THE RABBIT HOLE Why does it always seem the defense seems to be one step ahead of you? We stay up late, sometimes lose sleep, and all we can think is how can we preempt or preoccupy the defense. Quite often they have more money, they have more manpower, and it begins to take on a life of its own, what do you do?
A rarely used strategy is the “rabbit hole”. Most of us are aware of the feeling of descending into a “hole” in pursuit of an answer which leads to other pursuits, problems or questions. We get so deep into a rabbit hole that we forget why we started, think Alice In Wonderland or any youtubesearch! Applying this theme to litigation is where the lawyer begins to concentrate on an issue, and where it leads, that really has no relevance in the case. It could be an objection at deposition or something as simple as the location of a deposition that will lead to multiple motions, briefs, and oral arguments taking you away from what the case is about. Rabbit Holes cause the plaintiff attorney to concentrate on issues that do not advance the story or the case.
Why not flip the script? Use the rabbit hole against the defense. Send them requests for admissions on an issue that may not matter in your case. In a car wreck, perhaps you request the defendant driver's cell phone records, even though there is no evidence they were on their phone. The defense will begin seeking protective orders and filing motions. In other words, they will spend time dealing with a cell phone issue which may not be part of the case. Other examples include (assuming not a key part of your case) negligent credentialing or hiring issues in Medical Malpractice cases and requesting tax returns of the owners of a nursing home.
Types of requests that can begin a Rabbit Hole are Specific Interrogatories, Requests for Admissions, Requests for Production of Documents, and as trial gets closer Motions in Limine.
It is essential to always advance your story with all your actions, whether it be a deposition, discovery, or even evidence. Now is the time, rather than get sucked into the rabbit hole, flip it, put the defendants in the rabbit hole. This is where you can win despite the large firm and insurance carrier having more money and resources. They can never outthink the Plaintiff Lawyer when we strategize in everything we do.
