Planning and Delegation

• Author: Leonard Bucklin
• Pages: 17-84

30-1 (Rev. 6, 6/10)

30. Planning and Delegation

Power Litigation™ starts with management

knowledge of how to order the flow of all the

cases for which you are responsible. This chap-

ter has key overarching strategies for being the

most productive (and most financially success-

ful) litigator you can be.

§30.1 Minimize Your Time, But

Maximize Your Impact (and

Your Income)

Power litigators use modern business man-

agement techniques. Their case results, and

their income, contrast to those of litigators who

are not good business managers. Litigators

need to know business management skills. Each

case is a business project with an objective. Your

resources of time and money need to be spent to

reach the objective. Unfortunately, law schools

do not teach business management, nor do they

even teach methods of managing one single

case in a way to minimize effort and maximize

results. After law school, most litigators are so

caught up in day-to-day activities that they

never stop to study how their business manage-

ment impacts their litigation.

The strategy of a litigation practice involves,

among other things, management of your

resources. You manage your time and your

staff not only for a single case, but for the total

flow of your entire business, whether you are a

single practitioner or only one of a squad of

trial lawyers in the office. You want to stand

out as the power litigator, handling more cases

faster, better, and smarter.

The goal is to minimize your expenditures of

time, and at the same time, maximize your

impact on your adversary. So let’s start out by

examining how you can do this.

TPlan and prioritize the general course of

all the litigation in your office (such as

general strategy with your adversary, or

internal office prioritizing of cases);

TDelegate tasks to others (considering

not only what to delegate, but also how

to do it with modern business effi-

ciency practices);

TTake the best initial steps with the

client (such as your retainer agreement

and your ESI instructions); and

TProtect yourself (for example, use

methods to protect against missing a

deadline, and have a checklist of what

to do if you do miss one).

In this chapter, for purposes of illustration of

a general tip on handling litigation, we give

you a few discovery forms. For example, the

section in this chapter giving the general advice

of “Keep the Other Side Reacting” is followed

by four sections which illustrate that thesis by

giving you discovery examples with forms you

can use to “keep the other side reacting.” How-

ever, this chapter focuses on the general move-

ment of all your cases, not on discovery per se.

§30.2 Move First; Keep the Other

Side Reacting

“Move First; Keep the Other Side Reacting”

is a simple concept, but it is a powerful concept.

It should be your primary rule as you decide

what to do in a particular case.

There are only a limited number of hours in

a day or week. Two main time commitments

prevent you from doing everything that needs

to be done on the case you want to move for-

ward affirmatively. (Let’s call that case your

“Jones Case.”)

• The time you must commit to working

on other cases in your office, leaving

only a limited time for work on the

Jones Case; and

• The time you must commit (out of your

Jones Case time) to responding to your

adversary’s moves in the Jones Case,

primarily his/her discovery initiatives

and motions.

It is only after you have gotten rid of those

two time commitments that you can work affir-

matively on the Jones Case.

The attorney on the other side has the same

pressures! Therefore, if you can force opposing

counsel to spend time responding to you,

instead of spending his/her time initiating

his/her own discovery initiatives and motions,

then you will have accomplished a great deal.

You will have freed yourself of the time com-

mitment needed to respond to your adver-

sary’s moves and have placed an extra time

burden on your adversary.

This is why, in litigation, the race favors the

swift. If you are the first to move, the other

side has to react. During the time they are

reacting, you can prepare for your next move.

The other side is kept in a reactive mode, not

a proactive mode.

I am not talking only about discovery, which

is the most common method of keeping the

other side off balance. I am talking about the

entire course of the litigation. If you can force the

other side, by reacting to you, to use up their

available limited time for your case, they will not

be moving their own side of the case forward.

Let’s look at examples of how to move

aggressively, and keep the other side busy

responding to you. First, a plaintiff’s example,

then a defendant’s example.

§30.3 Plaintiff’s Example — Do Not

Tolerate Nonresponsive

Answers

When paragraphs in the answer do not

seem to apply to the case at hand, do not

ignore them. The defense attorney might

know something that you do not. Find out

about these items, particularly if the statute of

limitations has been asserted and time is run-

ning out. In addition, by attacking the answer

in the opening weeks of the case, you put the

defense attorney to work responding instead

of moving the defense discovery forward.

A good way to attack a nonresponsive

answer paragraph is to fire off a request for

admission that states the opposite, demand-

ing that the defendant admit or deny it.

Defense counsel then might have to admit a

present lack of information to support the

defense, and the possibility of Rule 11 sanc-

tions will loom in the background—a satisfy-

ing byproduct of your counter-move. This

tactic can also help to make the defense more

cooperative during discovery, since you

could have the leverage of an unresolved

Rule 11 violation by the defense.

Assuming that the answer raises the unwar-

ranted defense of lack of proper service of

process, try sending a request like the following.

§30.3 BUILDING TRIAL NOTEBOOKS 30-2

§30.4 Form: Request for Admission to Defendant

The Rules of Civil Procedure require that:

1. For a matter to be pleaded, at the time of pleading you must have factual information that pro-

vides a reasonable ground for you to prevail at trial.

2. For a matter to be denied on a request for admission, you must have factual information that

provides a reasonable ground for you to prevail at trial.

3. You may not give lack of information as a reason for failure to admit the following items (unless

you state that in fact you already have made a reasonable inquiry to ascertain any reason-

able ground to believe that you might prevail on this matter).

4. An assertion that the request presents an issue for trial is not a proper response.

We have noticed that you have pleaded a defect in service of process, but that your required ini-

tial disclosure under Rule 26 does not show any document or person with a “subject of information”

related to that pleaded defense.

To give you an opportunity to mitigate damages caused by your apparently frivolous pleading, you

are given the opportunity now to respond, within the time limits set by the Rules of Civil Procedure, to

the following Request for Admission and to amend your pleading if appropriate.

Request No. 1: The service of process in this case was proper.

Response No. 1: Admitted:___ Denied:___

§30.5 Defendant’s Example — Use

Interrogatories or Requests

Aggressively

Most defense attorneys have never grasped

the power of responding with both an answer

and a set of interrogatories. This simple tactic

impresses both the plaintiff’s attorney, and also

your defendant client, and also your client’s

insurer with your efficiency and dedication to

the cause of defense. It is important to make that

impression. Your defendant client will listen to

you best if he/she thinks you are aggressively

defending. The insurer rarely sees defense attor-

neys that immediately take the initiative; you

will stand out from the pack when the next

defense case comes up for assignment. Best and

most important of all, this simple tactic requires

the plaintiff’s attorney to invest valuable attor-

ney time in responding to you, rather than

attacking you. Whichever side takes the initiative

in litigation, and puts the other side’s time assets

into a responsive mode, is the side that initially

controls the timing and course of discovery.

If your jurisdiction is one that does not require

an initial exchange of information without for-

mal discovery, your answer should always be

accompanied by your initial set of interrogato-

ries. But what if you are in federal court or a state

jurisdiction that requires an initial exchange of

information between the parties before the

defendant can serve discovery interrogatories?

In such a jurisdiction, you cannot serve a set of

interrogatories with your answer. How do you

still gain the initiative and power of putting the

plaintiff’s attorney staff into responsive mode?

The answer: you can send letters that have the

same effect as discovery; thus switching a plain-

tiff’s legal staff (and their available time) out of

attack mode into reactive mode.

For example, assume you have a bodily-

injury defense. Send a letter asking for the

plaintiff’s signed authorization to inspect med-

ical records plus a complete copy of all of plain-

tiff’s medical records in the possession of plain-

tiff or plaintiff’s counsel, plus the sort of

computations that take plaintiff’s staff time to

prepare. Be nice, but insistent that the rules of

procedure for initial disclosure requires an ini-

tial disclosure of all documents that the disclos-

ing party may use to support its claims and a

meaningful, complete-to-date disclosure of a

computation of damages, with all records on

which the computation has been based and all

documents which may be used to support

damages to date. Following is a sample of a let-

ter you can use to gain that initiative in an

aggressive manner. (Remember: send a copy of

the letter to your defendant client and insurer,

along with your answer to the complaint.) It is

difficult for plaintiff’s attorney not to reply, and

thus go on the defensive, because failure to dis-

close an item requested can later be classified as

deliberate failure to disclose.

30-3 PLANNING AND DELEGATION §30.6

(Rev. 4, 8/08)

§30.6 Form: Request for Damages Disclosure

Dear ________,

Re case of ____________________

We have the summons and complaint in this case and are defending. I know that you will be send-

ing us the initial disclosures required by the rules of civil procedure. To avoid any misunderstanding,

I want you to know that specifically in regard to damages, we consider all of the following as items

that will and should be disclosed within your initial disclosure.

This letter is not meant to suggest we anticipate any less from you than is required by the rules; it is

not meant to limit what must be initially disclosed by either of us under the civil rules; and we surely do

not want to sound patronizing. It is only that we want to avoid misunderstanding, and our experience

is that some attorneys have staffs that sometimes overlook items that should be disclosed or do not