Planning and Delegation

AuthorLeonard Bucklin
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
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.
§30.4 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
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.
(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

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