Focusing: When Less is More

Joyce S. Meyers is a partner at Montgomery, McCracken, Walker & Rhoads, LLP in Philadelphia, PA and an Associate Editor of Litigation.

This article originally appeared in the Winter 2002 edition of Litigation.

Sometimes small cases teach big lessons. More than a decade ago I defended such a case. My client was a television production company that aired a popular teen dance show. The plaintiff had been one of the show’s regulars.

The case, which I referred to for years as my "slipped bikini case," arose out of the videotaping of one of the shows at an amusement park in the summer. Because of the setting, the participants were invited to wear shorts or beachwear for the taping. The plaintiff, then a girl of 15, chose to wear a strapless bikini with a lacy blouse over it. During her vigorous dancing, one side of the bikini top slipped down a few inches. Because she was wearing a blouse over it, even her dance partner did not notice.

When the show was aired, however, the diagonal line of her bikini top under her shirt was visible on the screen for a few seconds. Although her breast was not visible, her teenage friends and classmates, as teenagers will, took the opportunity to tease her.

Several years later, she found a lawyer willing to file a lawsuit on her behalf, claiming that this episode ruined her life. The complaint included multiple counts, including defamation, invasion of privacy, negligence, breach of employment contract (although she was not an employee) and punitive damages.

Hoping to be a hero to my client, I promptly filed a motion to dismiss, marshalling what I thought were compelling legal arguments against the sufficiency of the complaint on each cause of action. Among the most compelling was the fact that the defamation and invasion of privacy counts were barred by the statute of limitations. In her response brief, plaintiff conceded that these two counts were time barred but asserted arguments on the other counts. The court denied the motion in its entirety.

I was stunned. How could the court allow plaintiff to pursue claims that she admitted were time barred? A little thought provided the answer, which eventually evolved into a strategy for disposing of the case. The problem was that the motion was too inclusive and allowed the plaintiff too many points to dispute. The overworked motion court judge had neither the time nor the inclination to focus on each count or each argument but probably skimmed the plaintiff’s response to see whether there was anything at all to justify letting the case proceed. Finding one colorable argument was enough to deny the motion in its entirety.

I decided to try again but to learn from my mistake. I filed a motion for partial reconsideration limited to the two counts that were clearly and undisputedly time barred. That motion was granted.

I tried to use this lesson to develop a winning strategy for the rest of the case. After filing an answer to the remaining counts, I took the plaintiff’s deposition. Although her testimony would have supported a summary judgment motion on all the remaining counts, I resisted the temptation. Instead, I filed a series of partial summary judgment motions one count at a time until only a single count remained. I started with the negligence count because plaintiff’s deposition established that she could prove neither a physical injury nor pecuniary loss as a result of the show, and the facts did not fall within the very limited circumstances permitted to recover for negligent infliction of emotional distress. I filed a motion for partial summary judgment solely on the negligence count that was sharply focused and only a few pages long. The judge, undistracted by other issues and arguments, granted the motion.

Next, I filed a very short motion for partial summary judgment to eliminate the claim for punitive damages since the only remaining theory of recovery was the claim based on an alleged breach of employment contract, for which punitive damages were not available. Again, the motion was very short and supported by well-settled case law over which there could be no real dispute. That motion was also granted.

What had started out as a multicount complaint was now reduced to a single claim, the claim for breach of an employment contract. The defendant’s position was that the plaintiff had been a volunteer, not an employee, and there was no contract. In the motion for summary judgment I filed on the remaining contract claim, however, I decided not to distract the court with a challenge to the existence of the alleged employment contract, recognizing that, to defeat the motion, the plaintiff had only to raise a factual dispute - any factual dispute - about whether some sort of contractual obligation had been created. Instead, I relied on case law that precluded damages for emotional distress in a contract case in the absence of either physical or pecuniary injury. Because the court had already dismissed the negligence count based on a finding that plaintiff had suffered neither pecuniary loss nor physical injury, and that was the law of the case, plaintiff had no answer to this argument. As a matter of law, the contract claim could not stand, summary judgment was granted, and the case was dismissed.

This was hardly a complex case. Yet addressing each count and developing each legal argument would have produced a substantial brief supported by numerous exhibits. As I learned in my initial motion to dismiss, a colorable argument on one count can distract a court from focusing on the winning argument on another. By addressing the separate counts seriatim in short, focused motions, I succeeded in disposing of the entire case.

Filing a motion that does not address every issue and assert every argument you have seems to run counter to everything lawyers have been trained to do. We learn issue spotting in law school and are rewarded for spotting, and addressing, as many as possible. As young lawyers we are taught to be inclusive in our zealous representation of our clients - to consider every angle, assert every claim or defense, make every argument. We are trained to conduct broad discovery into every conceivable fact, leaving no stone unturned, no interrogatory unasked, no document unrequested or unreviewed, no witness undeposed. We live in fear of inadvertently waiving claims or defenses or failing to preserve issues for appeal.

Yet sometimes the clutter we create can obscure the winning strategy, distract the factfinder from the one clear fact, the one clean theory that will turn the case your way. Even in a complex case, narrowing your focus may prevent blurring the picture and confusing the factfinder. It’s important to sharpen your perspective to focus on what you need to win.

What worked in a simple case can be adapted to complex ones, both at the summary judgment stage and at trial. Indeed, the more complex the case, the more critical it is to develop a strategy to cut through the mountains of evidence and complex legal issues to help the judge or jury see clearly why your client should prevail.

More recently, I applied this lesson to a 50 count defamation case. The plaintiffs, a construction contractor, and his company, claimed that my client, one of two defendant newspapers, had defamed him and his company in more than 35 articles and editorials published over a nine-month period. These were precipitated by a public official’s charges that the contractor had benefited from favoritism and no-bid contracts in his business relationship with a municipality, as a result of his friendships with certain public officials. The articles and editorials reported and commented on transactions with the company over a nine-year period. Discovery in the case was extensive, and the factual record was voluminous, consisting of more than 30 deposition transcripts and thousands of pages of documents. The factual record overwhelmingly established the accuracy of the publications, and there were numerous other common law and constitutional defenses.

In my view, this was a summary judgment case, but it was one that required careful strategy. To defeat summary judgment, the plaintiffs merely had to persuade the judge that there was a material issue of fact. A thorough brief, asserting all the legal defenses and detailing the complete factual record, would have run hundreds of pages - daunting to even the most conscientious judge. I recognized that each argument I asserted and each fact on which I relied provided the plaintiffs with another opportunity to spin the record to create an issue of fact. To defeat my motion, the plaintiffs did not have to prove that their version of the facts was correct but only that there was a genuine dispute.

It would be too tempting for a judge faced with hundreds of pages of legal argument and record evidence on both sides to conclude that a material issue of fact must lurk somewhere in that massive pile of paper and take the easy way out by denying the motion for summary judgment. The problem was exacerbated by the fact that a denial of summary judgment in my jurisdiction is not appealable. Therefore, a judge could easily deny the motion with a one word order without the burden of writing an opinion. Granting the summary judgment motion, however, might precipitate an appeal. Each issue that I might assert to justify the summary judgment in my client’s favor would be one more issue the court would have to address in an opinion if the motion were granted. The temptation to issue a one-word denial, leaving the entire

case for a jury to decide, might be irresistible.

Faced with this reality, I remembered the lesson of my slipped bikini case. I looked for a way to allow the court to focus narrowly on a single issue without waiving my client’s right to assert all the defenses available to it. The strategy I used was a case management order. This strategy, of course, required the court’s cooperation, and this was not easy to achieve. It took three separate status conferences over many months to persuade the court to allow serial summary judgment motions on a single issue at a time. The court initially resisted this approach, accusing me of trying to get multiple bites of the apple. Ultimately, though, the court was persuaded, as was my adversary, that the approach made sense in terms of judicial economy. Because the plaintiffs’ status as public or private figures would determine the burden of proof the plaintiffs would have to meet, the first step was to move for a determination of the plaintiffs’ status. By narrowing the court’s focus to that single issue, I could file a brief of modest length supported by a limited number of exhibits. In a brief order and opinion, the court ruled that plaintiffs were public figures.

With the burden of proof thus defined, the plaintiffs were then required to come forward with sufficient evidence to demonstrate, with clear and convincing proof, that the defendants had published with actual malice, i.e., knowledge of falsity or reckless disregard for the truth. By limiting the focus to issues on which the plaintiffs could plausibly argue actual malice, the court’s ruling eliminated from consideration many factual issues raised by the publications, thus narrowing the case substantially. If any articles or issues remained after this round of briefing, the defendant newspapers still had the right to file subsequent summary judgment motions asserting all other available defenses to any remaining claims.

As it turned out, the subsequent rounds of briefing were not necessary. Faced with a massive documentary record, which corroborated the facts reported, the plaintiffs were forced to rely on arguments that the publications communicated false "implications" and "innuendoes" of criminal conduct on the part of the plaintiffs. The problem with this approach was that plaintiffs claimed that these alleged implications and innuendoes arose out of published reports that the FBI and a grand jury had investigated the plaintiffs’ business activities. Because the record established an ongoing FBI investigation and a grand jury subpoena for documents, the plaintiffs could not prove actual malice even as to the implications because the question of criminal conduct was still open at the time of publication. The plaintiffs were reduced to arguing that the information in the possession of the newspaper was insufficient to justify publishing statements that could be so damaging to the plaintiffs’ reputation -- an argument that did not meet the burden of proving actual malice as a matter of law.

By clearing away extraneous issues and evidence, we were able to focus the court on a single outcome-determinative reality: Because documents supporting the published reports, plaintiffs could not possibly prove actual malice on the part of the newspaper, even if the alleged implication of criminal conduct ultimately turned out to be false. Thus, the court did not have to determine whether the alleged implications existed or whether they were true or false, which might also be a jury question. Because the plaintiffs could not prove actual malice, the court granted the motion for summary judgment with a two-page opinion, and all of the other legal defenses never had to be reached.

This was a case where less was more. Although there were at a least a half-dozen strong legal defenses, and a massive amount of documentary evidence to support them, the winning strategy was not to use everything we had. By focusing the court’s attention on a single narrow issue, we allowed the court to see it clearly and rule in our favor.

Zooming in on a few key points rather than using a wide-angle lens can also work at trial. I applied this approach in a protracted product liability case alleging the contamination of a building by a chemical component of various building materials. The target defendant was the manufacturer of the chemical component, which plaintiffs characterized as a cause of virtually every malady known to the human race, from all forms of cancer to neurological problems to birth defects. Although the scientific evidence did not support these claims, the trial would be very long, the court’s admission of purported expert testimony was likely to be extremely liberal, and the plaintiffs’ scare tactics, consisting of repeated references to cancer and birth defects, were likely to be effective. In short, it was a tough case to defend.

Of course, if the manufacturer of the chemical component succeeded in persuading the jury that the chemical itself was not dangerous, the jury would have to find my client’s product, which contained the chemical, not defective. But suppose the jury was persuaded by the scare tactics that the chemical itself was dangerous? How could I avoid being swept up in that judgment? Although conventional wisdom counsels that a minor defendant should keep a low profile and stay out of the jury’s line of vision, being invisible was also risky. I needed to find a way to win even if the other defendant lost. Here, too, I found that less is more.

I prepared for trial by retaining a highly qualified expert, with strong academic credentials and experience in the field. My expert was a scientist, who was prepared to explain to the jury on a scientific basis why the chemical at issue was trapped in the matrix of my client’s product and could not escape into the environment to create a risk of human exposure. Thus, even if the jurors bought the scare tactics and concluded that the chemical itself was dangerous, they could still find my product not defective.

It seemed like a good strategy. I didn’t use it. Just a few days before my expert was scheduled to testify, I decided not to call him. It was the hardest decision I ever had to make. He was far more qualified than plaintiffs’ expert, I was sure that the jury would like him, and he was a good teacher, able to use simple, concrete examples to make complex science comprehensible. So why didn’t I call him?

The answer was that plaintiffs had approached the case with a wide-angle lens. Rather than present evidence about my client’s product, they sought to show that the chemical component at issue was toxic, leaving the jury to infer that any product containing the chemical was defective. Their expert industrial hygienist offered broad opinions condemning all products in the building that contained the chemical without providing any specific factual data about my client’s product. On cross-examination, I elicited some key admissions from him: My client’s product, which was used on the building exterior, had nothing to do with interior contamination; the test data he relied on could not prove his conclusion that the chemical at issue could be released from my client’s product; and that he knew of no scientific data that would support that proposition. Thus, although he opined that my client’s product released the chemical and created an environmental hazard, he essentially admitted that he was merely speculating.

My expert was prepared to refute, on scientific terms, the broad conclusions offered by the plaintiffs’ expert. I thought he could do so convincingly. I also realized, however, that he would be cross-examined aggressively and that plaintiffs’ lawyer would attempt through cross-examination to muddy the issues and undermine the admissions I had elicited from plaintiffs’ expert. To deny him that opportunity, I decided to forego the best evidence I had.

Instead, I called a single fact witness, a chemist who had been involved in the formulation of my client’s product. This witness, too, knew a lot about the chemistry and could have refuted the plaintiffs’ theory that the product released the allegedly toxic chemical into the environment. He could have testified, based on his own years of experience in handling the material during research and development, that exposure to these materials did not cause adverse health effects to him or others in the plant. I chose not to ask him any of these questions in direct examination but to narrow his focus to a single issue: the functional value of the chemical at issue to the durability and performance of my client’s product.

Shortly after we arrived in the courtroom on the day of his testimony, the plaintiffs’ lawyer arrived with three boxes of documents for cross-examination. He was seen swaggering around the courtroom, bragging to his trial team, and anyone else who would listen, that doors would be swinging open all over the place. He was wrong. In fact, it turned out to be the most ineffective cross-examination of the entire trial. Because I had deliberately narrowed the focus of the direct examination to a single issue, I was able to object to counsel’s attempt to lead the witness in directions where he thought he could score points.

Although my witness would have disputed counsel’s assertions about the alleged dangers of the chemical and of my client’s product because of the use of the chemical in the product formulation, the jury might have been persuaded by counsel’s leading questions, accompanied by his raised eyebrows and skeptical expression when the witness rejected his assertions. But he never got the chance to pursue those questions. When he tried to go down one path, I objected that it was beyond the scope of direct. Objection sustained. He tried another, and I objected on the ground that it called for expert testimony - the witness had testified as a fact witness and had not been qualified as an expert. Objection sustained. Each and every line of questioning that the plaintiffs’ lawyer wanted to pursue to bolster the unpersuasive conclusion of his own expert was precluded. By carefully focusing the testimony of my witness on a single issue, I was able to defend the use of the challenged chemical in my client’s product on the basis of function, without opening the door to any cross-examination on health or safety issues.

The limited scope of the defense evidence laid the groundwork for a focused closing argument. I did not attempt to persuade the jury that the chemical at issue was not dangerous. Instead, I framed the issue for the jury as whether the chemical, as used in my client’s product, rendered the product unsafe for its intended use. I focused the jury’s attention on the function of the chemical in the formulation of my client’s product and its necessary inclusion to achieve the properties required for the product to perform. I then focused on the plaintiffs’ failure to prove that the chemical made the product unsafe, particularly the admissions I had elicited from the plaintiffs’ expert. The strategy worked. Although the plaintiffs succeeded in persuading the jury - contrary to the scientific evidence - that the chemical component at issue was dangerous and defective, the jury nevertheless concluded that its use in my client’s product did not make that product unsafe.

But you don’t have to wait for a dispositive motion or trial to put away the wide-angle lens and zoom in on what is important. And you shouldn’t. The days of leisurely broad-based discovery that allowed our theories and strategies to evolve over time as we gradually filled in pieces of the big picture are becoming history, with both courts and clients increase the pressure on us to get to the point quickly.

Courts are competing with each other to clear their dockets, setting "rocket docket" schedules and imposing rigid limits on discovery. The new Federal Rules of Civil Procedure, for example, limit the number of written interrogatories and impose a seven-hour limit on depositions. If you spend hours inquiring into every detail of the deponent’s employment history and the name of each person who supervised him for the past 30 years, your time will be up before you ask the questions you really need. The old deposition outlines no longer work.

Clients are losing patience with protracted litigation. It takes too long and costs too much. They want the process streamlined, and they want quick results. The challenge is how to do this without sacrificing thoroughness and care. Again, the answer is to focus.

Early in the case, analyze the claims and defenses to identify a potentially dispositive issue for summary judgment. It may be that there are serious issues of liability but you suspect that damages are highly speculative and cannot be proven. Maybe you don’t have to undertake discovery on liability issues, which might risk unearthing damaging facts about your client that influence a factfinder to overlook flaws in the damage evidence. Instead, after thoroughly researching relevant case law, draft an outline for a focused summary judgment motion based solely on the plaintiff’s inability to prove damages. Then take focused discovery to establish key undisputed facts to support this motion. A simple, straightforward motion for summary judgment limited solely to damages will avoid distracting the court with complex liability issues and, if the plaintiff’s evidence on damages is insufficient, may dispose of the entire case.

This approach usually requires the court’s cooperation. Your adversary may not be willing to limit discovery to the issue that helps your case but may immediately start putting pressure on your client to settle by pursuing broad, burdensome and very expensive discovery on every issue in the case. Here is where a case management order can help. If you can persuade the court that a single issue may be dispositive and eliminate the need for expensive discovery, with the attendant discovery motions and protracted proceedings, the court may see the wisdom of establishing multiple waves of discovery on discrete issues to enable the parties and the court to determine whether an early dispositive motion is feasible.

This approach worked in a product liability case involving alleged occupational exposure to the products of more than 30 manufacturers. The plaintiff, four years after leaving his employment, had developed a rare condition that he attributed to various chemicals contained in products he had used in his work as a lithographer. After the defendants filed answers, the plaintiffs served discovery requests on all defendants. These consist of more than 100 interrogatories, all with multiple subparts and related document requests, seeking every conceivable kind of information and any scrap of paper relating in any way to all products sold by any defendant into the stream of commerce in the state during the entire 30 year period of plaintiffs’ employment. Of course, the defendants objected to the burdensomeness of the plaintiffs’ overbroad discovery requests, and the parties found themselves in front of the court in an attempt to resolve the dispute.

Defense counsel decided to use the plaintiffs’ burdensome discovery request as an opportunity to focus the court’s attention on a critical weakness in the plaintiffs’ case. After consulting with an expert, defense counsel argued to the court that the discovery was not only overbroad and unduly burdensome but was premature because, regardless of the product information produced by defendants, it was highly unlikely that plaintiff would be able to meet his burden of proving medical causation. Because this issue would be dispositive, judicial economy militated in favor of addressing it first. If the chemicals allegedly contained in defendants’ products could not in fact cause the illness the plaintiff claimed, there would be no point in burdening the parties with this time-consuming and expensive discovery.

The court was persuaded and entered a case management order, setting deadlines for plaintiff to produce an expert report and, shortly thereafter, to make his expert available for deposition. The court would then entertain Daubert motions to preclude the expert’s testimony, if appropriate. If the expert report survived the Daubert motion and established a prima facie case of causation, then, and only then, could the plaintiffs proceed to broad discovery on the defendants’ products. In order to provide a foundation for the expert report, however, the court ordered the defendants to provide information on the chemical formulation of each product allegedly sold to the plaintiff’s employer during the period of his employment. This focused discovery enabled the plaintiff’s expert to identify the specific chemicals to which plaintiff had been exposed and to formulate an opinion on whether these chemicals actually caused his medical condition.

The plaintiff’s expert was highly qualified in the field of occupational medicine, although he had never before encountered the plaintiff’s rare disease. Nevertheless, he reviewed some medical literature and formed certain opinions, based on his knowledge of the chemicals involved. His deposition established, however, that there was no scientific data to support his conclusion. It was theoretically plausible, but nothing in the medical literature supported it. Under the standard of Daubert, and the analogous test applicable under state law, the court as gatekeeper had no choice but to preclude the expert’s report and testimony.

It was clear that the judge did not want to do so. He was so sympathetic to the plaintiff and his counsel that, despite the strong motions filed by defendants, he invited the plaintiff’s expert to file a supplemental report to address the deficiencies of the initial report. Ultimately, however, the sheer lack of scientific data to support the expert’s opinion was determinative. The court reluctantly precluded the expert and granted summary judgment to all defendants on the ground that the plaintiff could not prove medical causation. This result was affirmed on appeal.

By focusing early on the one dispositive issue and persuading the court to limit the first wave of discovery to the information needed to resolve it, the defendants avoided literally hundreds of thousands of dollars worth of discovery and disposed of the entire case.

Courts have endorsed the use of similar case management orders in complex multi-party toxic tort cases, requiring the plaintiffs to establish a prima facie case before imposing the burdens of discovery on defendants. In Lore v. Lone Pine Corp., No. L-33606-85 (N.J. Super.Ct. l986), the plaintiffs brought suit against 464 defendants, claiming personal injuries and property damage caused by pollution from a landfill. The court entered a case management order requiring the plaintiffs to produce expert reports establishing (1) injury and causation as to personal injury claims and (2) diminution of property value as to property damage claims before the case would be permitted to proceed. After reviewing the affidavits submitted by the plaintiffs, the court concluded that plaintiffs had "failed to provide anything that resembles a prima facie cause of action based upon property diminution or personal injuries" and dismissed the case with prejudice. In doing so, the court acknowledged the coercive effect of this kind of mass tort litigation in forcing unjust settlements when no legitimate claim exists:

Other courts, citing Lore v. Lone Pine, have followed its example. See In re Love Canal Actions, 145 Misc. 2d 1076, 547 N.Y.S. 2d 174 (N.Y. Sup.Ct, Niagara County, N.Y. 1989) (entering order requiring plaintiffs to produce evidence of exposure to chemical from defendants’ landfill and expert reports establishing injury and causation prior to any further prosecution of the case); Acuna v. Brown & Root, Inc. 200 F. 3d 335 (5th Cir. 2000) (affirming dismissal of a claim by 1,600 plaintiffs against 100 defendants alleging tortious injury arising from uranium mining activity following the entry of a "Lone Pine order").

In some cases, no amount of creative analysis or case management will permit a quick disposition. If you determine early that there are issues of fact that are likely to preclude summary judgment, you should immediately begin focusing on what you need to do to win at trial. One way to do this is to write your closing argument at the beginning of the case. You may ask how this is possible before you have investigated the facts and established a record through discovery. But it can be done and can be a very effective tool for streamlining and focusing your case.

I learned this many years ago as the junior member of a team defending a railroad in a claim filed by the widow of an employee who had committed suicide. The plaintiff, who had been left with five children to raise by herself, claimed that work-related stress, including deliberate harassment by certain co-workers, had driven her husband to suicide. She was a highly sympathetic plaintiff, and it was undeniable that the defendant railroad had caused stress to many of its employees as a result of lay-offs and transfers. It would be an emotional and difficult trial that would tug at a jury’s heartstrings.

Early in the case, the partner in charge offhandedly suggested that I draft a closing argument. Although he later forgot that he had done so, I took his request seriously and spent a great deal of time preparing an argument that I thought would work, although I did not yet have all the relevant facts. As I saw it, because the existence of some work-induced stress was undeniable, the defense had to focus on causation.

The complaint suggested that there would be some difficult facts. One of these was a supervisor who was characterized having been harassing and abusive toward the decedent. The only other information we had initially was a tape recording made by the decedent at the time he took his life by exposing himself to a car exhaust. In the 45 minutes or so it took him to lose consciousness, he recorded rambling comments reflecting his feelings about his family, his anxieties about his job situation, and his low self-esteem. The tape also included a segment made during the decedent's visit the previous day to the supervisor who was being accused of harassing him.

I knew little more than this when I began drafting a closing argument and focused on those facts to sketch out the best defense I could. I then used that preliminary closing argument as a guide to discovery, focusing on two primary issues. The first was the decedent’s personal, medical and psychological history and family relationships and the extent to which these factors caused him to commit suicide. The second issue was the work environment. We needed to show that what the plaintiff characterized as harassment was nothing more than the normal level of banter common among coworkers in that environment, that it could not have caused the decedent’s suicide, and that the railroad was not negligent in failing to stop it.

Discovery on the first issue yielded a picture of a man with long-standing serious psychological problems that had nothing to do with his work. He only had an eighth-grade education, a very troubled relationship with his father, a lifetime of poor self-esteem, alcoholism, and recurring marital and sexual problems. There was ample evidence to support an expert opinion that his work situation did not cause his suicide.

As I began weaving this evidence into my evolving draft of a closing argument, however, I realized that there was a substantial downside to presenting it. A jury could see this evidence, and an argument based on it, as an attack on the decedent, an attempt to discredit him as a person and minimize the loss to his wife and five children. With a sympathetic widow and children in the courtroom, an emphasis on these facts could anger a jury and create a backlash that would have a devastating impact on the defense. Clearly, although this evidence was important to the defense, it had to be presented delicately, if at all. The primary focus had to be elsewhere.

I decided that a better approach was to focus on undermining plaintiff’s claim of workplace harassment. The centerpiece of plaintiffs’ case was alleged harassment by the decedent’s supervisor. It was undeniable that the supervisor was an unsavory character who sometimes entertained himself by playing on the decedent’s anxieties about losing his job. The plaintiffs’ theory was that the railroad was on notice of the harassment and abuse and negligently failed to stop it. To establish the railroad’s negligence, the plaintiff sought to demonize the supervisor by focusing on other alleged misconduct, such as his crude and vulgar language on the tape, his part-time job at a porno shop, and an accusation that the supervisor had stolen certain equipment from the railroad – an accusation that had never been substantiated.

As I continued working on the closing argument, weaving in facts developed in discovery as they emerged, I looked for ways to defuse the impact of the supervisor’s admittedly unpleasant character. I became convinced that proof of the decedent’s friendship with his supervisor would do much to undermine the plaintiffs’ theory of liability. For example, the day before his death, the decedent had stopped by the porno shop to chat with his supervisor, and they had had a drink together. Portraying the supervisor as the decedent’s friend could be tricky, however, because attacking the decedent by criticizing his association with this unappealing character could also create a jury backlash. It was important, therefore, to neutralize the most damaging evidence about the supervisor to make this work.

I accomplished this by preparing a motion in limine to preclude evidence about the supervisor’s employment at the porno shop and the unproved accusations of theft against him. Just before trial, the court granted the motion. That ruling, coupled with other facts elicited in discovery, ultimately resulted in a very favorable settlement on the eve of trial. The exercise of writing the closing argument first and using it as a guide throughout discovery and trial preparation played a large part in reaching this result.

The lesson of focusing, of not using every issue, every argument, every scrap of evidence that supports your position, is a hard one to learn and an even harder one to apply. We are trained to be thorough and inclusive in preparing a case, to be careful to preserve issues for appeal, and we are all afraid of being second-guessed. For all of these reasons, there is a strong tendency to assert every argument, present every scrap of evidence, and make every objection. But sometimes less is more. It takes self-discipline, judgment, and no small sense of adventure to zero in on what really counts and jettison the rest. But sometimes that is exactly what is needed to win.