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Jeffrey D. Eberhard Featured in the Portland Business Journal

4.01.2010

Jeff Eberhard was featured in the April 2, 2010 issue of the Portland Business Journal titled “Litigators need to argue a central theme at jury trials.” The Portland Business Journal asked Mr. Eberhard about the qualities of good civil litigators and how they arrive at certain decisions during the course of litigation.

1. What qualities and expertise must an effective litigator possess?
An effective litigator must have the ability to develop a clear and concise central theme at the outset of the case.  This requires discipline because oftentimes you will have to set aside other possible winning arguments in order to ensure that just one main central theme is presented to the jury. 

In law school, students are taught that they can make the “but even if” argument.  Juries do not like “but even if” arguments.  Having too many themes can be confusing to a jury and can negate the effectiveness of the attorney’s entire argument. 

It takes a significant amount of expertise and experience in order to choose the best central theme, and it requires even more expertise and experience to disregard other themes that have a small chance of success, but will make the case confusing or overly complicated. 

2. What factors go into deciding when to settle and when to proceed to trial?
The choice to settle or proceed to trial is always the client’s.  The role of the litigator is to use his or her experience and expertise to make sure the case is in the best possible position at each stage of the litigation, to properly evaluate the risks and rewards of each option, and to recommend the best course of action (with the client’s goals firmly in mind).

In essence, it is the attorneys’ role to provide advice and counsel on the likelihood of success if this case is presented to a jury.  If the settlement discussions are in the range of the likely jury verdict, then settlement is the best option.  In order to provide this advice, the attorney must have significant expertise in preparing and trying cases as well as knowledge of the facts and law that applies to the client’s legal dispute.

We also consider the risk of unexpected results, the expense of trial, and, among other factors the opposing attorney’s reputation as a litigator and as a negotiator, when recommending a reasonable settlement value to our client. 

3. What are a litigator’s goals when conducting a deposition?
The most obvious purpose is to gather additional information and find out what the witness knows. 

Another common goal is to “lock in” a witness’ testimony on critical issues.  Cases can take months or years to resolve, while memories fade over time, so it is important to get a person’s testimony under oath in a deposition.  If you suspect that an opposing witness will lie – and can later prove the testimony was a lie – “locking in” that dishonest testimony to use against the other side during trial (think “Perry Mason” moment) or settlement negotiations is just as important as locking in good testimony.

Another goal of a deposition may be to assist in early settlement.  In the case of opposing parties and hostile witnesses, depositions also provide the only opportunity for the litigator to evaluate first-hand how the witness will present if called at trial .

4. Under what circumstances will litigators seek dismissal of complaints?
We try to resolve cases at the earliest opportunity.  One of the first things we look for is whether we have an argument that the complaint itself is legally inadequate, meaning the facts described in the complaint do not support the type of legal claims being made in the complaint.  If the opposing attorney will not voluntarily dismiss, we will file a motion to dismiss with the court. 
We also analyze whether the complaint can be dismissed under a variety of what could be thought of as “technical” legal defenses. 

For example, a complaint that would otherwise state a valid claim, but was filed with the court after the statute of limitations had expired, is vulnerable to dismissal.

Finally, we sometimes find after investigating the case through the discovery process that the opposing party has made claims for which they have no admissible proof.  In those cases we will file what is called a motion for summary judgment. 

5. Without endorsing software brands, etc., what are some of tools used by lawyers to help clients respond to discovery requests and to help sift through material produced by the opponent?
Litigators often use electronic-document repositories and document review software to organize and search through materials produced in discovery during large, document intensive cases.

Paper documents are scanned and downloaded into litigation support repositories, which normally consist of grid-based systems that offer scalability, speed, multi-language support and other capabilities to make discovery more effective and efficient.

Document review software allows the litigator to quickly scan through the stored documents to identify and review any that address a specific issue, which is particularly useful when responding to discovery requests or preparing for deposition or trial.

Full version of the article can be found on the Portland Business Journal’s website http://portland.bizjournals.com/portland/stories/2010/04/05/focus6.html.

Smith Freed & Eberhard, P.C is a litigation law firm based in Portland, Oregon. Founded in 1987, our firm’s primary focus in defending insurance companies and self-insured businesses. Smith Freed & Eberhard handles a variety of cases throughout Oregon and Washington. Further information regarding the firm can be found at www.smithfreed.com.

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