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The complaint lands on your desk or you walk into your initial meeting with the client. What do you do now? Answer the following basic questions to develop a roadmap for litigation that will allow you to help your client obtain a favorable resolution of the dispute.
What is the case about?
The first task is to determine what the case is about. While this may seem self-evident, it is the most important thing you will do at the beginning of the case. Your assessment of what the case is about will continue to evolve as you conduct discovery and prepare for trial or other resolution of the dispute.
Read the complaint or listen to your client tell their story. This is not the time to ask questions. Instead, this is the time to absorb, take notes, highlight passages in the complaint, and note potential follow-up questions. But above everything - do not come to any conclusions right now!
Now think about what you just read or heard. Have a conversation with your client or, if you are dealing with a complaint, have a "conversation" with the pleading. Read between the lines of what either is saying. Are there missing facts? What questions need to be asked? Write them down, then ask away. Your goal is to get every drop of information you can out of these most basic sources.
Review every document your client has provided you to gather information about their claim or defenses. Again, you will probably be left with more questions than answers. But at least, you will have a handle on what information is readily available and what you will have to find later.
After considering the complaint or your client's story, identify the potential causes of action. Do not limit yourself to the claims pled in the complaint or what your client says they "want to sue for." Also, do not judge the potential claims or defenses right now - just identify them so you can give them a fair assessment as the case progresses.
Now its time to draft the first parts of your roadmap. Prepare an initial narrative of the facts and a list of the potential causes of action with the corresponding defenses.
What is the law?
For each potential cause of action or defense on your draft roadmap, list the elements. Then plug in the facts that are alleged in the complaint or were gleaned from your interviews and document reviews. Note what information is missing or what other facts, not readily gleaned form the information at hand, could support a claim or defense. Add these questions to your roadmap, then proceed to the next question.
What other sources of information are available?
It is brainstorming time. List every possible source of information, including your client, witnesses or others who might have valuable information, public documents, documents in your client's hands, the opposing party and other sources. Involve paralegals in this process, as they often are very familiar with what kind of information is our there and how to get it. Keep an eye on your roadmap as you go and try to figure out some source for every missing piece of information you noted in the previous step.
If any of these sources are readily available right now, try to obtain what information you can from them to add to your narrative of the facts in your roadmap. Otherwise, add a list of these sources to your roadmap, so you can tap into them later.
Who are you up against?
Next, evaluate the opposition. Use all the resources at your disposal to find out as much as you can about the opposing party and opposing counsel. Good sources of information are the other attorneys in your firm or members of attorney groups such as the ABA. At the very least, familiarize yourself with opposing counsel's reputation in the applicable venue.
You should also avail yourself of the information on the internet, including opposing counsel or opposing party's websites. Information might also be available on web-based research sites. In particular, look for cases opposing counsel has been involved in before to see if they have been successful in promoting any novel theories of the law or interpretation of procedural rules.
Add a brief discussion of what you have discovered about the opposing party and opposing counsel to your roadmap.
What are the rules of the game?
Of course you need to understand the rules of procedure. Beyond that, you need to understand the more subtle rules of the game. For example, you need to be familiar with the formal and informal rules of the court to which you are assigned. Support staff in your office can be a great resource for this information as they are often the ones who deal directly with the prothonotary or court clerk's office.
If you are in a venue that assigns a judge early on, make sure you familiarize yourself with that judge's particular preferences. These may be available on the court's website or in another publication of the court. Also, check published opinions of the assigned judge to get a feel for the way the judge rules on issues that are pertinent to your case.
If there are particular things that you believe will be hard to remember, like the judge hates footnotes or every paper filed with this court needs a particular backing paper, note this on your roadmap.
What is the goal?
For every cause of action you have identified, evaluate the potential recovery or exposure. Use verdict research sites to see what range might be expected for similar injuries or damages. Again, identify any characteristics of the venue or of opposing counsel which may impact the potential exposure or recovery. Research the law on each cause of action to determine whether there is exposure to treble or punitive damages. Come up with a range of potential recovery/exposure and then narrow that range to the most likely resolution. Note this range on your roadmap.
Now, consult with your client again. What are their goals? Cost containment, avoiding adverse precedent, getting their day in court - - all these are potential goals that will require you to handle the case differently.
Now assess these goals. First, are your client's goals realistic? If not, start educating them now. Next, would ADR or early settlement be appropriate? If so, make sure you understand why your client wants this. Is their desire driven by cost control, a wish to minimize airing of the dispute in a public forum, internal company dynamics, or some other reason?
Summarize these goals on your roadmap so you can revisit them later to see if and how they change as the case progresses.
How do you achieve that goal?
Finally, develop a resolution plan. This plan will evolve continuously until the case is resolved, so do not try for perfection. Instead, use what you have learned so far to figure out the next steps. Then, imagine likely contingencies and develop a plan for dealing with each contingency if and when it occurs. When you have finished, your roadmap should include a plan for fact gathering, a discovery plan, a pleadings and motions plan, and an outline of your and your opponent's likely trial themes.
The plan for fact gathering should include your answer to the question of what sources are available. Prioritize those sources to minimize expense while maximizing your ability to gather the facts. Your fact gathering should include getting the documents likely to be requested and answers to questions likely to be asked by your opponent in formal discovery.
Your discovery plan should include written and deposition discovery. Note if there are standard interrogatories or requests for production in your venue. Using standard written discovery may, depending on the rules in your venue, eliminate or minimize your opponent's ability to object to those requests. Consider the timing of each discovery request and how they fit together. For example, you need to determine when in the process you want to depose the opposing party or if a deposition is dependent on getting access to certain documents. Also consider whether subpoenas will be necessary, whether you will need expert testimony, and whether requests for admissions will be helpful to narrow the issues in the case.
The last part of your roadmap is a plan for pleadings and motions. You need to anticipate the regular course of pleadings as well as motions that might be peculiar to your case, such as future motions in limine or motions for protection from discovery. Consider whether a motion for summary judgment is likely to be filed. If so, this will affect your discovery plan as you will be working toward an interim goal of preparing for that motion.
Finally, based on all the information you have amassed, anticipate your opponent's likely trial themes. Then, do the same for yours. In essence, you are anticipating the opening and closing statements for trial. With these themes in mind, you should now revisit your discovery and fact gathering plans to make sure you will get the information you need to present your themes and neutralize your opponent's themes.
The roadmap you create in the initial case evaluation stage will serve as a guide to resolution of the claim. You should review and revisit the plan as it will evolve and change throughout litigation. By starting off with this analysis and keeping the roadmap in front of you as you proceed, you will set yourself on a course of action designed to achieve the best possible outcome for your client.
About the Author
C. Theresa Barone is an associate with Nelson Levine deLuca & Horst in Blue Bell, Pennsylvania. She practices in the area of complex insurance coverage and bad faith litigation. She can be reached at firstname.lastname@example.org.