Litigation Tips and Tactics

AuthorLeonard Bucklin
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
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.
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,
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. , viewed 2 Apr 2008.
The psychology of your clients 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
(Rev. 4, 8/08)

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