creating outlines: NoteMap, BrainStorm, and ActionOutline. (NoteMap is produced by Krehel's firm, CaseSoft.)
Graphic by mw.
Update: Part 2 (July 2006) is here.
Filed in: writing, issue-analysis-memos, tips
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