Timing Issues
Threshold issues: Should you even consider drafting a complaint? Should you write a demand letter first? Are there any statute of limitations issues requiring that you act promptly? If so, what about a tolling agreement, by which the opposing party agrees to extend the statute of limitations? Do you need immediate relief (e.g., a temporary restraining order, a prejudgment attachment or garnishment) before other creditors pre-empt your ability to secure a potential judgment? If a contractual dispute, are there applicable contract provisions that forestall or preclude your bringing suit?
Contract Issues
If the dispute pertains to a written contract, read the contract in its entirety. Is there a condition precedent to litigation, like mandatory mediation? Is there an arbitration clause, which may preclude litigation in its entirety, except possibly for obtaining immediate court relief? Is there a forum selection clause? If so, is it enforceable? Is there a choice of law provision? Is there a contractual statute of limitations? Are there requirements that your client provide notice of default, with an opportunity for the other party to cure performance? If so, has your client complied with them?
Standing Issues
Even though standing issues do not usually arise, be aware of them. Standing requires 1) injury in fact, which is an invasion of a legally protected interest that is concrete and particularized, and is either actual or imminent; 2) a causal relation between the injury and the challenged conduct; and 3) a likelihood that the injury will be redressed by a favorable decision. Rule 17 requires the real party in interest to bring the action and sets forth which law determines the capacity to sue.
Subject Matter Jurisdiction Issues
If you have a choice, determine if your client is better off in state or federal court. The bases for federal court subject matter jurisdiction are set forth in the US Code. Typical bases are federal question (28 U.S.C. §1331), diversity (28 U.S.C. §1332), and supplemental (28 U.S.C. §1367). Do you have a basis to assert subject matter jurisdiction in your case?
In Personam Jurisdiction Issues
Even if you have subject matter jurisdiction, you must also satisfy the requirement of in personam jurisdiction, which is the power of the court to assert jurisdiction over each defendant. This jurisdiction can be based on consent, service of process as provided generally in Rule 4, and long-arm jurisdiction as provided in Rule 4(k).
Rule 4 sets forth detailed specifics on the proper way to make service on various types of parties. It also provides for waiver of service, which allows a defendant far longer to file a pleading addressed to the complaint or an answer than if service is not waived.
Read the applicable state long-arm statute and case law to understand the required constitutional minimum contacts to apply it. Long-arm jurisdiction applies to causes of action specified in a state statute enabling a court to exercise personal jurisdiction over nonresident individuals and entities engaging in activities like transacting business in the state; committing tortious acts in the state or out of the state causing injury in the state; or owning, using or possessing any real property situated in the state.
Factual Issues
You have completed your conflicts check, you have no conflict, and you are meeting with your client for the first time. Explain the purpose of the meeting, ensuring that your client realizes you need to know both positive and negative information, so you can evaluate the strengths and weaknesses of each potential claim and anticipated defenses. Explain the scope of the attorney/client privilege so your client will be candid with you, warning of inadvertent waiver (e.g., talking with friends about your communications). Discuss the litigation hold requirement.
If you take the case, send the client a confirming letter and, if you have not already done so, obtain a written retainer agreement. Next, complete your legal research based on the facts you learned to determine what causes of action you should assert and what remedies you should seek.
Legal Issues
You have met with your client, learned sufficient facts to do your legal analysis, and have your retainer agreement in hand. What do you research?
Before doing any legal research, find a quiet place where you won’t be disturbed, and list all possible causes of action that come to mind, even if far-fetched. Then brainstorm with a colleague. Research each cause of action’s elements, and determine which are viable. Consider both common law and statutory causes of action and remedies. Keep in mind that some common law causes of action (e.g., fraud), and some statutes (e.g., unfair trade practices), enable you to claim legal fees. Various statutes also enable you to claim double and treble damages, (e.g., product liability acts, patient’s bill of rights acts, and unfair trade practices acts).
If you determine that certain causes of action may be asserted but, as a strategic matter you decide not to pursue them (weak claims can undermine strong ones), you need to obtain your client’s informed consent. Confirm that consent in writing. The same applies to remedies you decide not to pursue.
Client Issues
Send a draft of the complaint to your client, explaining that, by signing the complaint and filing it, you are making certain representations to the court, under Rule 11. Those representations include that the complaint is not being presented for any improper purpose; that claims are warranted by existing law or by non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and that factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Go over with your client each allegation and claim for relief, to assure yourself that you are complying with Rule 11, and revise your draft accordingly.
Deal with client expectations regarding time, cost, and result, to avoid client disappointment. Unless you do so, you may achieve a favorable and timely result, at a reasonable cost, and yet the client will be disappointed. When clients ask questions on these subjects, resist the impulse to respond by saying something only to please them. Be realistic in advising clients about these sensitive subjects. They rely on you for realistic, pragmatic advice, not Pollyannaish prognostication.
