Pre-Suit Investigation

• Author: Andrea Donovan Napp
• Pages: 1-18

Prosecuting or defending a lawsuit requires a signicant investment of

time and resources, both yours and your client’s. Regardless of whether

you represent the plaintiff or the defendant, careful planning, organiza-

tion, investigation, and strategizing are crucial to obtaining a favorable

outcome for your client, whether that means a jury verdict or a settlement

that addresses important business concerns. This process of planning and

evaluating at the outset of litigation is typically referred to as a “pre-suit

investigation.” This chapter explores the practical and legal signicance of

a pre-suit investigation in a business torts case, discusses the components

of a comprehensive investigation, and addresses the importance of docu-

menting your methodology.

I. THE IMPORTANCE OF PRE-SUIT

INVESTIGATIONS IN BUSINESS TORTS CASES

Conducting a thorough pre-suit investigation is important for many rea-

sons, some pragmatic, some tactical, and some required by law. As a matter

of basic practice, plaintiffs must conduct an investigation sufcient to

support the allegations of their complaint. Indeed, Federal Rule of Civil

Procedure 11 requires that the individual signing the complaint ensure

that “(2) the claims, defenses, and other legal contentions are warranted

by existing law or by a nonfrivolous argument for extending, modify-

ing, or reversing existing law or for establishing new law; (3) the factual

contentions have evidentiary support or, if specically so identied, will

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CHAPTER 1

Pre-Suit Investigation

Andrea Donovan Napp

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likely have evidentiary support after a reasonable opportunity for fur-

ther investigation or discovery.”

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Rule 11 likewise requires defendants to

certify that “the denials of factual contentions are warranted on the evi-

dence or, if specically so identied, are reasonably based on belief or a

lack of information.”2 Neither plaintiffs nor defendants can reliably make

the required representations of accuracy and nonfrivolousness without

conducting some form of factual or legal investigation.

The penalties for failure to comply with Rule 11 are severe. A court may

impose sanctions on you and your client, either on a party’s motion or sua

sponte, including, but not limited to, dismissal, payment of the opposing

party’s attorneys’ fees, or a monetary ne. Imposition of sanctions can also

expose counsel to a potential malpractice claim. Thus, you should conduct

an in-depth investigation before signing any pleadings.3

Even if a rule or statute in the jurisdiction in which you practice does

not expressly require a pre-suit investigation, conducting an investigation

before bringing or defending a lawsuit has several practical and tactical

advantages. Pre-suit investigations enable attorneys to represent their clients

better in a variety of ways, including (1) identifying a proactive litiga-

tion strategy, (2) managing the client’s expectations, (3) preparing for early

motion practice or discovery, and (4) seeking or opposing a prejudgment

remedy or injunction.

A. Mapping a Litigation Strategy

First and foremost, conducting a pre-suit investigation is an invaluable tool

in mapping out a clear litigation strategy at the outset of a matter. Oper-

ating under the time constraints and pressure inherent to the profession,

too many attorneys dive into litigation without identifying a specic end

goal or strategizing as to how to get there. Failure to do so thrusts coun-

sel into a precarious reactionary role, merely responding to the opposing

1. F. R. C. P. 11.

2. Id.

3. While this book focuses on business torts, certain types of cases may be subject to

additional, specic pre-suit investigation requirements, such as federal patent cases or medi-

cal malpractice actions in many jurisdictions.

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