Copyright Dirk Brauckmann,
 Mühlenstr. 4, 28790 Schwanewede
 Germany

Address of lawyer involved:
William T. DelHagen, Law Officer
Murchison & Cumming, LLP
801 South Grand Avenue, 9th Floor
Los Angeles, California 90017
Telephone: 213-623-7400
Facsimile: 213-623-6336
E-Mail: wdelhagen@murchisonlaw.com

These thoughts I wrote down by recollection after a 5-years trial  in California USA against an international acting trust from an other foreign country. They were handed over to our very professional attorneys William T. DelHagen and Jeffrey Horwith, Los Angeles, as an assistance and support for possible further trials with German clients.

Predecision: Before you start a litigation in the USA, you should honestly and fair answer the question to yourself, whether your chance to win the case is bigger than 50%. If not so, let it be, except you are the defendant of a complaint against you or your company. While it´s true that every process is a good job for American lawyers (Bill and Jeff may apologize), nevertheless the decision is made by nobodyelse than by yourself, as long as the litigation didn´t start.

Preestimate of costs: Think about whether you will survive the process as a matter of costs. Costs of lawyers, experts, travelling costs and costs of witnesses were increasing for our case (basic damage excluding legal simple interest US-$ 5.5 Mio.) up to a total amount of US-$ 1.5 Mio. during a period of 5 years. Not included in these costs were costs for the own staff for preparation of documents, copying etc. which caused a big waste of time.

Timeschedule: Don´t believe that you will get reimbursement for a possible suffered loss on a short run. You have to be aware of the fact that the way to a Jury-decision will need a lot of time.

Problems of language: Although english might be your second mother tongue think about whether your important witnesses are roughly familiar with the english language. A cross examination by assistance of an interpreter makes the jury yawning instead of listening.

German partner for the trial
You have to name or to hire a taughtable analytic thinking employee with experiences in legal questions, as far as you don´t want to prepare the case by your own. But dont give the order to a German lawyer as far as he doesn´t have any experience with US-litigations. The man/woman has to work very hard in future.

If you, in the meantime, didn´t loose your intention for an USA-Trial, then start. At the end you will get the feeling of Christoph Columbus, who has discovered America. But be prepared on rough sea. May be at the end the Caribbean will wave, may be that your vessel gets lost at the Bermudas.

Before I explain the single steps of the litigation, I want to show some basic differences of preparation and leading the process; you may get a better feeling and comprehension for your American lawyer´s requests in future.

In contrast to German process tactics, where both parties only issue what is good for their own position and where the later decision is made only acccording to these documents, the American parties want to get the total mass of documents, notebooks, Computer-Files, photos and other pieces of evidence which are available for this case before they start. You should negotiate a special lump- sum purchase order with the owner of the next copy shop, which has to take over this lousy work. You should prepare him that his total capacity of the next 4 weeks is booked for this job. May be that he will grant you with a special discount on his price. He will become an important subsupplier for you in the future.

Don´t believe that only one document can be held secret as far as it was produced on this world during the past. A piece of paper once produced is like a virus. It somewhere comes up, in the worst case during the trial and served by the other party during cross examination of yourself. Also if you have deleted your own exhibit, you cannot be sure that these information is not available anylonger. Be prepared for bad hours during cross examination regarding the uncomfortable parts of your case.

Professional American lawyers are terrific successful and skilful in investigations of documents. For the lawyers it´s a great game, for you it can be a desaster.
 

And now the single steps:

Start discussion of the case together with your attorney but don´t try to be a better fellow of tactics in litigations. Your lawyer has the knowledge what is good for Jurys, not you . So trust him, that he will handle the case in a good procedure, otherwise don´t start with him. In this case he is the manager and you are the employee. Don´t try to dominate him. If he would agree in dominating himself, he will not be a real fighter for your case. He will ask you many questions, give him the best responses by your recollection, in any case you should ask details from your staff, instead of giving him wrong answers, because after this discussion your lawyer is going to make his own picture of the case.To correct his personal basic picture later on is fairly unpossible. The picture of the case should be clear in basic assumptions and shouldn´t be withdrawn.

 After this discussion the lawyer is going to prepare the written complaint. The single items of the complaint have to be defined on a clear way. This has to be done carefully and in detail. Order your commercial staff by threatening them of immediate dismissal to take care of that no double-charging takes place when your claims for the complaint are set up. The other party will investigate these double-chargings under guarantee and will later exploit this with great fun in front of the Jury. Also if you have produced 50.000 pages of documents and only 5 pages of double charging are investigated, the emotional damage is much higher at that moment than the economic value of this double-charging. Check it by your own if necessary. You will be asked for your competence, to avoid such mistakes, in worst case they will assume fraud by your own.

 The calculation of your claim has to be checked up by any normal thinking person. In any case avoid to blow up your claims. The court room will not be an oriental bazaar, where you can let yourself beaten down to a lower price. The highest value of the game is credibility. If you have taken a 5 toothed fork by calculating your figures you want to sink into the ground by investigating this matter in front of the Jury. The other party will continue to reproach this matter to you and you will recall my words with comfort if you are able to respond with credibility. I for myself have thanked God during cross examination that the other party was not able to reproach to me such a behaviour beside minor obvious mistakes. But they have tried it very often. Otherwise it is not necessary to minimize your claims. A damage which evidently has happened can be claimed.

 The tremendous product liability claims which you may have heard about American complaints of normal citizens against American companies may not be the scale for yourself. The assumption regarding you is that you are a commercial expert.

Moreover, consider that American citizens cannot imagine the very high Overhead-costs of Old Germany.
Overhead mark-ups of more than 100% are inconceivable for American people.

Take care that invoices and costs of your attorney will not be charged to the other party. That would be a heavy legal mistake in the USA.

Conclusion: fair calculation of your claims.

After sufficient information for the complaint and the calculated claims
your lawyer will prepare the written complaint and will send it to you for your approval. You should take enough time for reading it. Once more think about each and every item of your claim, have further discussions with your staff whether you and your company will stand firm with your claims. Discuss possible changes with your lawyer and agree upon the written complaint afterwards. After this was done you cannot pull back your litigation as far as you don´t want to loose much money by breaking off the case and loosing the cross complaint without any trial.

Afterwards your lawyer will serve the relevant American court with the complaint who will determine a judge for preparing the case (pre trial discovery). It is possible that the preparation of the case is done by an other judge than the judge who later is leading the trial itself.

The complaint is served to the other party who by chance is preparing a cross complaint. This will be served to you by the court via your lawyer. The cross complaint will probably amount to a similar level than your own claim. The evidence has to be proved by the other party. Don´t be exited about the level of the claim even then when you are feeling a sudden unconsciousness.

After that the lawyers of both parties will ask the particular other party to give them every and all existing documents which are in evidence with the case. They have to be served via the court. The list of possible objects with information character for itself can lead to a fully written page. You don´t believe what is possible in this matter. At this point for the first time you will start thinking whether your decision of beginning this litigation was correct. But I hope you didn´t neglect to negotiate the special lump sum purchase order with the next copy shop which will be set in force at this moment.

Now carry all files of documents, all personal notebooks, possible diaries etc. (s.above) which are in evidence with the case to your copyshop and order the copyservice to copy all documents twice in the same sequence (for your lawyer and the lawyer of the other party).

Save your lawyer from copywork of the 2. copy. It will only become more expensive. Moreover don´t forget your personal
documents from your safe if they are evident for your case, as far as you cannot swear by heart that no 2. human being on this world has ever seen it before.

Think about my comparison of the virus.

After the copywork don´t forget to check whether the sequence of the documents is right. Your meditation of Item 6 about correctness of your decision might be repeated.

Before you are going to send both sets of documents to your lawyer don´t forget to collect all copied original documents (files of documents, pieces of evidence, photos etc) in a seperate and lockable room. This room will be your depository for the following years up to the end of the case. Don´t remove any document from this room. Try to organize the mass of paperwork like a librarian or try to get it organized by your people.

As far as you have asked one of your employees to be the German contact person for your lawyer and as far he is able to use a personal computer give him the order to put all documents into a database of your case. Each piece of paper which you have served to the court has to be put in. May be you are knowing a young student or a trainee, who is willing to earn some money with this lousy job but don´t hesitate to order it now. Later on during immediate preparation of the case you will thank God if you are able to find your documents in your PC or Notebook by quick search. Don´t forget to give each page a special Exhibit-No. for correct identifying of the document. The definitions in the database should contain No. of Exhibit, sender of document, receiver of document, short description of the contents, place of storage (Box-No.) in the minimum. For searching documents the different structural items must match together and should be able to be combined.

After both lawyers have got all (?!!) documents from the own party and the other the first mass-production will start for the lawyers. You will get a huge questionnaire from the other party via the court and your lawyer. Your own lawyer will serve a similar questionnaire to the other party. The period of discovery starts. Don´t believe that your lawyer will respond the questionnaire instead of you. He will beware of that. You and your staff have to act. Every question has to be responded truthfully. Make some notes into the questionnaire who is the expert in your company for the special question. May be it´s necessary to name him later as a witness. You for yourself have to sign a so called verification and to confirm that you got all what you have read and that your reponses are true.

Produce copies of the questions and the answers for yourself and send them all back to your lawyer. Don´t be surprised afterwards, when he now is producing something what has nothing or only little to do with your difficult and tremendous work before. Your lawyer is serving only those responses which make sense under consideration of processual tactics. All other questions will also get a response but he will name them overbroad, harassing, burdensome oppressive or irrelevant and will try to deny a real answer. The other party will do it on the same way.

The other party will now start a second attempt for getting an answer of the unsufficient or not responded questions. It´s called motion to discovery. It may be that you will get a second questionnaire from your lawyer regarding these questions. Your own question will be: “What does he get the money for?” But give him the responses as true as you can.
Your lawyer will now complete some additional questions but don´t think that all will be responded.

 For good training you have to repeat all these erxercises in case of a possible crosscomplaint. It´s called discovery
 of crosscomplaint. At this time the crosscomplaint is still a seperate case. Give your responses to your lawyer as well as before. The quantitiy of the questionnaire depends on the single case but don´t be surprised if you have to give written responses on 400 to 500 questions for your complaint and the crosscomplaint.

Let´s have a little break in thinking about courtcases. If I have spoken to you, dear reader, personally up to now I really didn´t believe that you will do the whole work and preparation by your own. I also didn´t believe that this will be done by your assistant who was named as the German partner of your lawyer. You have to involve your staff. So you have to prepare meetings and discussions with your staff as far as they were involved in the case. Coordinated discussions by all of you and responding the 400 to 500 questions. Don´t believe that all of your employees have the same opinion regarding the questions. But believe, it would be a great hit for the other party when they would get from your company two different and possibly contrary answers for the same question. What you have to do is, to check the collected answers whether they are comprehensible and logical. May be you have to check them together with your employees in a special discussion.

No question, your lawyer too will make a crosscheck but of course it is much better if you are sure that no contrary answers will leave your company.

After the mass of paperwork and pieces of evidence have been served to the other party via the lawyers and the court and after you have responded all questions well behaved and with a lot of time you can change to normal business for the next time. Your lawyer and the lawyer of the other party will now continue their discovery. Witnesses will be asked everyone separately under recording all in detail by a court reporter - witnesses of your side as well as witnesses of the other party. This is called deposition. Normally the witnesses have to travel to the USA for their deposition. In case of denying the journey or in case the witnesses are seriously prevented the lawyers will travel around the world if necessary to exercise the deposition. May be, it will cost a lot of money, but don´t complain. He has to be absolutly fit for the case. If he is good, he at the end will know your case better than you yourself.

You for yourself can think about whether it will be usefull to negotiate a substantial discount for the flights with a well known German carrier. May be your travelling office has already discovered the best prices for the dozens of flights to the USA which will burden your budget for travelling only for testimonies before the case will start. Don´t spend too many thoughts about the increasing costs. I hope you want to win the case as well as before. And your serious thoughts regarding the cost were finished when you started the case, didn´t they?

After termination of the depositions which possibly needs months, after getting all expert opinions, after hearing of experts, after many orders to copyshops and database-offices and after ordering a so called economist, who will check the economic connections regarding plausibility and calculation  by legal rules, after changing the calculation if necessary and increasing the value of your claim by legal simple interest of 10%, the courtcase is prepared to start. May be you are very impatient to start and to win the case. Nevertheless, you have to practise patience. Contrary to Germany where you will get a quick first date in front of the court but then have to wait over months for the next date, in the USA a civil courtcase, when it once has started, will continue day by day in total. On the other hand you probably have to wait for the beginning of your case for more than 1 year. In our case the court had no courtroom for ¾ of a year. So train yourself in patience. Because your lawyer has engaged himself be sure he is going to serve the case to the court. So he will be interested in getting a “battle-field” from the court-administration in time.

Assuming he finally was successful in getting a courtroom, assuming he has prepared all necessary materials for evidence, as special boards, overhead-films etc. with a lot of costs but nevertheless in an efficient way then he suddenly will give you the happy information that the judge was determined by the court. The case is ready for take-off.

 Before starting the case itself a jury has to be determined. For this job all American citizens are able to apply for as far as they had no legal problems in the past. In our case the lawyers had to choose a jury from 130 candidates who all had to answer a questionnaire by truth. Approximately 10% of them have to be selected by the lawyers of the two parties on an alternating way. Both parties will pay attention that the members of the jury have no connection or relation to one of the parties neither direct nor emotional. They have to accept a personal examination by the lawyers. The members of the jury normally have no technical experience. It´s also not necessary for them to have a special education. So the jury is absolutly unprejudiced.

During the case the judge has to pay attention that no legal mistakes take place. Moreover he is writing down all the numbers of the exhibits which will be served to the court during the official  courtcase and he has to decide whether objections of the own or the other party have to be overruled or sustained.

For the official court case the lawyers of both parties will order some officials of the single company and their witnesses. Because a civil lawsuit may possibly need many weeks also if it continues day by day costs for travelling can not be avoided. I think you didn´t forget to close a special agreement with your carrier.

Your lawyer has rented a total floor in a reasonable hotel close to the court for the next two or three months for himself, his employees and his necessary witnesses and has arranged his personal headquarter for your - I´m sorry - his case. Boxes with files and Paperwork, only controlled by computers and databases are in the middle of all. It´s surprising but it will work. The courtcase can begin.

 In the following paragraphs you will get some impressions of that litigation in which I personally was involved. Each name was deleted. The case has been finished legally binding whithout further appeal.
 

 Trial Impressions

 Start your journey so early that in minimum you have one day time to be prepared by your lawyer and to get used to the jetlag and the time difference.

Order a hotelroom close to the court if possible.

The courtroom has a size of approx. 15 m times 15m and filled as following:

The jury contents of 14 members who partly understand what happens but some of them are obviously overstrained especially regarding technical details. They are all normal citizens who were choosen by both parties. No one of the jury has special connections or relations to one of the both parties. The jury doesn´t ask anything but is only listening and making some notices. When the jury comes into the courtroom all present people have to rise. The same will happen when the jury is leaving the room. The judge gives the jury some formal instructions. Nobody is allowed to have conversations with the jury, also not during a break.

 The judge is named “Your Honour” during the case. He has to pay attention that all documents served during the case will be registrated. He decides whether objections will be overruled or whether they are sustained. In case an objection of your own lawyer is overruled you have to give a response to the question of the other lawyer if the objections are sustained you don´t need to answer. You should never contradict a decision of the judge regarding formal matters or matters of the case.

Before starting the testimony the witness is put under an oath by the court attendant. The testimony may need 1-2 days, with important witnesses up to 4 days and even longer. Before his testimony begins each witness should have read with intention the minutes of his first deposition by the lawyer of the other party for better recollection what he himself has said in the first deposition. Moreover he should prepare himself regarding the special items of himself. If there is time enough the own lawyer will go through all important arguments and pieces of evidence together with his witness

A day in court (09:30-16:00) is interrupted by a short break during the morning, a longer break for lunch and a short break during the afternoon.

 The witness should sit in a relaxed posture. I would recommend to sit in a slightly bent forward position with slightly folded hands. The witness should train to look to the lawyer and not looking away nervously. Stop crossing your arms as a matter of resistance.

During testimony the witness will be introduced by the own lawyer and led by appropriate questions to responses which are usefull for the own party (direct examination). These questions normaly can be answered with yes or no or correct without any doubt. Probably additional explanations will be asked, but these explanations should be short and a matter-of-fact.

The information of the jury about the case runs by question and answer between the lawyer and the single witness and by serving of documents which are shown to the witness by asking him whether he is knowing the document or not. The own lawyer is leading the witness to the expected answers. Beware yourself from own stories and explanations except you explicitly are asked for them.

In case the lawyer of the other party tries during the following cross examination to show that you are a witness of your own company don´t hesitate to agree with jollity. The jury doesn´t expect that you are neutral.

Pay attention with accuracy what is asked from the lawyer of the other party. Especially be aware of double-questions which you have to agree in one part but to deny in the second part. This is a tactical attempt for making you responsible for desired answers which indeed you didn´t want to give. In this case you should´t answer only with yes or no but you have to devide your answer accordingly.

By example: Do you recall that ..........( to agree) and wouldn´t you say that this is ...........(to deny).

If it´s possible for you to get the jury laughing by funny but not cheeky answers you will get sympathy and will make some points. By example: Question: Wouldn´t you think, Mr. x that other party would have felt comfortable, if they would have got these documents?
Answer: I don´t know, Sir, whether other party is feeling comfortable by getting a mass of documents.

If you really don´t recall you may answer “I don´t recall”. But it looks incredible, if you don´t recall anything. You should avoid the impression, that you want to block or obstruct all questions. If a document is served to you with your sign which shall support your recollection, you shouldn´t deny the recollection, but you can answer that you don´t remember the special circumstances regarding this document, if you really don´t know them.

If the witness don´t understand a question or a special word as a matter of translation he shouldn´t hesitate to ask what the lawyer really meant by that. The lawyer will try to give an other explanation.

You may produce and use for your own anwers short notices (esp. for complicated calculations). But you have to show them.

It is important that a witness is thinking about his answers in his mind and will give the responses afterwards. He shouldn´t try to formulate his answers by uncontrolled speaking.  Because in this case he will say something wrong or give a bad formulation too quick and uncontrolled. Don´t think on your lips! You will have time enough for answering.

The best answer is, what a normal thinking citizen with a normal human brain and normal legal feeling is expecting. Between the question of the lawyer of the other party and your own answer should ever be a little break for the possibility of an objection of your own lawyer.

The tactic of the other lawyer will ever be, to lead you as a witness into incredibility. He will confront you with former responses of yourself and documents which may apparently prove the opposite of the given answer.

Moreover responses from the first deposition will be taken by the other lawyer and possibly asked for a second time. If your response is contrary to the first one don´t be anxious to explain the difference. At that time a possible explanation can be that at the first time the response was given by recollection but in the meantime you have used your files and have investigated that you have to revise your first answer. It´s very important that the jury doesn´t get the feeling that you want to evade the response. But on the other hand don´t confirm something what you really didn´t experience or know by yourself. For example it is not necessary to know about other departments of your company what there was done, thought or said. Not to know is better than to answer something wrong.

Sometimes you will get the feeling that the other lawyer is not interested in your response. He only wanted to ask his question.  He will have some discussions with his assistants or is looking for the next document. In this case don´t answer and wait if the answer really is requested by the other lawyer.

On the other hand the other lawyer  tries to move you to a quick and rash answer by lifting his arms, especially if he wants to insinuate you something. In this case the witness shouldn´t answer on a quick and harmful way, but give his response in a composed and calm manner. If an insinuation is really wrong don´t hesitate to answer with “wrong”  or “incorrect” and afterwards give an explanation.

Redirect examination by the own lawyer: After cross-examination with the other lawyer has finished, your own lawyer will start a redirect examination.

In this examination your lawyer will try to correct those responses from cross-examination which are able to be corrected. He will serve some additional pieces of evidence or will ask you additional questions for weaken a possible harmful impression of the cross-examination. May be that he will bring in an other important item which the jury shall get into good recollection. At this time the testimony of a witness normally has come to the end. Probably the other lawyer will also ask some more questions but it only will be a small number of questions.

Excuse of the witness: After the direct and cross examinations both lawyers will be asked whether they have some more questions. If not, the witness will be excused. As far as he is in the court-room he can be recalled as a witness. But it has to be a very important reason for recalling a witness. Therefore as a matter of tactical reasons the witness should leave the court-room after he is excused.

If you have passed all this you will understand my comparison with Christoph Columbus, who has discovered America, and you will not feel strange with this comparison anylonger. For myself I only can wish you:

 Happy Trial
 

California USA, May 1996

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