September 7, 2012 By Charlie Rose
Given the advantages of joinder, and the res judicata risk of not asserting all possible claims, what would be the reason to refrain from stacking multiple claims together against your adversary in a lawsuit? Let’s consider three primary potential disadvantages that come immediately to mind. First, surrounding one good claim with many weaker claims does not enhance the quality of the lawsuit or create any leverage for settlement. In fact, it has the opposite effect. If your client’s circumstance gives rise to only one relatively strong claim, then focus on that claim and do not bother with other weaker claims. There are three primary audiences for your assertion of claims–opposing party and counsel, the judge and (someday) the jury. Each audience will be unimpressed by your lawsuit if you disguise your one meritorious claim with claims of questionable value. Your opposition will be less inclined to pay you top dollar to settle, the judge may be more inclined to dismiss the entire lawsuit if there are too many unsound claims attached, and a jury might just conclude at trial that your efforts to stretch signify a frivolous lawsuit.
Second, the more claims you assert the easier it is to lose focus and begin diverting your attention to the non-essential claims. If you are working on a contingency fee you can end up spending too much time and resources thinking about and pursuing claims that may not really add any value to the litigation.
Third, just as asserting more claims increases the cost of defense for the defendant, this practice can easily increase the cost for the plaintiff or plaintiff’s counsel (depending upon the nature of the fee arrangement). It may not cost much to dictate an additional count when drafting your complaint, but each new count may cause you to respond to a motion for summary judgment or other motion attacking the claim’s merit, it will almost certainly increase the scope of discovery and may make formal discovery tools more expensive in their application. A plaintiff’s deposition, for example, in a case with one count tends to be shorter than a plaintiff’s deposition in a case asserting six counts.
Since there are both advantages and disadvantages to stacking multiple claims together, one approach will never fit all circumstances – there is no one right approach. You should consider all of these factors when deciding in the context of your specific case which approach is better for your client and worse for the opposing party. Finally, due to the fact that complaints can be amended, you are not stuck with the original conclusion all the way through to trial, since a method exists to add or delete claims after the original case filing.
The only other rules of great general significance concerning the joinder of claims are those that govern the filing of counterclaims, cross-claims and third-party claims. That, however, is a subject for a different blog post.
August 24, 2012 By Charlie Rose
In order to really understand (analyze) your client’s case, you must engage in a fact-finding investigation. This comes in two forms: (a) formal discovery conducted under the applicable rules of civil procedure that is compelled from others; and (b) informal discovery conducted completely outside the ambit of any rules of civil procedure and mostly that which is voluntarily given to the advocate by others. Why is such investigation needed? There are several reasons.
First, you are going to be bound by the facts of the case. You need to know what they are. Many lawyers espouse the theory that cases are won and lost based mainly upon the facts. There is some truth to this because it is the application of the law to the facts that determines outcomes. Remember, the sole purpose of a civil trial is resolve disputed questions of fact. Where significant facts are not essentially disputed, courts typically enter judgment by motion rather than trial. But even in motion practice, before you can determine what the facts are and whether they are disputed, you must first uncover the facts. The facts empower you to obtain the client’s goals.
In a sense, informal discovery can be defined by what it is not. It is not generally governed by any rules, scheduling orders, or official approved techniques. Unlike formal discovery, informal discovery may begin at any time you are considering a possible lawsuit and requires no court permission or supervision. Informal discovery is a short-hand description for the unregulated fact investigation undertaken by an advocate, or under the supervision of the advocate, in order to perform case analysis, garner evidence in support of a client’s claim or defense, discover adverse information that might defeat the client’s claim, or simply to reveal additional sources of information that might bear on the client’s claim.
You will engage in some degree of informal discovery on virtually every case and, in most cases, actually perform such investigation before the case is filed, after it is filed, and continue it up until the eve of trial. It can reveal information more profound than that procured under the rules of civil procedure and yet can be much more cheaply obtained. The strategic use of informal discovery can also be critical because it occurs under your opponent’s radar. Although informal discovery is almost universally ignored in civil procedure courses, it is worthy of discussion for real advocates planning to win actual cases–people like you.
The starting point though is usually with the leads given by the client. The client may have some idea of the identity of other witnesses or involved parties. The client can give you information about where the occurrence in question took place to permit a viewing of the scene. The client may also turn over documents that reference other documents in the possession of third parties that might be obtained on request. Beyond these client-directed sources, think in terms of finding relevant people, documents and tangible evidence using common sense and any real-world experiences. So how do you decide what to look into? Go back and look at how you first analyzed the case, the seeds of where you need to conduct informal discovery are planted there.
How do you decide what information you might need to develop during informal discovery? Case analysis, which we just discussed, is going to be your guide. To this end, you should consider preparing some type of “Proof Chart” which will be helpful in providing organizational structure to the advocate’s intuition. This proof chart, which may be very rudimentary at the outset of the case, will essentially help the advocate determine where their client’s anticipated case has evidentiary strength and weakness. Once you have done that you can move on to supporting areas of strength (corroboration) and trying to find evidence that fills the gaps, or weak areas (substantiation). The chart should have the elements that the law prescribes for the cause of action, or defense, and then apply the facts currently available to those elements. It can serve as an excellent visual reminder that focuses your discovery.
Methods of informal discovery should include witness interviews, Police Departments, Department of Motor Vehicles, Telephone Directories, Public Universities, Credit Reporting Services, County Tax Records , Libraries, Newspapers, Federal Government Offices, Internet, and Post Office. Technology can be particularly useful. I cannot imagine not searching social networking sites to for potential information in this day and age. While witness interviewing techniques go beyond the purpose of this blog, much of what we will discuss concerning depositions will be applicable during interviews as well.
Remember, fact research is just as important, if not more important, than the legal research that you will do for the client. Make sure you know how to make it happen. In our next post we will talk about pleadings and response to pleadings.
August 17, 2012 By Charlie Rose
Every civil matter begins with a client having a legal problem that requires the expertise and guidance of an advocate. The human story underneath the surface of the legal issue is often the most persuasive issue that a jury will have interest in. While this type of persuasive issue is often not controlling during the pretrial litigation, advocates would be well advised to remain sensitive to the issue behind the issue. If and when the case becomes a trial, those human issues become an integral part of case analysis and the development of legal theories, factual theories and moral themes.
At the opposite end from the problem is the prize–the goal sought by the client. Often the client’s goal is clear to the advocate and the client. While a client’s goals may be clear that does necessarily mean they are attainable. Regardless of the legal issue, almost all clients need counseling by their attorney to adjust their expectations or goals for the representation so that the can properly understand what the law will allow. There are other situations where the client is concerned or upset about some situation or occurrence but is not sure what to do. It will be your job to sort through the convoluted tale to find out whether there is any problem for which the law affords any remedy that is feasible. Identifying the prize, and the potential acceptable solutions is often a large part of representing clients. It also leads you to the proper process to make that happen.
In between the problem and the prize lies the process of adjudication– the way in which the advocate most effectively moves their client from problem to prize. This becomes the focus of “the necessary” discussed in an earlier blog post.
Pretrial advocacy begins with the initial presentation of the prospective client to the advocate for consultation and possible representation. The would-be client already has a legal problem at this time and is looking for help in resolving that problem. The process involves a number of intermediate steps once the attorney-client relationship has been formed and the pretrial portion of advocacy concludes in one of three ways–with a (1) court ruling on a dispositive motion, (2) a voluntary agreement to settlement the dispute, or (3) the commencement of a trial.
The seven-step process that represents the “normal” flow of a case includes (1) Formation of the attorney client relationship, (2) Initial case analysis, planning, and preparation, (3) Pleadings and attacks on pleadings, (4) Formal discovery, both written and oral, (5) Motion practice, (6) Settlement, and sometimes (7) trial. We will look at each of these to see if we can identify a checklist of things you should think about.
August 10, 2012 By Charlie Rose
While Pretrial Advocacy is one component of the advocacy experience, and quite frankly an important one, you should always consider where pretrial advocacy fits into the entire litigation process – using it to complement and support the representation of your client. In a certain sense this is a journey to discover how the system of civil adjudication works, to develop pretrial advocacy skills, and to combine your knowledge of the law with your persuasive skills – making you a superior advocate for your client. My ultimate goal is to empower you to put your clients in the best possible position to reach their litigation goals. Regardless of your level of expertise, our time together should help you develop practical and insightful analysis into the dynamics of pretrial advocacy.
We will combine this practical outlook with analysis that offers an appreciation of, and discussion about, the broader issues that matter to advocates everywhere. These broader issues arise under the topics of ethics, professionalism and the major policies implicated by pretrial adjudication in the United States. These broader perspectives help light the way and uncover the pitfalls awaiting unwary litigation travelers. Pretrial Advocacy is one component of the advocacy experience. Superior Advocates will consider where pretrial advocacy fits into the adjudicative process – using it to complement and support the representation of the client.
To appreciate pretrial advocacy, you should reflect upon where the pretrial process fits into civil adjudication. Every civil matter begins with a client having a legal problem that requires the expertise and guidance of an advocate. These legal problems are as diverse as the permutations of human behavior. They spring forth as issues based in large part upon human nature, and the human story underneath the surface of the legal issue is often the most persuasive issue that a jury will have interest in. While this type of persuasive issue is often not controlling during the pretrial litigation, advocates would be well advised to remain sensitive to the issue behind the issue. If and when the case becomes a trial, those human issues become an integral part of case analysis and the development of legal theories, factual theories and moral themes.
I call this approach to taking care of clients the Problem, the Prize, and the Process. In my next post will talk about how to use that structure to get started.
August 3, 2012 By Charlie Rose
Learning how to perform competent case analysis and conduct adequate initial preliminary case preparation and planning is crucial. Doing these things–and doing them well–often is what separates the extraordinary from the merely competent in pretrial advocacy. To accomplish the first of these tasks–case analysis–you must choose an organizational construct that processes information, prioritizes the value of that information and then identifies crucial legal and factual issues applicable to the case.
The choice for how to do this is as varied as the Advocates who analyze cases. Many different types of organizational techniques exist allowing you to get a handle on this process, but not all techniques are created equally. This is an important step, because the way you conduct case analysis has long-term consequences. It affects the clarity and persuasiveness of your position throughout the litigation, and either assists you or prevents you from identifying potentially case dispositive issues at a point where they can be properly addressed.
A superior case analysis (1) assists advocates in understanding the relevant legal and factual issues, (2) brings clarity and focus to the issues the advocate wishes to emphasize, and (3) provides a moral theme for the duration of the pretrial phase of litigation with a view toward enabling a jury to decide the case in the client’s favor in the event trial becomes necessary. So how to do it? There are seven general steps that you normally perform when you get a case. They include:
• Organize the case file: use chronologies, time lines and topics
• Identify the procedural and substantive legal issues
• Identify the factual issues: separate facts into the good, the bad and the downright ugly
• Connect the facts to the law
• Identify the moral theme: the sense of injustice, or “the most appalling thing”
• Plan your presentation in reverse: from closing argument through the case-in-chief to opening statement (consider your opponent’s case as well)
• Verify the evidence: ensure that you have the witnesses to admit sufficient evidence to support your legal theory, factual theory, and moral theme.
While case analysis is certainly the starting point for the planning and preparation of the new case, it is also an undertaking that continues throughout the entire course of the proceeding – it permeates virtually every aspect of pretrial advocacy. Despite those facts, it is only one part of the preparation and planning for litigation. You need to undertake additional tasks and face other key issues at the beginning of the case. Much of the informal fact investigation into the merits of both the possible claims and defenses that have been or might be raised occurs now. If you represent the claimant you will need to address other vital concerns at the outset such as considering what claims to join together and determining what other persons or entities should be made a party to the anticipated lawsuit either because of strategic importance or legal necessity. In general terms if you use the 7 following steps you will be on the right track. They are:
• Case Analysis
• Informal Fact Investigation
• Joinder of Claims
• Additional Parties
• Subject Matter Jurisdiction
• Personal Jurisdiction
As you might imagine, these seven steps capture the essence of an entire course in civil procedure by placing it in context as you represent clients. Once you’ve identified the lay of the lay land so to speak, things get interesting. Let’s look at the informal discovery process.