Case Evaluation and Strategy

Chapter Objectives

How to establish the terms of attorney-client agreement
How a lawyer’s fee is charged
What steps to take in planning the litigation
How to develop a litigation strategy
What prefiling requirements should be considered

Establishing the terms of the attorney client agreement.

1. Work Covered. The agreement should specify which work will be covered and what work will not. For example will there be an extra charge for an appeal? Will there be extra charges for insurance claims, etc. ?

2. Lawyer’s Fee. What will the lawyer receive for professional services rendered? Fixed rate, hourly rate. Is there a retainer involved?

3. What kind of extra costs might be incurred?

4. Billing. When the fees and costs be billed?

5. Authorization to file suit. The agreement should contain authorization for the lawyer to file suit on behalf of the client. If the client is the defendant in the case the lawyer should have the right to defend the client.

Next Steps.

1.The client should sign authorization forms that allow the attorney to obtain certain records like police reports, DMV records, hospital and doctor records and other government records.

2. The client should be informed about he can and cannot do. Who she should and should not talk to about the case.

3. The client should be informed of what to expect in the execution of the case.

4. Finally, the client should be in the loop. It is important for the attorney to keep the client informed as to what is happening.

Declining Representation.

At time times an attorney may have to decline the case. The matter may not be within the attorney’s area of expertise. The lawyer may not see merit in the case. The lawyer may have a conflict of interest or simply be too busy.

Whatever the reason it is a good idea for the attorney to put the refusal in writing. The letter declining the case ensures that the party clearly understands that the lawyer will not be representing him and can help resolve any question about whether the attorney has a duty to protect the party’s interests even though he has never been a client.

Planning the Litigation

If the lawyer has decided to take the case and you have done the initial work you must begin to develop a strategy for the case. The basic steps in assisting the lawyer in developing a litigation plan are:

1. Reevaluate the client’s objectives, priorities, and cost constraints.

Review what you know about the case and if the situation has changed at all since you decided to take the case on. You’ll also discuss their cost restraints at this time.

2. Define the client’s litigation objectives

If the client’s situation remains the same and litigation is the approach you want to follow help the client decide on the litigation objectives. Remember the client sets the objectives and the attorney decides on how to meet those objectives.

3. Develop a “theory of the case”

Your side of the story is very important. Review what you know to be uncontested and where the opposition is going to argue. Review the witnesses. Will your story “stand up in court”? What will a jury say about your story? Review the facts.

4. Plan the Pleadings

Pleadings are the way your case gets to court. Make sure that the pleadings fit your case. Don’t try to fit your case to your pleadings. It must be the other way around.

5. Plan the discovery

This is generally the largest part of the case and consumes the most time.

a. What facts do you need to establish a winning case?

b. What facts have already been obtained through informal fact discovery?

c. What “missing” facts are still out there?

d. What discovery methods are most effective in obtaining the missing facts?

e. What facts and witnesses need to be pinned down using formal discovery?

f. What restrictions does the budget place on your discovery plan?

g. What order should your execute your discovery plan?

6. Plan the dispositive motions

Dispositive motions can end the trial before it starts. Are you going to make them or is the other side and what should you do to be ready for either case?

7. Plan the settlement approach

Part of you plan should include the possibility of reaching settlement before the trail begins. You can also plan to settle once the case has started. What will you take? What will you offer?

8. Develop a litigation timetable

After the preceding seven steps have been laid out a litigation timetable should be developed. The litigation plan should be flexible, integrated, creative and evolving.

Prefiling Requirements

1.Statutory Notice of Requirements: Some actions, primarily tort claims against governmental bodies have statutory notice requirements that must be completed or the suit will be barred.

2. Contract Requirements. Many contracts, particularly insurance and employment contracts and contracts with governmental bodies have notice and claim provisions in them and these require notice of intent to sue.

3. Mediation, Arbitration and review requirements. By statute and contract, many disputes must be submitted to binding and nonbonding mediation or arbitration before suit can be brought.

4.  Administrative Procedure Requirements. Claims against governmental bodies usually cannot be brought in court until administrative procedures have been followed and exhausted.

5.  Appointment of Legal Guardian. Some individuals are incompetent to sue in their own name and must have a legal representative or specially appointed guardian litigate for them. Capacity to sue is governed by CCP §372.

6. Discovery Before Suit. In certain cases you may want to depose a person before the suit is actually filed if there is risk that this person may die or leave the area. A petition to perpetuate testimony or preserve evidence that complies with CCP §2035 must be filed with the Superior court.

7. Demand Letters. While not legally required, demand letters are frequently used in tort, contract and commercial cases. In smaller cases, demand letters may serve as an impetus to have the other side settle the case before it goes to trial.