Seal It With a Kiss

The word "KISS" is commonly used as an acronym for "Keep it Simple, Stupid!"

Justice Antonin Scalia was in the Bay Area recently, speaking to students at the University of San Francisco School of Law. On the subject of trial advocacy he told them that they should learn how to take a complex case and make it sound simple.

Unfortunately too many lawyers do just the opposite. They will take a simple case and try to see how complicated they can make it. In the process they accumulate many billable hours as well as a store of information that can be used to overwhelm the court. But as one judge said to counsel during a case that I was trying: "If you keep gilding the lily, pretty soon nobody will be able to see it!"

In this day and age of electronic discovery and the vanishing trial, when almost all cases settle, the KISS principle has to be applied to the entire litigation process. In complex cases especially, the amount of electronically stored information that parties and witnesses accumulate can be staggering. Just think about all of the trivia that can be stored in mobile devices and wearable technology.

Discovery costs need to be kept under control by applying the principle of proportionality. Counsel should focus on discovering the key pieces of information that can be used during negotiation to persuade the other side (and perhaps the client as well) to settle.

Or if the case fails to settle, then to win at trial.

                       

Michael P. Carbone

MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields.   His exceptional combination of transactional and litigation experience enables him to handle complex litigation… MORE >