Starting Right and Staying Right with Civil Litigation
By Joe Ramsey
Copyright © 2010
The most important time in any litigated case is the beginning. If you start right and follow a well-considered game plan, the case will likely stay on track, and you will end with a satisfactory result. Here’s how to do it in a time and cost-efficient manner.
Assumptions
These suggestions apply to all civil litigation. For purposes here, assume there is no imminent statute of limitations or comparable emergency. Assume that you represent either side in a two-party business dispute involving low to mid six-figure damage potential. Assume that you are past the pleadings stage (the subject of a separate paper of its own). Assume that there are no other necessary parties, that both parties are financially successful businesses operating as close corporations, that there is a long history of business dealings between the parties, and that the dispute will involve multiple lay witnesses, voluminous documentation, and a need for independent expert consultation and retained expert witnesses for litigation.
Starting Right
As litigation counsel, we are obligated to get the information concerning all issues necessary to make responsible recommendations about settlement and trial. We are ethically obligated to get that information sooner rather than later and to do so as cost-efficiently as the standard of care allows. If we do this correctly at the outset, the case tends to stay on track – from early settlement opportunities, to preparation for the appropriate forum, and for trial or arbitration. Regrettably, the converse is also usually true: If you start badly, you will likely continue badly, with increasing difficulty ever to recover.
Get information from your client
The first step in starting right is preparing for in-depth questioning of key people with knowledge of the dispute. Some client representative or representatives will come seeking your advice. They will have their perceptions of the dispute and of the law and opinions why their side is correct. Your first job is to get to the bottom of what they have to say. To do this properly, meet with them at the right time and place. The right time is usually as soon as they can set aside enough time to explore the problem fully, and the right place is usually their place of business so that access to documents and personnel is easiest.
When you have their commitment to focus on the problem, be prepared to question them in detail. Listen carefully, follow-up, and clarify. Never accept their conclusions about what happened. Find out the factual bases for what they say. At a bare minimum, in the first meeting, identify the sources of all documentary evidence and the persons most knowledgeable about each major issue. Some immediate advice concerning each of these evidentiary sources will become obvious.
As for documentary evidence, find out who within your client’s organization knows where the documents are. “Documents” includes not only hard copies stored in traditional depositories but electronically-stored information. Although most business entities are increasingly using electronically- stored information, we must also find out where traditional paper documents are. Incoming documents are more likely to be only in paper, and they are critical to your analysis. One person who usually knows where all the documents are is the long-standing, loyal executive secretary or administrative officer. This individual will know where paper documents are stored - the traditional pre-electronic-age archives as well as how to access all electronic information.
Even before you know where both paper and electronic documents are, and who is responsible for their maintenance, you will advise your client in writing to be sure to preserve all potentially relevant documents and how to do it, effective immediately. Once you know where likely evidence is located and its approximate volume, you can decide in each case the most time and cost-efficient method for review and analysis and get that important work done.
As for key people, you must question the people in your client’s organization and follow documentation until you are satisfied that you know the personnel most likely to know what you need to know in order to develop the best strategy. Identifying most key people will obviously depend on the nature of the dispute. For example, if you face an accounting dispute, you will need to know who was involved keeping track of the transactions. If you face a contractual relationship gone awry, you will need to know each person involved in the negotiation and performance of the contract. If you face an employment relationship dispute, you will need to know each person with percipient knowledge of the history of employment and all relevant relationships.
Be sure to identify key former employees as well as current employees. It may well be that someone with invaluable knowledge has retired or moved to other employment. Steps should be taken to ensure as reasonably as possible that these witnesses will be available when you need them. The necessary steps could range from nothing more than being sure to keep in touch periodically to arranging for trial testimony to be preserved in case something happens to the witness. At the other extreme, there may well be a disgruntled ex-employee determined to hurt your client’s cause. It is obviously better to know this problem as soon as possible and most certainly not in the middle of trial or hearing.
Find and learn from qualified independent consultants
By the time you have gotten detailed information from your client and available documentation, you will have identified key issues that suggest retaining an independent consultant. Your client may resist retaining outside expert consultants early, but it is usually unwise to defer this expense.
It is common for personnel to be defensive and to some extent in a state of denial if their performance is the focus of a dispute. For example, in an accounting dispute, the in-house comptroller will likely defend the accounting and financial work done to date. In a contract dispute, the person who negotiated the contract or is in charge of its performance will likely insist that the contract is clear and the performance is satisfactory. In an employment dispute the director of Human Resources will likely defend the company’s handling of performance issues arising from the work of the unhappy employee. In such instances, you need the benefit of an independent outside expert with the qualifications and confidence to tell your client’s decision-makers what they need to hear and not what they want to hear.
Ask the other side for information
With the benefit of in-depth information from your client’s organization and the scrutiny of an independent outside consultant on key issues, you may still lack certain information obtainable only from the opposition. Even though pitched discovery battles have become too common, you may be able to avoid the expense and anguish from such disputes.
Always ask opposing counsel to provide needed information voluntarily and early. A reasonable request is usually honored, especially if accompanied by a voluntary offer to reciprocate and when what you want is clearly discoverable. You can often set the tone for cooperative professionalism on both sides. Your client should be grateful upon realizing the considerable cost-saving.
Targeted discovery
To the extent your opposition refuses to yield information voluntarily for whatever reason, you may need to consider some targeted discovery to get additional information needed to allow informed recommendations about settlement and litigation.
Although many attorneys routinely serve form interrogatories to get basic information, you should not automatically default to that form of “paper discovery.” You may not really need much of the relatively routine information sought by these interrogatories. With the wrong opposition, you may end up in a costly fight even over this relatively benign information. It may be more time and cost-efficient to identify and depose one or more opposition witnesses who have specific information you need to assess your client’s posture.
Spot and check legal issues
By the time you have gotten the foregoing information, legal issues will have become apparent. Even if you have extensive experience and expertise in the subject matter, you should double-check what you believe to be controlling case or statutory law to get most recent authorities with fact patterns similar to yours.
The discipline of including this legal research in your check-list for getting started right is a good habit with no down-side and a potentially invaluable up-side. Your client may not want to pay for research, but the standard of care may well require it unless you are a specialist currently knowledgeable on all issues. If you find nothing of consequence, you may want to show the time spent but “no charge” it. If you find compelling recent authority, your client will be pleased or at least benefitted and will not question a proper charge.
Develop strategy
With the information you now have, you can make responsible recommendations about further handling. Unless there is some compelling reason not to, prepare a written report of all you have done. Assuming that the case does not settle at this point, your report should end with a checklist of additional activities you believe your client should consider, including additional factual investigation, percipient witness depositions, and any additional expert consultation. This initial evaluation will serve as a guideline for staying on course. Staying Right
The discipline of developing a reasonable game plan with written reporting and periodic review will keep you on track. There are four identifiable components to staying right in every case.
Decide on specific steps
When you conclude your initial evaluation, meet with your client to decide whether to try early settlement or to prepare for litigation. If the decision is to prepare for litigation, identify activities to be considered toward that end. Be prepared to discuss the pros and cons of each potential activity. Use a written check-list to be sure not to overlook something. The categories of activities should include at least any remaining factual investigation, depositions of lay or percipient expert witnesses, and developing potential retained expert witness testimony. Just considering these categories will involve the client, keep the client informed, and result in a clear authorization for further work-up and litigation preparation.
Set self-imposed deadlines
The preparatory activities will suggest priorities and timing. Impose reasonable deadlines you can meet. The important operative word is reasonable, because the “good” that will result from this self-imposed discipline in terms of doing a first class job and achieving well-deserved client satisfaction will be quickly out-weighed by the “bad” that will result from missing deadlines.
Report in writing
There are several related reasons for the strong recommendation that you report in writing on the activities as they occur. Unless there is some compelling reason not to, the discipline of written reporting will sharpen your analyses of evolving information. If you are practicing in a firm and are one of a team responsible for the file, the written record provides relatively seamless service for the client in case a teammate has to fill in for you. There is a written record of case development. And the client should be pleased.
Sometimes a client will resist reporting as an unnecessary expense. But written reporting of case development may well be required by the standard of care and is such good practice that you should keep a written record at no charge if the client refuses to pay or cannot afford it - especially if team members will likely have to back each other up periodically.
Periodic personal reviews
Finally, you should regularly meet with your client decision-makers to review short and long term strategy as new information is developed.
Conclusion
These suggestions should almost always keep you headed in the right direction. In addition to doing the job right for your clients, they are almost always enormously satisfied because they are actively invested in their own representation, they are fully informed, and both you and your client keep close to what your services cost. Satisfied clients are the best form of further business development, because they tell their friends how attentive you were to their needs.
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