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Litigating a civil case without an overarching strategy can be like applying for a small business loan without evidence of your strategic plan - you won't get anywhere and you'll never get any money in the end. By contrast, litigating with a plan can save time, money, and considerable aggravation to the courts and the parties, all in keeping with the spirit of the first rule of civil procedure: to secure the just, speedy, and inexpensive determination of every action.
Start at the End - Research the Law and Facts Necessary for Your Closing Argument
Civil jury instructions provide an excellent starting point on the elements plaintiffs must establish to win their case. As long as a jury is going to use them in determining your client's fate, it only makes sense that you use them as well. Even when proceeding in familiar legal territory, establishing the prima facie factors applicable to each allegation will allow you to outline the research, factual investigation, and witnesses necessary to prosecute your claim or defense.
Score Early - Establish Your Goal
Every case may be winnable, but every case is not necessarily a "winner." Accordingly, it is important to determine your client's end goal before a case is underway. Litigating a case that should be settled due to bad facts or negative publicity will result in undue costs and a weakened attorney-client relationship. Likewise, failing to educate your client about potential outcomes and costs can lead to significant problems. Counsel should take time early in the case to provide his or her client with a realistic estimate of winning, the costs and client time associated therewith, whether the case will involve substantial motions practice and/or discovery, and the likelihood of trial and appeal. If necessary, this information should be put into writing. Once a client is properly educated, it can make an informed decision on how to proceed.
Ending Before it Begins - Preliminary Motions Practice
Over ninety percent of civil cases are resolved prior to trial. In other words, the modern litigator litigates with her word processor, not her voice. While some cases are more amenable to motions practice than others, you should evaluate every case early to determine if a dispositive motion is appropriate. The following list covers basic motions that should be considered at the beginning
From a defendant's perspective, early motions practice can terminate an action quickly with little cost compared to years of litigation. Plaintiffs, likewise, should avail themselves of potential motions and draft dismissal-proof pleadings to the extent possible. Should your assessment fail to yield the potential for early dismissal, you also should evaluate the propriety of a motion for summary judgment and motions in limine as to each claim. If the potential for these motions exists, be sure to structure your discovery to yield facts necessary to support or oppose the same.
Think like a Playwright - Set Forth the Cast of Characters and the Props Needed for Your Case
All the world's a courtroom, and we are merely witnesses. Regardless of whether your case proceeds to trial, you will need to work up a list of primary witnesses with whom you will interview, depose, defend, and maintain a relationship throughout litigation. Begin by listing obvious witnesses, managers, and third-party entities. From this list, proceed to match each character with the case issues related to them, including any and all documents that you will need to obtain from the individual or entity. Don't be afraid to list unnamed characters such as "mid-level manager," "investigating police officer," or "payroll company." It is okay at this early stage to be unable to identify the names of individuals, but it is dangerous to proceed through discovery without giving thought to what types of witnesses you will need to evaluate.
The same process should be undertaken with documents. Brainstorm the types of materials you will need to successfully prosecute your agenda, who may have them, and the purpose for which they will be used. When obtaining documents from a business, be sure to obtain a certificate of authenticity from the organization's records custodian. Doing so may avoid the need to establish records' authenticity at trial. Your witness and document list will necessarily change throughout discovery, but an early person and document "wish list" should assist in the initial stages of litigation.
Consideration should also be given to any electronic information pertinent to your case. In evaluating the need for e-discovery, special attention should be paid to the cost of obtaining forensic data and whether or not it is necessary to your case. Regardless, you should always send your client a litigation hold letter at the outset of any litigation, informing them to suspend deletion of materials pertinent to the subject matter at issue.
Adapt, Adapt, and Adapt - Don't be Afraid to Change Your Plan
The scope of a case can change with the wind. Clients may suddenly decide litigation is too costly, an opposing party may produce the proverbial smoking gun in discovery, or you may find the basis for a counterclaim six months into litigation. Becoming wedded to your case management plan can be a hindrance when change is necessary. As with all things in the law, adaptation is key to survival. For each new scenario that develops, always communicate the change with your client, modify your goals as necessary, and revise your plan.
About the Author
Peter M. Lantka is an Assistant United States Attorney with the U.S. Attorney=s Office for the District of Arizona. The opinions expressed herein are those of the author and do not reflect the policies of the United States Attorney's Office or the Department of Justice.