ExposureBlog

When I first began my consulting business, I would take notes on whatever paper was handy at the time: pocket notebooks, 8-1/2 x 11 college-ruled books, yellow pads, you-name-it.  During the time I worked with the federal government I began the practice of keeping what I called a “schedule book,” which was mostly a to-do list.  Over time, it  became the hard documentation for countless phone numbers, contacts and random thoughts regarding my projects.  When I started up my business I used the “schedule book” to keep track of my progress in my cases.

Then came the day I received a subpoena deuces tecum from the opposing counsel on a case I was working on.  Roughly translated, it means: come meet with us. . .and bring along every note you have that has to do with this case.   That meant, of course, that I had to hand over a stack of pocket notes, three or four different kinds of regular notebook paper. . .and worst of all, my schedule book.  My schedule book, you see, had notes I had written down regarding previous cases.  Not good at all. 

As it turned out, the case settled before my deposition took place, so no one got to see the schedule book.  But that was the day I quit writing notes about cases in the schedule book. 

From that day on, the notes would all be on yellow legal pads, which I would number and clamp into a binder along with the case worksheet. Now, when I receive the deuces tecum, I just take the case binder.

Of course, no system is perfect; the one flaw for this one is that sometimes–rarely, but sometimes–not everything I take to the deposition comes back.  Technically, it goes from opposing counsel’s office to the court reporter, sometimes back to counsel’s office, then back to the court reporter, and then—maybe weeks later—back to me.   In the process, books, photos and documents have gone missing, never to return.   In preparation for the day the binder containing the handwritten notes vanishes, I had taken to copying the notes into a computer file.  While this helped me to understand the information and clarify the issues, it was also time-consuming.  I was faced with a choice: copy every note I had taken, or risk the notes vanishing at some point.  In a recent attempt to resolve the problem I created an “issues” page for each case, where I list the salient points.  In doing so, I discovered that most cases seem to boil down to just a few issues—lack of training, lack of communication, inappropriate procedures, inadequate instructions for the job, etc.

FLYTs

Then there are the Post-It Notes (registered trademark) flyts. . .”Funny Little Yellow Things” as one lawyer called them.  I read depositions very carefully and mark important passages with yellow post-it notes.  Typically, I will write on these FLYTs statements like “Critical” “Very Important!!!!” “Check this”, etc.   Interestingly, the meaning of the notes change as the deposition progresses—the early FLYTs reveal the location of information central to the issue, while the later FLYTs mark passages that contradict or underscore prior testimony or the testimony of other witnesses.  In other words, all FLYTs are not equal in importance, and some have no importance whatsoever except to mark a passage that I have already read. 

A well-examined document may have hundreds of FLYTs sticking out from all exposed edges–forcing the opposing counsel to read each and every one.  Only rarely have I been asked about the comments found on the FLYTs—because sometimes it’s unreliable.  A passage that I marked as “critical” when I began reading the document may turn out to be far less important by the time I finish reading it.  Of course, I’m not about to go back and cross through the word “critical” on such a FLYT—who knows when another doc could provide info that would support and thus revive the importance of the original passage.  When looking through case documents information emerges slowly.  A comment created in the final analysis may be 180 degrees different than a comment created during the initial stages of the investigation.

Every investigation and analysis has its share of dead-ends, but the documentation leading to those dead-ends should be included in the total package, if only to answer the opposing counsel’s question, “have you thought of this?”