ABA Section of Litigation
Whether you agree with Confucius (“Success depends upon previous preparation.”), Steve Jobs (“If you really look closely, most overnight successes took a long time.”), or Paul “Bear” Bryant (“It’s not the will to win that matters—everyone has that. It’s the will to prepare to win that matters.”), our professional responsibility dictates thorough pretrial preparation and investigation as the cornerstone of undertaking any legal matter. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” ABA Model Rule 1.1. You owe it to your client, you owe it to the court (ABA Model Rule 3.1), you owe it to third parties (ABA Model Rule 4.4), and you owe it to yourself (ABA Model Rule 1.16).
Evaluation of Facts and Applicable Law
In order to be able to advise your clients of the risks and benefits, problems and exposures, and potential consequences of any contemplated action or defense, thorough prelitigation investigation and preparation are needed to evaluate the facts and the law, form a plan, and execute it properly. Nothing can harm your reputation and your business more than to be perceived as, let alone accused of, bringing or defending a proceeding or an issue for which there is no basis in law and fact.
At a minimum, counsel should consider the following in evaluating the facts and the applicable law:
- What are the client’s objectives, and are they for a proper purpose? (For new clients, counsel would be well-served by vetting them pretrial as though counsel were the opposition.)
- What are the merits of the positions of the parties?
- Are there issues of standing, mootness, or issue preclusion?
- Are there both liability and recoverable damages, both as a matter of law and as a matter of fact (i.e., is it collectible?)?
- If so, what are the challenges presented by each of these prongs?
- Are there alternative or collateral sources of recovery, and how can they be obtained?
- What research is needed before developing case theories and themes?
- What are notice and timing requirements, if any?
- What strategies are best suited for the circumstances?
- Are there conditions precedent to bringing an action or asserting a claim?
- Are cross-claims and third-party practice anticipated, and, if so, will the client’s matter be directly involved such that evaluation of these other considerations is affected?
- Should forum selection be evaluated, and what hurdles does it present?
- Are there choice of law issues?
- What evidentiary issues exist, and what challenges present themselves for admissibility?
- Is engaging an investigator advisable? If so, when?
- Should any witnesses be interviewed first?
- What background information is available and needed, and what are the permissible limits of obtaining it?
- Are there employee contact issues for any witnesses?
- What discovery is envisioned, and what is the likelihood of a discovery plan or schedule?
- What are the expected costs of discovery?
- Are there sequence, timing, jurisdictional, or privilege issues?
- Should you plan for discovery litigation?
- How will data be collected and organized, and what is the proportionate expense to do so?
- What are the sensitive elements of this data that you should expect?
- Will there be potential preservation or spoliation issues? How should they be planned for and addressed?
- What challenges are presented by electronically stored information? How will you protect data before, during, and after data has been produced?
- Is expert testimony or testing necessary? If so, when should expert(s) become involved and the cost of experts considered?
- What will be the case theory or theories?
- Will there be one or more themes, and is having alternatives (such as in the pleadings) helpful or harmful?
- Are the theories and themes marketable to a judge, jury, or some other neutral?
- What alternatives to litigation are available, and when is the best time (for instance, presuit or postdiscovery) to explore them?
- Is the claim or defense better suited for a judge, a jury, or some other neutral determination?
- What intelligence is available about opposing counsel, the judge, arbitration panel, or other involved neutrals, and how does that impact other strategic calls?
- Which of the foregoing require ongoing evaluation and reassessment, and how often?
- Given the foregoing, what is the proposed litigation budget?
Evaluation of Opposing Reactions
In developing a case theme and supporting theories, counsel should give careful attention to the claims or defenses that should be brought and which ones should be avoided. Anticipating and preparing for the range of potential reactions from the other side, as well as affected third parties or witnesses, must be factored into any evaluation and decision making.
Evaluation of Notice Strategy
Similarly, strategy considerations are necessary in terms of weighing the benefits and disadvantages of providing detailed information early in a matter or leaning more toward providing only general notice. Factors include the strength of the respective positions and whether leverage may be gained or lost in choosing whatever degree of “free” information is being provided.
The iconic UCLA coach John Wooden once said, “When opportunity comes, it’s too late to prepare.” Not only are diligence and promptness at the forefront of our professional responsibility, but preparation and success are directly proportional to each other in our practice.