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Creating & Using Issue Analysis Memos: Part 2

by Greg Krehel

July 2006

Putting Issue Analysis Memos to Work

Let's now shift gears from crafting an effective issue analysis memo to using it. Here are some of the ways an issue and argument outline can be put to work on your behalf.

 

Thinking Clarified

What's the most important reason to make issue analysis memos a standard practice?

Creating this document crystallizes your personal thinking about a case.

Our minds are incredible thinking machines. But try to consider more than a handful of items at once and that amazing mind of yours is sure to be overwhelmed. Getting thinking out of your head and into an issue analysis memo allows you to deal with case issues in mind-sized bites. Your memo makes it possible to back up from your thinking so you can reflect on and improve it.

 

Trial Team Educated

Want a great way to give expert witnesses and new trial team members a snapshot of the case?

Use your issue analysis memo as an instructional aid -- by sending it along to be read independently or by employing it as a prop that structures a verbal case overview. If the case warrants, why not turn its issue outline into a PowerPoint presentation?

 

Consensus Built

Interested in a tool that helps the trial team achieve a common understanding regarding issues and arguments -- both what they are and how they cut?

An issue analysis memo acts as a central repository for the team’s thinking and makes areas of agreement and disagreement readily apparent. Once it’s clear where thinking diverges, the task of reaching consensus becomes far easier.

 

Demonstratives Refined

Interested in making the most of your courtroom visuals while also keeping the cost of these aids under control?

Use your issue analysis memo to validate demonstrative evidence ideas before they’re produced for use in court. How? This benefit isn't as obvious as the ones covered to this point, so let me explain in some detail.

Before giving the green light to start production of courtroom graphics, print out a copy of your issue analysis memo and complete the following steps:

  1. Obtain a list of all demonstrative evidence ideas the team plans to have produced as final graphics.

  2. For each item on the list of planned demonstratives, review your issue analysis memo and determine which issues the visual will help communicate. Jot the name of these issues down next to the name of the visual.

  3. When you bump into a visual that doesn't seem to support any issue, ask what purpose that graphic is going to serve. If you don't come up with a darn good answer, strike the idea. Smile -- you've just saved $500 or more in graphics costs.

  4. When you finish the issue evaluation of all demonstrative ideas, tally the number of visuals that relate to each issue. Then review these counts to see if they make sense. It’s a good bet you'll find that some issues have too many visuals devoted to them and that others are naked of demonstrative support. If that's true, eliminate the weakest graphics planned for issues where things went overboard and cook up some new demonstratives for those issue areas starving for visual attention.

I'm not suggesting that every issue must have demonstratives that help communicate our position on it. Nor am I suggesting that visuals should be equally distributed across issues. However, by making conscious choices about how demonstratives are distributed across case issues, you'll end up with a particularly persuasive set of courtroom graphics.

 

New Staff Members Productive

Could you use a method for leveraging the value of new staff members, while also providing them with superb training?

Turn your issue analysis memos into a baton that passes analysis responsibility along to your new hires. Here's the process:

  1. Ask new staff to read a handful of issue analysis memos from prior cases (and maybe this article as well). Answer their questions regarding them.

  2. Give these new team members the Complaint, Answer and any other appropriate paper for an ongoing matter. However, do not give them the current issue analysis memo for this case. Have them draft their own issue outline for the matter. Take a red pen to their efforts, and then sit with them to explain the mark-up. Finally, give them the actual issue analysis memo for the case so they may compare it to their draft.

  3. Repeat Step 2 once or twice.

  4. Assign your apprentice issue analysts to a brand new case that's relatively simple and for which no issue analysis memo yet exists. Have the new staff create the first draft. Critique what they've done and have them update. Make them responsible for pushing the issue analysis memo forward over the life of the matter.

 

Chronology Fleshed Out

Interested in a way to fill in gaps in your fact chronology?

The following issue-driven approach to brainstorming on case facts makes it easy to develop a comprehensive chronology. And, as explained below, if this method is employed early in a case, it can produce results that are invaluable during discovery.

Here's how to use your issue analysis memos to drive fact brainstorming:

  1. Open a memo and focus on the first issue.

  2. Search your mind for any and all facts that support your position on this issue. Enter each of them into your fact chronology. Assuming discovery is still open when you conduct this brainstorming exercise, don't limit your thinking to facts with solid sources. By getting down prospective facts, i.e., those with undetermined sources, you’re developing a shopping list that can guide your discovery efforts.

  3. When you’ve exhausted the facts that support your position on the issue, step into the opposition's shoes and conduct the exercise from their point of view. Again, push the envelope.

  4. Repeat steps 2 and 3 for each issue in your outline.

Give this fact brainstorming tactic a spin as soon as you draft your first issue analysis memo. I believe you'll be very impressed by the results.

 

Facts and Documents Organized

How else can an issue analysis memo assist in other case analysis efforts?

  1. It can improve the fact chronologies and document indexes that (I sure hope) you're creating for each case.

  2. Include a Linked Issues column in your fact chronology spreadsheet. Use it to list the names of the issues on which each fact bears. Add an equivalent column to your document index, and capture your assessment of the issues to which each document relates.

  3. Assuming your fact chronology lives in a database program, once facts have been linked to issues, you'll be able to filter the fact display down from all facts to just those relevant to a particular issue. Ditto for the document index.

  4. When you enhance a fact chronology and a document index as described above, you’re simultaneously improving issue analysis by making it easy to identify the specific evidence related to each claim.

  5. Warning: I've seen a fair number of trial teams issue-code facts and documents without first having carefully defined the case issues themselves. Talk about a recipe for disaster! Be sure to work up a solid issue analysis memo before someone starts issue coding facts and documents willy-nilly.

 

Future Cases Leveraged

Could you use an analysis tool that becomes all the more valuable over time?

If you make issue outlines standard practice, you'll have one. Sure, issue analysis memos have a dramatic impact on the cases for which they're originally created. But they also become a fantastic resource you’ll turn to again and again in future matters. Work on the next analogous case gets off to a faster start as you have a library of argument ideas to fuel the issue analysis process.

 

Conclusion

As I hope you can tell by this point, I'm in favor of thinking hard about cases. However, let me wrap up by arguing against thinking just this once: Please don't spend another minute thinking about the issue analysis memo concept. Act!

Pick a case and hack out the first draft of an issue analysis memo for it today.

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Greg Krehel is co-founder and CEO of CaseSoft. Prior to starting CaseSoft in 1996, Greg spent 15 years managing trial consulting firms that offered jury research and demonstrative evidence preparation services. Greg has written eight other white papers on case analysis, including “Chronology Best Practices,” 'The Bell Curve & Document Indexing/Imaging," and “Creating & Using Issue Analysis Memos." PDF