1973, January, Pg. 1. The Timing of Trial Preparation in a Civil Action.

• Author: by Donald K. Bain

2 Colo.Law. 1

The Colorado Lawyer

1973.

1973, January, Pg. 1.

The Timing of Trial Preparation in a Civil Action

1Vol. 2, No. 3, Pg. 1The Timing of Trial Preparation in a Civil Actionby Donald K. BainDonald K. Bain, Denver, is a partner in the firm of Holme Roberts and Owen.In a broad sense trial preparation in a civil action begins as soon as the client has called to say that he is involved in a dispute and needs advice. Sometimes the client will call as soon as the first angry voice has been raised; other times he will not call until an impasse has been reached or suit has been commenced. Whichever the case, preparation for trial must start immediately.

Getting the FactsInvariably, you must first get the facts. Although every witness should be interviewed and all written materials inspected as quickly as possible, the extent of initial investigation will vary from case to case. Your goal in preliminary fact-gathering is to get enough reliable information to permit you to formulate a reasonably reliable working hypothesis and to draft a proper pleading. The balance of your fact-gathering can often be postponed, particularly where it will be expensive and there appears to be a good chance of early settlement.

Typically, your first and primary source of information is the client. If the client is a large corporation, it may have investigators or house counsel who have done the initial work. If so, your task will have been simplified. The relevant documents will probably have been collected and the company personnel involved interviewed. House counsel may have analyzed the case and perhaps tried to resolve it before retaining outside counsel. The retained lawyer, however, should decide for himself whether the initial work by the client's staff has been done by persons with adequate experience in developing and evaluating facts. If you have doubts, retrace their steps and satisfy yourself as to the accuracy of their work.

With the individual client, you will usually not have the benefit of preliminary work. In addition, the client may not recall the facts accurately and he probably will not be experienced in analyzing facts. Also, he may not be able to articulate the facts he knows in a coherent, chronological fashion. Almost certainly he will not have an accurate understanding of their legal relevance (although he is likely to think he does). A minimum of three interviews with the client (or any important witness) is usually required before you can be reasonably sure you have obtained an accurate understanding of the client's knowledge. Nevertheless, you should interview the client thoroughly as quickly as possible and obtain all information that he may have,

2including the names and addresses of potential witnesses.

At the first interview it is most important to instruct the client to preserve all written materials which may have any bearing on the case and to keep them available for you. In the case of the corporate client, instruct the client to take affirmative steps to see that documents are excluded from the client's regular record destruction schedule.

In many cases, you must do more investigation at the outset than interview the client. There will often be cases where an interview with the client will not provide sufficient information for a preliminary evaluation of the case. The client's information, for example, may be hearsay. His claim may be based on books and records or the facts may reside with a key witness. You may sometimes find it necessary to verify the facts the client has given you. Further investigation may be as simple as asking the client to gather the records involved for your review or it may be as complex as working with an expert retained to investigate and analyze the evidence available.

Certainly, any witness whose testimony is crucial to the case should be located and a statement obtained from him as promptly as possible. This is particularly important if the witness is subject to influence by the opposing party.

Promissory notes, checks, contracts or other documents which are vital to the case should be located and examined immediately, and put in safe keeping.

Checking the LawOnce you have obtained a preliminary version of the facts, you must determine whether the facts will support a claim for relief, or, if you represent the defendant, a valid defense.

In routine cases no research will be needed initially in advising the client and evaluating his legal position. The experienced lawyer will probably already be familiar with the substantive law of the case. Nevertheless, it is often prudent even for the experienced lawyer to review the elements of the claim in question, as well as the defenses to it. Except in the simplest cases, you will usually find that the law is not exactly as you have recalled it and, of course, there is always the possibility that your recollection has been superseded by legislation or case law since you last looked. A preliminary review of the law will not only aid in evaluating the client's case, but may even help perfect it. For example, there may be conditions precedent to a claim which must be performed. It is embarrassing to have a suit on a guaranty dismissed because of a failure to make a demand for payment before suit. At the same time a review of the law, particularly by a defendant's attorney, may point out areas where the opposing lawyer has neglected to do his research.

In cases that are not routine or where the lawyer's background is limited, extensive legal research may be required for an initial evaluation of the case and for developing a working hypothesis. Many lawyers have learned to their chagrin during their last-minute trial preparation that their claims or defenses are lacking in merit.

If research discloses that the client's claim is weak, he must be told promptly so that the weakness may be evaluated and an intelligent decision made as to whether and how to proceed. It is inexcusable to delay this until substantial time and money have been invested in the case.

In addition to reviewing the substantive law of the claims and defenses, you must look into various threshold legal issues. These include the following:

Can personal service be made on the defendant?

If the defendant is outside of the jurisdiction, is he subject to a long-arm statute or is there another basis for extraterritorial service of process?

What court has jurisdiction over the subject matter of the claim?

Where does proper venue lie?

If the...