Pre-Suit Investigation

AuthorAndrea Donovan Napp
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.
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
Pre-Suit Investigation
Andrea Donovan Napp
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likely have evidentiary support after a reasonable opportunity for fur-
ther investigation or discovery.
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.
B  T: A P  G  L 
Nelson_BizTorts_20140514_15-35 Confirmation Pass.indd 2 8/12/14 10:25 AM

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