Chapter 7 Initial Case Assessment Preliminary Fact and Legal Evaluations

• Library: From the Trenches III: Pretrial Strategies for Success (ABA) (2018 Ed.)

Chapter 7 Initial Case Assessment Preliminary Fact and Legal Evaluations Michael D. Shalhoub and Jill Owens

The sun is shining. It is a warm and glorious day. Maybe the golf course is calling, or the beach, or the chair in your yard to enjoy some quality family time. In any event, briefcase in hand, or backpack slung over your shoulder, you are leaving the office early for some well-deserved down time. You are out the door, and your cell phone rings with a call forwarded from your desk. You do not recognize the out-of-town number, but because you are who you are, you answer. The caller is a potential new client, referred to you by a satisfied former or existing client, who wants to talk about a new lawsuit. It does not matter whether it is a plaintiff case or a defense case, you are being asked to represent a new client. You now have preliminary work and analysis to do. Sometimes it can await your much-needed trek to the beach. Sometimes it needs to be dealt with promptly.

A thorough, systematic, early initial case investigation is crucial. Its absence can create frustration later for the client, the lawyer, insurance adjuster, or in-house counsel, as the case moves into later phases. Facts not discussed at the outset may become lost or confounded by fading memories. Important documentation not required to be preserved, gathered, and provided at the earliest stage of the representation may become lost. Witnesses not identified, investigated, located, and their evidence gathered and stories "pinned down" early may move, retire, forget, or leave a client's employment, and in doing so potentially become hostile to the client's litigation interests. The savvy trial lawyer learns to avoid pre-trial regrets about what should have been done during early investigation and factual and legal evaluation.

The attorney who undertakes a disciplined, systematic case investigation will also appear to the client, whether an in-house attorney or private individual, as organized and efficient. On the other hand, a haphazard start will lead to later frustration and a mental note by the client of the attorney retracing steps. A busy client will not take kindly to being asked a second time for documents already provided at the outset of the litigation, but not reviewed and assimilated or cataloged properly to avoid a repetitious request. Such perceptions can have obvious implications on a client's decision regarding which attorney to retain the next time they are sued, or need to bring a lawsuit or claim.

Attorneys for plaintiffs, as a matter of ethical obligations, and as a practical matter, have much more work to do up-front from the standpoint of initial fact gathering and legal evaluation than defense lawyers. Naturally, plaintiff's counsel must be first to plead and generally bear the burden of proof at trial, so their evaluation of the facts and applicable law necessarily pre-dates the complaint.

As to plaintiff's counsel's ethical obligations, Federal Rule of Civil Procedure Rule 11(a) requires every pleading to be signed by the attorney of record. Rule 11(b)(3) provides that by presenting a court with a signed pleading, the signer is certifying that based on "inquiry reasonable under the circumstances," to the best of their knowledge, information, and belief the facts plead have evidentiary support, or, if so identified, will have such support after a reasonable opportunity for further investigation or discovery. The phrasing of Rule 11(b)(3) signifies that reasonable inquiry into the evidentiary basis for factual allegations contained in an initial pleading is not optional. Thus, plaintiff's attorneys engaged on a new matter are required to pause before filing a complaint with the court, and not do so until they have investigated the factual and legal bona fides of the intended claims.

Most states have corollary rules to Federal Rule of Civil Procedure Rule 11 modeled after the federal rules. In general, the reasonable pre-suit inquiry may not be limited to a conversation with the client. Where such preliminary investigation beyond a conversation with the client could have objectively established that the claim is not grounded in fact or law, the lack of appropriate research could result in sanctions. Plaintiff's counsel should, in all cases, attempt to confirm what the client said in fact occurred. This corroborative investigation must be objectively reasonable, and should proceed from the detailed interview of the client to a review of available documents, including those provided by the client at the outset, and those that are publicly available. In addition, there should generally be both an interview of witnesses identified by the client, and collection of pertinent documentation that is obtainable even if not in the client's possession. In addition, there are many circumstances when there are complexities, and consultation with an expert is needed.

Plaintiff's attorneys should be aware of particular state's requirements impacting the need for pre-suit expert consultation. For instance, since 2005, in Connecticut, medical malpractice plaintiffs are required to demonstrate a good faith belief that there has been medical negligence by filing with their pleading a written and signed opinion letter of a similar health care provider that there appears to have been negligence, including a detailed basis for the formation of that opinion. Other states have similar requirements affecting suits against professionals.

Beyond these ethical requirements, other up-front, fact gathering responsibilities particular to plaintiff's counsel include critical timing issues such as the expiration of statutes of limitations. Consideration of the applicable statute of limitations should be undertaken immediately and researched where necessary. By including this inquiry at the earliest interaction with the potential client, key facts can be gathered that might bear upon whether an extension of the statute of limitations exists because of, for instance, the "discovery rule," or where a wrongful death case brought late and dismissed because the decedent's personal representative was awaiting official appointment by a probate court is able to be reinstituted.

Attorneys for defendants also have "up front" work at the time of their engagement. Timely answering the pleading in an informed, accurate manner is, of course, on the list. Federal Rule of Civil Procedure Rule 11(b)(4) imposes on defense counsel a similar mandate to the rule relating to pre-suit factual investigation, that a responsive pleading containing denials of factual contentions have been signed by counsel of record who certifies by signing that the denials are reasonably believed to be warranted by the evidence. Such a certification can only be done accurately after having undertaken a reasonable investigation of the factual bases for the responses prior to serving the answer.

The Initial Interview

Attorneys for either side are wise to initially conduct a detailed "what is this all about" inquiry with their client—some part of this process may be delegated to a paralegal, but our view is that discussions and assessments of the critical part of a claim or defense is best done, and perhaps only done, under the direction of an attorney. Generally, this preliminary fact-gathering inquiry will include an initial interview or interviews of the client or the involved people at the entity client. If the client is an individual, or you are...