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 very act of getting facts down on paper or into your computer clarifies your thinking and makes the history of the case clear. Chronologies help ensure complete discovery: Which facts still need sources that will be acceptable in court? Use chronologies when preparing for depositions, when developing summary judgment and pretrial motions, in settlement conferences, and during trial.

Despite the benefits of a good case chronology, during 15 years of jury research work, I’ve consulted on many cases where the effort to create one was abandoned during the discovery process. Even the simplest cases contain 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 the pages of many legal pads, much less to memorize 100 critical facts from 20 cases.

But if one side is using modern technology to organize and explore case information, the opposing side, operating with a paper system may have a dangerous handicap. Unfortunately, some litigators who do stick with the task of creating a chronology often end up with unsatisfactory results. Many times, they end up simply with a list of case documents, sorted by date. While a document index sorted by date is certainly useful when you need to retrieve a piece of paper quickly, it’s hardly a chronology of crucial facts. Still other trial teams focus on facts, not documents, creating chronologies that contain just two or three columns: date, fact, and (sometimes) source. This kind of layout is a start, but it fails 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 client to seek counsel. You should begin to create the case chronology immediately upon returning from your first meeting. No matter how early you enter 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. Your mind should be reserved for thinking, not memorization. Memorization is a job for your software.

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. Excluding either kind can be 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? You’re turning yourself from a thinker of immeasurable value into a $100 disk drive.

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 about the case and you derail the communication benefits chronologies offer.

INDICATE DISPUTED STATUS: Each fact should be flagged as being disputed or undisputed.

I’ve already stated 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 identifies each and indicates which party does or does not dispute any given fact. Consider titling your column "Disputed Status" and using these values: Disputed by Opposition, Disputed by Us, Undisputed, and 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.

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 strengths and weaknesses of your case is really an exercise in assessing your strength or weakness in relation to each of the issues in it. Develop a list of case issues. Include any topic that might influence juror thinking. Name the issue or issues on which each fact bears.

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 list. Then set the list of facts aside, and think about other facts of which you’re aware that bear on this issue. 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. The report will give your client the complete story of the case, and it will be easy for him/her to focus on the evidence.

Use your chronology at settlement conferences. Use your chronology to make a powerful case to judge and jury. You can even use chronologies to expedite the development of a new associate’s case analysis skills.

SUMMARY: 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. I would appreciate your feedback. Please contact me at: gkrehel@casesoft.com.

Greg Krehel, a software developer and trial consultant, is CEO of DecisionQuest’s CaseSoft division ( www.casesoft.com). CaseSoft develops litigation software tools, including CaseMap and TimeMap.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer