The word "KISS" is commonly used as an acronym for "Keep it Simple, Stupid!"
Justice Antonin Scalia was in the Bay Area recently, speaking to students at the University of San Francisco School of Law. On the subject of trial advocacy he told them that they should learn how to take a complex case and make it sound simple.
Unfortunately too many lawyers do just the opposite. They will take a simple case and try to see how complicated they can make it. In the process they accumulate many billable hours as well as a store of information that can be used to overwhelm the court. But as one judge said to counsel during a case that I was trying: "If you keep gilding the lily, pretty soon nobody will be able to see it!"
In this day and age of electronic discovery and the vanishing trial, when almost all cases settle, the KISS principle has to be applied to the entire litigation process. In complex cases especially, the amount of electronically stored information that parties and witnesses accumulate can be staggering. Just think about all of the trivia that can be stored in mobile devices and wearable technology.
Discovery costs need to be kept under control by applying the principle of proportionality. Counsel should focus on discovering the key pieces of information that can be used during negotiation to persuade the other side (and perhaps the client as well) to settle.
Or if the case fails to settle, then to win at trial.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.