Chapter § 2.04 Pre-Suit Investigation and Case Deconstruction

• Jurisdiction: United States
• Publication year: 2020

§ 2.04 Pre-Suit Investigation and Case Deconstruction

[1] Rule 11 Requirements

Prior to filing suit, counsel must engage in an early investigation of the strengths and weaknesses of a plaintiff’s claims. While a case cannot be won based solely on a pre-suit investigation, a case can certainly be lost due to an inadequate one. In fact, the rules of the trial courts mandate pre-suit investigations to prevent frivolous claims being filed. Rule 11 of the Federal Rules of Civil Procedure requires that an attorney bringing claims certify “that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a colorable argument for extending, modifying, or reversing existing law or for establishing new law.”¹⁵ State courts around the country all have similar requirements. In some jurisdictions, the legislatures have also mandated that experts certify that they have reviewed the facts and believe a meritorious case exists prior to a case ever being filed.

Moreover, factual contentions must have evidentiary support or be likely to have evidentiary support after further investigation or discovery.¹⁶ Therefore, to bring a claim and comply with Rule 11 obligations, the plaintiff must fully understand and deconstruct the causes of action it is asserting. Under Rule 11, it’s insufficient for the attorney to blindly accept facts and conclusions offered by the client.¹⁷ Rather, the attorney signing the pleadings is obligated to conduct a reasonable inquiry.¹⁸ Therefore, if the attorney has access to pertinent information, she is obligated to review it.¹⁹ Failure to comply with any aspect of Rule 11(b) obligations can lead to sanctions by the court.²⁰

The Rule 11 pre-suit investigation varies in form for different causes of action. For example, in a cause of action for breach of contract, an attorney may perform an independent review of the agreement that the potential plaintiff claims were breached, evidence available regarding the breach and the case law regarding bringing such a cause of action. In other circumstances, the attorney’s Rule 11 obligation is far more substantial.

Patent law is one area that requires extensive Rule 11 pre-suit investigation. In patent infringement actions, Rule 11 requires that the “attorney interpret the pertinent claims of the patent in issue before filing a complaint alleging patent infringement” and that counsel compare the accused inventions with the patents.²¹ In these situations, while it is acceptable for an attorney to consult with the client, the ultimate Rule 11 conclusions and evidentiary support must result from an independent evaluation by the attorney.²²

Indeed, in satisfying the Rule 11 pre-suit investigation obligation, the attorney is not entitled to rely solely on experts or on the client, even if the client is a virtual expert. In one case, for instance, the Federal Circuit questioned the attorneys’ pre-suit failure to cut open the heads of accused golf clubs to determine whether they infringed the claimed elements of the asserted patent.²³ Although its client was a virtual expert in golf club design who had shown the attorneys the inside of one of the allegedly infringing golf clubs, the court questioned the reasonableness of the attorneys’ pre-suit investigation because their reliance on the client meant they did not have direct knowledge of whether any of the other accused products met the claim elements of the asserted patent.²⁴

In another case, attorneys were sanctioned for seeking a preliminary injunction in a false advertising case because of the attorneys’ unreasonable reliance on an expert report.²⁵ The court concluded that the attorneys and the client had “shirked their responsibilities to conduct a reasonable investigation of or inquiry about” the expert’s test results, which were later determined to have “no probative value whatsoever.”²⁶ The flaws in the expert’s report should have been “readily apparent on any reasonable examination or inquiry,” and thus the attorneys’ reliance upon it was not objectively reasonable.²⁷ Moreover, the court found that, because the expert’s testimony was based upon “obviously invalid and unreliable test results,” the preliminary injunction motion was brought for an improper purpose.²⁸ The attorneys and the client were therefore jointly sanctioned for the reasonable attorney fees and expenses incurred by the opposing party, not only because of the attorneys’ failures under Rule 11 obligations, but also because the client was sophisticated enough to recognize its expert’s flawed testing.²⁹ These are just a few of the many cases demonstrating the importance of thoroughly conducting the pre-suit investigation.

[2] The Plaintiff’s Trial Theme

At their core, trial lawyers are story tellers. From the plaintiff’s perspective, it is counsel’s job to tell the story of what happened to the client and the extent of the damages incurred in a persuasive and coherent manner. The plaintiff’s counsel’s goal is to tell the story of its client’s case more persuasively than its adversary. This is known as the burden of persuasion. Cases are won and lost based upon the trial lawyer’s ability (or inability) to persuasively communicate its client’s story to the trier of fact.

One of the best ways to persuasively tell the story of the plaintiff’s case is by developing an overall case theme. This theme should fit the facts of the case, highlight the strengths, and minimize any weaknesses. The trial attorney should introduce the theme to the fact-finder during the opening statement and remind the jury of the theme throughout the trial. The trier of fact will have thus heard the theme multiple times before the close of evidence. When jurors begin deliberating, favorable jurors will be armed with a tool (i.e., the case theme) to sway undecided...