Litigation Tips and Tactics

• Author: Leonard Bucklin
• Pages: 85-136

31-1 (Rev. 7, 9/11)

31. Litigation Tips and Tactics

Chapter 30 focused on the overall planning

for litigation and the overall delegation of tasks

that need to be done.

This chapter provides targeted advice and

forms for a number of specific situations that

arise in litigation. Use these tactics, tools, and

forms to improve your case, increase your

productivity, and maximize your impact on

your adversary.

§31.1 The Non-Engagement Letter:

A Trouble-Avoidance

Instrument

Potential clients you thought you declined

to represent

For the protection of your reputation and

financial worth, the most important letter that

you might ever write as a litigation lawyer may

be a non-engagement letter.

Lawyers frequently are asked “do I have a

case?”, whether at a cocktail party or in a for-

mal office consultation. If, after a brief conver-

sation, the lawyer decides not to take the case,

what should be done? The answer of some

lawyers is: “Nothing — I didn’t take the case,

so why do more?” Wrong answer. The correct

answer is: “Send a non-engagement letter.”

Let’s take a look at why one answer is wrong;

the other is the right answer.

In November 2007, the ABA Journal Law News

presented the “Ten Top 10 Ethics Traps” for

lawyers. At the top of the list, as Trap #1, was a

court-imposed client relationship because the

attorney failed to send a non-engagement letter.

Every lawyer in Minnesota knows (or should

know) that trap, because of the shockwave in

the Minnesota legal community when Togstad v.

Vesely, Otto, Miller & Keefe1was announced. The

Togstad court upheld a $685,000 judgment

against a fine firm that thought it had declined

a medical malpractice representation, but had

not sent a non- engagement letter. The attorney

testified that he encouraged Mrs. Togstad to

speak to another law firm because he was not an

expert in medical malpractice. The court agreed

with the jury that an implied lawyer-client rela-

tionship had been created, that the firm was

guilty of negligently failing to do more research

for the client before telling her that her case was

weak, and that the firm should have advised the

plaintiff about the statute of limitations that

governed her claim.

The Togstad case is cited extensively in law

journals, and it is perhaps the case most used in

professional responsibility courses when they

reach the question of “who is a client?” Togstad

exemplifies a too-oft-repeated situation in liti-

gation practice. Mrs. Togstad went to a name

partner in a Minnesota firm, seeking legal

advice about medical malpractice which had

left her husband paralyzed. They discussed the

matter for less than an hour at the attorney’s law

office; no fee was ever discussed or billed; no

medical or other authorizations were

requested; no firm file set up; and the attorney

testified that he encouraged her to speak to

another law firm because he was not an expert

in medical malpractice. However, at trial, there

clearly was a dispute between the attorney and

Mrs. Togstad as to what was said at the consul-

tation. Mrs. Togstad remembered that the attor-

ney told her he thought her case was weak, but

he would consult with other attorneys, only get-

ting back to her if she had a viable claim.

The Minnesota law, given to the Togstad

jury, was the law most states have on the sub-

ject. Bluntly stated, (1) a person is the attorney’s

“client” if the person reasonably believes she is

1Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980).

getting legal advice; and (2) it is the attorney’s

professional duty to make clear what he is

telling the prospective client. The lesson of the

Togstad case is threefold.

1. The courts give client protections to a

prospective client if he/she thinks she

was given legal advice.

2. In a battle between a lawyer and a

client, when it comes to misunder-

standings of what the lawyer said,

there will be a lot more sympathy for

the client. It will be assumed that the

lawyer had the obligation to make sure

there isn’t a misunderstanding.

3. The lawyer should write a non-

engagement letter to keep it clear that

he is not the person’s lawyer.

The Restatement of the Law Governing Lawyers

(Third) is relied on by many courts in discus-

sions regarding the lawyer-client relationship.

§15. A Lawyer’s Duties to a Prospective

Client. 1. When a person discusses with a

lawyer the possibility of their forming a

client-lawyer relationship for a matter and

no such relationship ensues, the lawyer must:

(a) not subsequently use or disclose confi-

dential information learned in the consul-

tation, except to the extent permitted with

respect to confidential information of a

client or former client as stated in §§61-67;

(b) protect the person’s property in the

lawyer’s custody as stated in §§44-46; and

(c) use reasonable care to the extent the lawyer

provides the person legal services.

[Emphasis supplied.]

In short, even when there is no client-attor-

ney relationship, to the extent that incidental

legal services are performed (such as express-

ing an opinion on the merits of the matter, or

advising about the statute of limitations), the

lawyer must use reasonable care.

The existence of a client-attorney relation-

ship, and whether the attorney expressed an

opinion, or unreasonably failed to express an

opinion to the client is a fact question, necessar-

ily dependent on the particular circumstances

of the case.2An attorney-client relationship

may be implied from the conduct of the parties.3

“[I]t may arise when a putative client reason-

ably believes that a particular lawyer is repre-

senting him and the lawyer does not disabuse

the individual of this belief.”4The existence of

the relationship does not depend on an express

contract or the payment of fees.5In short, if the

prospective client can reasonably believe the

prospective attorney is giving him/her legal

advice, or will be doing so, there may be an

implied attorney/client relationship. It is true

that the determination of whether a contract of

employment has been reached is made by using

objective standards of what the lawyer and a

possible client said and did, and there also must

be objective indications of the attorney acting

like the prospective client’s attorney.6How-

ever, the required objective manifestations to

find a contract of attorney employment may be

supplied by the plaintiff’s testimony that an

opinion or advice was given.

The differences in the testimony of the client

and attorney in Togstad tell us the primary rea-

son for sending a non-engagement letter —

where the recollection of the attorney and the

recipient differ, the letter may resolve the con-

flict. A letter can correct any wrong impression

the prospective client has that the attorney

advised him of something. Further, a letter

records the conference and becomes powerful

evidence when the oral testimony of attorney

and plaintiff differ.

§31.1 BUILDING TRIAL NOTEBOOKS 31-2

2See, e.g., Moen v. Thomas, 2001 ND 110, 628 N.W.2d 325.

3See, e.g., Storman v. Weiss, 65 N.W.2d 475, 520 (N.D. 1954).

4ABA/BNA Manual, at 31:101.

5See e.g., Disciplinary Board v. McKechnie, 2003 ND 22, www.court.state.nd.us/court/opinions/20020194.htm

6See, e.g., Terrell v. State, 891 S.W.2d 307 (Tex. App., El Paso 1994, pet. ref'd); and Vinson & Elkins v. Moran, 946 S.W.2d

381 (Tex. App., Houston 1997, writ dism'd by agr.).

7Confabulation: To replace fact with fantasy unconsciously in memory, even by the most honest of witnesses.

8See, e.g., Onwuegbusi, Tochukwu Ojiakonobi, The effects of witness note taking and retention interval on eyewitness

memory Dissertation, MSc in Forensic Psychology, University of Leiceste, 2007.

9See, e.g., www. encarta.msn.com/encyclopedia_761578303_5/Memory_(psychology).html , viewed 2 Apr 2008.

The psychology of your client’s memory of

your conference

The simple and dangerous fact is that the

memories of both attorney and a potential client

are likely to differ after a year. For something to

be recalled, it has to pass through short-term

memory before being stored in long-term mem-

ory. Short-term memory is extraordinarily lim-

ited. An hour after an event, the average adult

can recall accurately only seven items (the range

is five to nine) about the event. The phenome-

non is so consistent that it has been dubbed the

“magic number” in social science research.

After seven items about the conversation have

been accurately stored in memory (e.g., the time

of day, who was in the room, the first question

asked) then mistakes in memory start to occur.

Items are stored or recalled inexactly, wrongly,

or not stored or remembered at all. Memory is

faulty for the best intended of persons not only

because of the limited capacity of short-term

memory, but also because of the selectivity of

recollection, and the mind’s tendency to recall

past events as happening “as it should have

been,” leading to confabulations.7

Psychologists generally accept the idea that

long-term memories are reconstructive. Rather

than containing an exact and detailed record of

our past, like a video recording, our long-term

memory begins with a general theme that we

remember (e.g., I had an office call with lawyer

Jones); then we fit in bits and pieces of remem-

bered detail to develop a coherent story, which

detail may or may not be accurately remem-

bered. Many researchers have shown that our

recalled “theme” of what occurred can distort

the memories of an event. People tend to

unconsciously remove details of an experience

from memory if the details do not fit well with

the recalled general theme. Similarly, people

may confidently remember details that did not

actually occur because they are consistent with

the remembered theme. There is no correlation

between the confidence of an honest witness

that something actually occurred and whether

it actually occurred.8The psychological fact is

that our recollections are reconstructive only,

and thus can deviate greatly from the way the

events actually occurred.9

In summary, if you are going to rely on con-

flicting oral testimony of what you said to a

prospective client in your office, then you are in

for trouble. You must assume that your memory

and the memory of your prospective client are

likely to differ on what you said and whether

you gave advice. The remedy to prevent the

trouble is to write a non- engagement letter.

To which potential clients you thought

you declined to represent do you write,

and when do you write?

Should you send a non-engagement letter to

every office visitor who sees you but you do not

sign up with a retainer agreement? YES.

Should you send a non-engagement letter to

telephone callers you do not sign up as clients?

Probably. You should if there was a discussion

of the matter’s particulars, or if there was any-

thing that the telephone caller might interpret

it as opining on the merits of the matter. A non-

engagement letter should be sent to anyone to

whom statements were made which could be

interpreted as legal advice or as a statement of

opinion, or if as a result of your statements, the

individual receiving them might be injured if

you were wrong.

Your non-engagement letter should be

issued as soon as you decide you don’t want the

case, because an implied attorney-client rela-

tionship may be found to exist until you do. As

the Restatement says, when a lawyer interviews

a prospective client, duties of confidentiality

and the safekeeping of papers and property

attach immediately. The attorney must be care-

ful, because as soon as the prospective lay client

thinks that the conference is confidential, or as

soon as you review papers before deciding on

taking a case, then he/she is likely to presume

and store in memory the theme that you are

“my attorney.” In the absence of written proof

to the contrary, it is the client’s perception that

probably will carry the day in court. When there

31-3 LITIGATION TIPS AND TACTICS §31.1

(Rev. 4, 8/08)