Attaching the Booster Rockets: Drafting Contracts and Forms
One of the points at which in-house counsel can expend a small amount of additional time to produce a significant impact occurs before a lawsuit is even a twinkle in anyone’s eye, i.e., when contracts and forms are being drafted. In-house counsel who routinely handle transactional responsibilities can benefit from the viewpoint of a trial lawyer or another in-house counsel charged with supervising litigation. Lawyers with a litigation mindset can identify problematic language and other issues that may make litigating disputes over the contract or form more difficult or risky. The value of this sort of analysis increases exponentially if the contract spans a long time period or involves significant resources, or when the form will be used widely in the field or as a template to generate additional forms.
For example, a fresh set of eyes—connected to a mind trained to see litigation risk from miles away—can identify language that may subject the document to a finding of ambiguity. In-house litigation counsel may know of pending litigation (whether involving the same company or other industry players) that makes the use of a particular provision or phrase risky, depending on what the courts decide. Or she may be aware of positions taken by the company in other pending cases as to the meaning of the same or similar contract terms.
Identifying potential problems in a draft contract or form does not always require the in-house transactional counsel to change the draft or to alter a negotiating position. Identifying these issues simply allows in-house counsel to make educated choices and accurately balance business risks against litigation risks when creating the very documents that may form the basis of future business litigation.
One thing to keep in mind during such a review is the limited scope of attorney work product. Lawyers who spend most of their time working in active litigation tend to default to the view that all their notes fall under the work product umbrella. However, the test for whether materials are protected as attorney work product (independently of the attorney-client privilege) is not whether the lawyer generating the materials is a litigator. Instead, in many jurisdictions, the determinative factor is whether, when the materials are prepared, litigation is anticipated. E.g., United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998) (applying “because of” test for anticipation of litigation); United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982) (applying “primary purpose” test).
Separate from the work product protection, the attorney-client privilege generally should apply to confidential communications made to facilitate the rendition of professional legal services to the client between certain lawyers and client representatives. Nevertheless, applicable law may apply the privilege only to a limited category of client representatives. Disclosure of materials beyond this group may preclude or waive application of the privilege. Accordingly, consideration should be given to the types of materials the litigation lawyer should generate, the outward and visible signs of confidentiality that should be applied to the materials, and the scope of the group to whom such materials should be circulated.
Plotting Your Course: Formulating Initial Case Strategy
Formulating initial case strategy can exponentially increase the chances of a favorable outcome. Helpful activities at this initial phase include:
• examining threshold matters such as personal and subject-matter jurisdiction, venue, removal, arbitration, and joinder of indispensable parties;
• calendaring deadlines for tasks such as filing an answer, providing initial disclosures, the end of fact and expert discovery, designation of responsible third parties, and filing a jury demand;
• identifying the essential elements for each claim; the causation standard; the measure of damages; the availability of punitive or statutory damages, equitable remedies, and attorney fees; the burdens of proof; any prerequisites for pursuing relief (such as a presuit demand, verified pleading, or threshold report or affidavit); and any defenses or counter-defenses;
• identifying any areas requiring or involving expert testimony, additional necessary parties to join, potentially responsible third parties, indemnity rights, and insurance coverage;
• assessing the client’s possible exposure on each claim, e.g., the available remedies and the potential business and industry impact;
• explaining the client’s business goals in the litigation; and
• outlining for each claim:
• the anticipated fact development;
• discovery strategy (i.e., documents needed, possible admissions to obtain, potential witnesses, anticipated inspection/testing needs, third-party records to seek);
• summary judgment strategy (i.e., questions of law, issues that can be established or negated as a matter of law, and issues susceptible to a no-evidence challenge); and
• issues needing legal research.
Consulting an appellate lawyer as part of this analysis will provide a different perspective on fact development, possible hot-button pretrial issues, and legal questions that may seem unimportant at the trial court stage but could have significant impact (whether positive or negative) in any appeal. Even if no appeal ever occurs, the likelihood of success on appeal affects settlement options and can impact a trial court’s decisions on critical issues. Bringing an appellate lawyer to the table to work with trial counsel yields a comprehensive strategy that the trial lawyer can implement and adapt as the case develops. This dynamic-duo approach can anticipate legal issues that may not come to fruition until the jury charge stage; identify causation and damages issues that might otherwise lurk unnoticed until the summary judgment stage; flag potential constitutional issues that could arise in formulating a judgment; and recognize any potential points for mandamus or interlocutory appeal.
In-house counsel should expect trial counsel to include in the initial case assessment a discussion about the client’s business goals in the litigation. Perhaps the client simply wants to win the lawsuit. Or perhaps the client wants to win the lawsuit in order to protect the validity of a contract or form used widely in its business, to obtain a judicial decision on a disputed issue affecting the industry, or to send a message to competitors or vendors. Alternatively, the client may have business goals that cannot be accomplished through a judgment and mandate. In that event, mediation and settlement might present the best opportunity to achieve the results the client considers most important.
A thorough assessment provides the foundation for the initial settlement evaluation. Even if the client’s main goal is simply to win the lawsuit, a settlement evaluation can maximize the chances that money will not be wasted on litigation that could (or should) be avoided. Armed with the information provided by the initial case assessment, the in-house counsel and the trial lawyer can meaningfully discuss some important questions:
• Based on the issues raised in the initial case assessment, is this case one that should settle early? If not, is there a possible tipping point earlier than the usual mediation deadline when a settlement offer or mediation might make sense?
• At this initial stage, what is the settlement value of the case? What unknowns or variables would impact that valuation?
• Who would need to be involved in a decision to make a settlement offer or to voluntarily seek mediation? Where are these people located and how responsive do they tend to be?
Knowing the answers to these questions will help establish when the case might reach a point where settlement or mediation would be worthwhile.
Shifting to Warp Speed: Tasks at the Midpoint of Discovery
At the midpoint of discovery, a trial lawyer may be hard-pressed to find spare time to do anything other than draft and respond to written discovery and prepare for depositions. Yet, this is the time that devoting attention to several other tasks can yield great strategic benefits.
This is the point when it makes the most sense for an appellate lawyer to sketch out the jury charge. The claims and defenses set forth in the pleadings have crystallized through written discovery responses and deposition testimony. The trial lawyer likely has a better idea of the other side’s true priorities. But why should the client spend money on the jury charge this far in advance of a trial that may never happen? For one thing, sketching out the jury charge at this juncture allows the trial lawyer to identify any gaps in the development and to fill them before discovery closes.
The draft charge also helps the trial lawyer reevaluate the settlement options based on:
• a lack of facts or evidence to support one or more jury charge elements;
• favorable or unfavorable admissions or other discovery that may conclusively establish one or more elements or may significantly influence the jury’s answers; and
• the potential impact on the case (positive or negative) from specific jury instructions that would be helpful to the jury but that the trial court likely will not give.
In addition, the draft jury charge supplies a valuable resource for preparing summary judgment motions or responding to them. The jury charge shines a spotlight on the fact questions that may be established or negated as a matter of law. It provides a roadmap of the elements that may be challenged in a no-evidence summary judgment motion. The charge also focuses attention on any threshold legal issues that the trial judge should determine as a matter of law before the trial begins. Such issues might include ambiguity in contract language, choice of law, and the question of whether a duty exists.
The draft jury charge provides a springboard for the trial lawyer to update the initial case assessment based on the factual, legal, and business developments that have occurred since the assessment was performed. This may be the time to bring additional company decision makers to the table and consider scheduling a mediation.
Transferring to Another Energy Beam: The Mediation Statement
Whether mediation occurs by court order or by agreement, in-house counsel and trial lawyers should not underestimate the usefulness of the mediation statement. Mediation statements often are drafted in a perfunctory manner. But a mediation statement can yield vastly more benefits if the trial lawyer uses each section of the statement to reevaluate the case’s strengths and weaknesses before a factfinder, develop themes for trial, and identify remaining legal questions that need further research.
For example, a trial lawyer drafting the background fact section of the mediation statement might ask himself or herself:
• Am I having to dance around any difficult (or perhaps dispositive) facts?
• Does it take pages and pages to explain the basic facts and concepts, which may equate to days and days of testimony just to provide the factfinder a foundation for the rest of the evidence?
• What is the best organization of the facts: chronological, topical, or some other method?
• Are there any themes or taglines that come to mind while drafting the statement? In formulating mediation strategy, consider whether to work any of the themes into discussions with the mediator in a separate session, to gauge the mediator’s reaction and benefit from any counter-arguments he or she might raise.
• Would photographs, diagrams, timelines, or other visual aids assist the mediator in quickly grasping the issues? Consider whether these items should be developed further as demonstrative exhibits for the courtroom if the case doesn’t settle.
In drafting the overview of claims and issues, a trial lawyer should devote some thought to questions such as:
• Do any of the claims or issues “stick out,” whether because they are more important than others, less important than others, or rely on different facts or concepts than others? How might the presentation of the case be organized for trial most effectively?
• Are there any claims or defenses the client should be willing to let go, and if so, under what circumstances? If the answer to the first question is “yes,” a discussion between the trial lawyer and in-house counsel should ensue.
• Are there any claims or defenses that are diminishing the chances of success on other claims or defenses, and if so, what should the client’s priorities be? (Ditto.)
And in drafting your discussion of the claims and issues, consider:
• whether there are any legal questions still in need of research;
• whether research done months (or years) earlier in the case needs to be updated;
• how other courts have applied the law to similar facts; and
• how courts in other jurisdictions approach the same legal issues.
Using the mediation statement for more than mediation preparation increases its value with little additional expense of time.
Pressing the Turbo Button: Dispositive Motions
Dispositive motions present a final example of relatively minimal time that can yield substantial impact. This category should include not only summary judgment motions, but also Daubert motions, because excluding or admitting expert testimony often determines whether there will be any evidence to support one or more elements of a claim. Involving an appellate lawyer in drafting the dispositive motions—either as the initial draftsperson or as part of the revision process—can help:
• maximize the chance of holding on to any dispositive victory;
• educate the trial judge about issues that, if not resolved now, will result in a messy trial (and have to be resolved at the jury charge stage anyway); and
• maximize the further usefulness of the motions as templates for a motion for directed verdict or judgment as a matter of law if the case goes to trial.
A trial or appellate lawyer can further promote efficiency by discussing the outline of arguments with in-house counsel at the outset of the drafting process. In-house counsel may be aware of other company or industry litigation that makes it advisable or necessary to craft a nuanced argument on a particular legal issue. And the discussion may include the question of whether to omit some issues on which an argument could be made, in order to increase the chances of success on stronger arguments or to build credibility with the court. Having these sorts of discussions at the outline stage can avoid wasting valuable time on arguments that are predestined to be removed or entirely rewritten.
At critical points in litigation, a minimum of additional time or effort can yield maximum strategic advantage. Use these opportunities. Combining the perspectives and skills of trial counsel, appellate counsel, and in-house counsel in the most efficient way benefits the client and can dramatically increase the chance of litigating a dispute to a successful conclusion.
Keywords: litigation, woman advocate, litigation strategy, appeal planning, error preservation, case planning, jury charge, mediation statement, dispositive motions, Daubert motions, summary judgment, in-house counsel, ethics, case management