Articles

• Current Issue
• Issue Archives
• Marketing Articles
• Management Articles
• Technology Articles
• Finance Articles

Law Practice Today

• Subscribe/Unsubscribe
• Write for LPT
• Advertise in LPT
• Article Reprint Permission
• Give Feedback
• ABA Law Practice Management Section
•  RSS Feed

---

Related Publication

 

Creating & Using Issue Analysis Memos: Part 1

by Greg Krehel

June 2006

Introduction

Of the hundreds of hours you invest in a case, the handful needed to work up an issue analysis memo could easily be the most important. Make this simple case analysis tool a standard for every matter and you'll always have a tight grasp on issues and arguments and ultimately on the case itself.

Your ownership of case issues will permeate other critical activities -- taking depositions, drafting briefs, evaluating the facts, reviewing documents and so on. Preparing an issue analysis memo can also result in numerous less obvious benefits; e.g., it can be used to dramatically improve your demonstrative evidence. Details on how to create an issue analysis memo and the many advantages of doing so follow below.

Here are 12 pointers for conducting effective issue and argument analysis and developing an analysis work product.

A Complaint is Not the Answer

Over the better part of two decades, my partner, Bob Wiss, and I managed a trial consulting firm. In each of the 500+ matters on which we were engaged to conduct mock trials; our efforts began by requesting background materials that would educate us about the case and its issues. A handful of times, we received a work product the trial team had specifically prepared to summarize issues and arguments. In the remaining instances, the closest approximation of an issue summary was generally the latest amended Complaint and Answer.

These pleadings certainly do present the claims, counterclaims and cross-claims that belong in an issue analysis memo. However, while a recitation of claims is necessary it is by no means sufficient. There are numerous reasons a Complaint and Answer should not be substituted for an issue analysis memo. First, the Complaint and Answer focus almost exclusively on the top-level legal issues; they rarely specify the elements required to prove each claim.

A second problem with using pleadings in lieu of an issue analysis memo is that once the cycle of amending the Complaint and Answer ends pleadings become frozen in time. They're not working documents that can be used to capture evolving thinking over the many months or years leading to trial.

The third and most important shortcoming of relying on pleadings for a case issue synopsis results from the fact that pleadings will, by definition, fall into enemy hands. As such, we're not going to use them to display our thinking regarding best arguments and hardest-hitting evidence – knowledge that's essential to a proper issue analysis. In the majority of Answers, the defense's position regarding each claim is pithily presented as “Denied.” This tactic makes complete sense given the Answer's true purpose, but also renders the Answer an absolutely worthless stand-in for an analysis report intended to clarify our arguments.

The bottom line is that any case worth filing or fighting deserves a purpose-built issue analysis memo that makes thinking regarding issues and arguments explicit.

Begin Before the Beginning

The filing of a Complaint is the gunshot that starts a case. But since plaintiff counsel authors this document they've obviously been thinking about the matter and its claims for an extended period beforehand. As often as not, defense counsel is also stewing on the potential case long before a Complaint is filed, as the defendant is normally well aware of the dispute that may result in litigation.

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.

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.

The World of Issues and Arguments Isn't Flat

The best way to organize your issue analysis memo is as an outline, not a flat list. An outline is the proper way to deal with the hierarchical relationship among claims and their elements. In an outline, elements are nested below the claims to which they relate. Visual presentation maps legal reality.

In contrast, a flat list masks the relationship between parent claim and child elements. Consider a Fraud claim. Proving Fraud requires a showing of these elements: Intent, Reliance, and Loss. In a flat list of issues, Fraud, Intent, Reliance, and Loss are displayed on equal footing. This is a counterintuitive presentation of the issues for those who understand the parent-child relationship between claims and elements. And it's an extremely misleading one for clients and others not versed in the law.

An outline structure also provides the best way to organize thinking regarding themes and arguments. Here again, an outline handles the real world correctly and a simple listing falls, well, flat. Arguments are typically marshaled in support of our position on a claim or one of its elements. Using an outline, arguments are easily binned under the claim or element to which they relate. Conversely, if we added arguments to a list that already contained claims and their elements, we would just be compounding the mess caused by parent and child dimensions appearing on the same level.

A final problem with using flat lists to organize issue thinking is that they quickly grow into ungainly monsters. As ideas are added, a list just gets longer and longer and longer.

An outline is a far more elegant method for dealing with the increase of issue ideas over time. It can be viewed fully expanded or collapsed so that it hides all child nodes below a chosen depth. For example, an outline can be set to present only the handful of top level issues or just the top two levels.

Don't Let the Pendulum Swing Too Far

A multi-level outline beats the pants off a one-level list. Does it follow that an issue outline with many levels is better than one with just a few? No, definitely not. There's no reason to expect an issue outline that's six levels deep to be twice as good as one that's three levels deep. In fact, a six-level issue outline is likely to be counterproductive overkill.

In the first months of working up a case, it's best to keep the outline quite simple -- two levels in most areas, maybe three levels in a few. In the early going, it's rare for the evidence to be clear or for the trial team's thinking to have gelled. As such, there's little basis to create a sophisticated issue hierarchy at this stage. Doing so would result in needless reworking, and would likely spook others on the trial team.

As the case proceeds towards trial, an issue outline can and should gain depth. Nonetheless, in even the most complicated case, it's rare to need an outline that's more than four levels deep. Three levels is sufficient to capture claims as the top level, the elements of each claim as the second, and arguments that can be made in support of each element as the third.

Pardon Our Permanent Dust

An issue analysis memo is, by design, an unending work in progress. If everyone on the trial team understands this fact, you'll be free to use the outline to foster communication and thinking.

On the other hand, if you fail to set expectations properly, you'll get a fraction of the possible benefit from this analysis tool. You'll tinker with the outline, but won't share it with clients and other trial team members for fear of their negative reactions to something rough hewn. Or, you'll limit the issues listed to the most obvious and the least controversial; definitely a case where the best is the enemy of the good.

In addition to making verbal efforts to set expectations, why not make an introduction that serves this purpose a part of every issue analysis memo? Here's a draft:

"Pardon Our Dust! Please note that the following issue analysis memo is a draft. We expect it to evolve substantially over the many months leading to trial. We use this document to capture even the roughest ideas so they may be evaluated, shared, and improved. You'll find that different portions of the outline are at varying stages of refinement. Again, please understand that this memo isn't intended to be a polished report, but rather a tool that helps us think and that provides a way to receive your valuable input. Thank you."

Include Key Factual Disputes

Most cases involve dozens, if not hundreds, of disputed facts. When you get right down to it, isn't a disputed fact in essence an issue? We claim the fact is true. The opposition claims it isn't, or vice versa. All parties can present evidence in an attempt to persuade the fact finder to see things the “right” way.

Does this mean every disputed fact belongs in your issue analysis memo? No. The vast majority aren't critical to the way the fact finder is likely to decide the case. They should simply be entered in your fact chronology and flagged as disputed by one party or another.

While the majority of disputed facts can be dealt with in a fact chronology, the handful that emerge as case lynchpins should be treated as issues and added to your outline.

¼ And Extralegal Issues, Too

The bulk of every issue analysis memo will be devoted to legal claims and the elements and arguments related to these claims. But your outline should also trap thinking regarding the extralegal dimensions that may influence the way jurors and even the judge respond to the case.

Such extralegal issues are typically tied to the emotional reactions evoked by the plaintiff, the prosecution, and/or the defendant. Has the plaintiff sustained such grievous injuries that jurors' cognitive processes could be swamped by sympathy? Does a corporate defendant have a stained reputation in the community? If so, your issue outline deserves an issue on the topic.

Extralegal issues don't have to be of the “Elephant in the Room” class. Assume, for example, that you represent the defendant in a toxic tort matter where the plaintiff's damage demands seem excessive. In such a case, there might be good cause to include a Plaintiff Greed issue in your outline.

Greed obviously isn't a legal issue in the case. And it certainly isn't one you're likely to argue at trial. However, by including a Greed issue in the analysis memo, you're in a position to consider what facts, if any, would prompt jurors to see the plaintiff as motivated by avarice.

Naming Issues

One challenge when working up an issue outline is how to phrase or name each issue. The first instinct of many new issue analysts is to use a descriptive statement as the issue's name, e.g., "Third National Bank Breached its Fiduciary Duty to Hawkins." There's nothing wrong with this approach per se, but why not skip the formality and adopt whatever name trial team members would find most natural to employ as they discuss the case?

Use my Conversation Test to evaluate name candidates. Plug each issue name you develop into the following sentence: "Did you learn anything important about Issue X at the Lang depo today?"

Let's try the Conversation Test using the hypothetical issue discussed above. "Did you learn anything important about Third National Bank Breached its Fiduciary Duty to Hawkins at the Lang depo today?" That flunks. How about "Did you learn anything about Fiduciary Duty at the Lang depo today?" Much better.

The move to simpler issue names is made at the expense of having the name itself indicate such details as who allegedly wronged whom. However, as explained further in the following topic, this knowledge is better captured in ways that won't result in a monster moniker.

Get Some Meat on the Bones

To make the most out of an issue analysis memo, it should be more than a skeleton outline of issue names. Flesh out your thinking by capturing a detailed description of each issue and argument. Explain legal jargon and, more importantly, provide a summary of the key evidence regarding the issue.

Even if you're the only attorney working on a case, it's still worth spending the few minutes necessary to generate these issue descriptions. They'll be of great value to your client and to expert witnesses. And the very process of writing up a description helps clarify your thinking.

Creating descriptions also provides a way to test the issues you've defined. If you struggle to pen a good description, it may well mean that the issue needs to be recast.

The Good, the Bad & the Ugly

In addition to trapping a description of each issue, write down a paragraph or two explaining how you feel the evidence on each issue cuts. Is our position on the issue weak or strong and why do you feel this way? While making such an evaluation isn't essential in the early months of a case, the sooner you move from simply describing the issues to also evaluating them, the better.

Sometimes we get queasy about making our evaluations explicit. Once our opinions are out it the open, others get to play the critic and black-hat our analysis.

Your team will appreciate the fact you're pushing the analysis process forward. You'll get kudos for sparking a debate that can either be held before trial or as part of a postmortem following a courtroom disaster.

Here's a strategy to employ if you agree that evaluating case issues is critical, but still don't want to be the first up to the tee. Why not conduct a brainstorming session devoted to evaluating the strengths and weaknesses of our position on each case issue?

By holding such a session, you get everyone to lay down their cards at the same time. An issue analysis memo provides both a structure to guide the meeting and a container for the group's thinking.

Off-Off-Broadway

While thinking about case issues, you'll surely come up with new twists that don't fit neatly into the existing issue hierarchy. Provide a home for these brainchilds by adding a top-level item named "Ideas," or something analogous, at the bottom of your issue outline. Visit the Ideas node frequently to see if the issues in it can be matured and eventually promoted into the primary outline structure.

Please don't misconstrue this recommendation as implying that only fully-formed, "perfect" issues deserve to appear elsewhere in the outline. As hopefully made clear earlier in this piece, your issue analysis memo should be considered an Off-Broadway production. Think of your Ideas node as being Off-Off-Broadway.

This Ideas node is another big plus made possible by using an outline to organize your issue thinking. Your extra-rough ideas are easily dumped into an area that can be collapsed and hidden from view when not in use.

Employed at Will

Since becoming an advocate for case analysis a decade or so back, I've been asked to critique a good number of issue analysis memos. A common problem I've observed is that once an issue or argument has been added to the outline, it's rarely, if ever, removed.

Even though an outline makes it possible to deal gracefully with a large number of issue ideas, there's no reason to clutter the memo with issues that aren't pulling their weight.

Barring the judge's granting of some portion of a Motion for Summary Judgment, the issues related to claims and elements of claims have a guarantee of lifetime employment in your outline. But that's not true for the arguments you list under each claim or for the extralegal dimensions you may add as well. These items are employed at will and can be terminated at any point. Give them a semi-annual review and make sure they should be retained.

If giving issues and arguments the pink slip makes you uncomfortable, you can always transfer them out of your primary outline and demote them below the Idea category described in the “Off-Off-Broadway” topic above.

Back to Top

---