The Successful Trial Lawyer's Pre-Suit Case Plan

You just secured a big personal injury case. This case will be your unicorn. How will you produce the best result for your client? Prepare a case plan. Consider each stage of the case. Map it out. By proceeding thoughtfully at each stage, you will maximize the value if you selected a good case.

During pre-suit, you must lay the groundwork for a successful result. Start by sending any letters of preservation to the responsible parties, demanding that they preserve relevant evidence. Include a comprehensive list of documents, tangible items, videos, and photographs. If a potential defendant has little or no insurance, then demand a pre-suit examination under oath to preserve testimony so that you know what that party knows before you proceed against any remaining parties. If the potential defendants are already represented by counsel, then consider sending a letter to their counsel invoking any fiduciary duties that they must honor under applicable contracts or statutes, in addition to your standard requests for the insurance policies. This initial round of correspondence sets the tone of the case for all participants.

Investigators and Experts

As you gather the facts from your client, hire a private investigator. Your investigator will conduct background checks on your client and any key witnesses. Your investigator will take recorded statements under oath from unrepresented witnesses and transcribe those statements. Such witness statements will constitute your privileged work product in most jurisdictions. Your investigator may inspect the accident scene and take video along with photographs. In some cases, measurements may need to be taken. To avoid trespassing, your investigator may use a telephoto lens or aerial photography where local laws permit. Public record requests can be made to various governmental agencies for relevant records: deeds, plats, building plans, citations, performance bonds, 911 audio files, court records, property tax records, regulatory inspections, and law enforcement reports. Acting carefully to avoid any impermissible invasions of privacy, your investigator can check social media and local publications for information about the accident and potential witnesses. Include your investigator in important litigation meetings—you may be pleasantly surprised with the helpful ideas that the investigator will suggest. Have your investigator periodically contact your client to summarize what information has been gathered. Through these discussions, additional leads may be developed. You will spend good money up front on private investigation before any key evidence disappears.

After sending the initial correspondence and instructing the investigator, consider the types of experts you may need to prove liability, to prove damages, and to help you organize the case. As to liability experts, you must consider the value of retaining a biomechanical engineer and a human factors expert to go along with your accident reconstructionist. Subspecialists may make the case for you. When a defect caused the accident, look for experts in various construction trades and fields of engineering. Be prepared to hire a company that can find the best subspecialists to suit your needs. Before hiring the experts, however, get your client’s permission and send a confirming letter to your client to memorialize your discussions. As to damage experts, you may hire an economist, a radiologist, a life care planner, a vocational expert, and a grief expert. Any remaining experts, such as medical chronologists and audiovisual technicians, will provide litigation support. A medical chronologist can summarize thousands of pages of medical records into a brief, well-organized summary that highlights any preexisting medical conditions that the defense may use against your client. The audiovisual technicians can digitize your video depositions, draft accident scene illustrations, draft surgical illustrations, Bates-stamp your exhibits in a digital file, and compile enhanced PowerPoint presentations with witness video clips for your opening statements and closing arguments. Lining up your experts early will not only focus the case but also let your client know that you are serious about obtaining the best possible result.

Research

Before you draft the complaint, employ the V model of legal research. Start broad research in treatises, annotations, and legal periodicals. End your research in the case law. After familiarizing yourself with the applicable causes of action and the anticipated affirmative defenses, draft an outline that contains all of the applicable statutes, ordinances, regulations, and case law. Your legal research outline should contain pinpoint page citations with quotes from the most germane precedent. As the outline develops, pay particular attention to the legal elements of each cause of action and each anticipated affirmative defense, any thorny insurance and indemnity issues, the possibility of removal from state court to federal court, possible summary judgment arguments both for your client and for each defendant, and possible procedural and evidentiary arguments for motions in limine.

If you run across a critical issue of law that will tip the case, then you should consult with an appellate attorney. You may even hire the appellate attorney to draft and to argue any motions on that issue in the trial court. Even if the legal issues seem ordinary, the research outline will permit you to plan productive pleadings and discovery as the litigation proceeds. Nothing produces more confidence than transforming points from persuasive case law into allegations in your complaint or formulating deposition questions based on jury instructions. As you near a trial, convert the outline into a trial brief, both to educate the court and to preserve your client’s arguments for any appeal.

Once you have gathered the facts and the law, start to ponder the settlement value. You must answer the age-old question: to demand or not to demand? Unless a pre-suit demand constitutes a required condition precedent to a lawsuit by contract or statute, you should not automatically send a demand package before filing the lawsuit. While a detailed demand package may permit an insurer or risk manager to set a proper reserve on the value of your claim, there can be significant tactical disadvantages. You will educate a defendant and opposing counsel about the case by sending an early demand. You also may say something in the demand that produces an unintended consequence, such as a monetary amount triggering diversity jurisdiction for federal court. Think carefully before deciding to send a pre-suit demand package.

Preparing for Trial

At every opportunity, discuss the facts of the case with friends, colleagues, and family members, while avoiding the disclosure of confidential client information. These discussions will focus your thoughts so you can form a cohesive story with subplots. Who are your heroes? Who are your villains? What are their motives? How can you “connect the dots” so that an insurance adjuster, a risk manager, or a future jury will be persuaded to make your client whole?

If you have handpicked the case to prepare for a jury trial, then consider meeting with a jury consultant before filing the lawsuit. The jury consultant will brainstorm with you on the case themes and word pictures that showcase the most persuasive aspects of the case. The jury consultant should speak with your client to assist with his or her dress, demeanor, and manner of speaking throughout the litigation. Focus groups can help you determine the facts that should be emphasized and those that should be minimized. A mock trial will not only center your thoughts on the most important issues for the trial but also permit you to frame your case more persuasively for any settlement negotiations.

Crafting a thoughtful pre-suit case plan will bear fruit. Put a pre-suit case plan to work for your clients today.