Pre-Suit Activities

• Author: Jennifer Duncan-Brice
• Pages: 57-90

2-53

Chapter 2

Pre-suiT aCTiviTies

QUICK VIEW

Definition: After you have decided to accept representation of a client, you must undertake a number of pre-suit

activities to ensure that:

• You have a good faith basis for filing a lawsuit.

• The case is winnable.

• The potential recovery merits undertaking the expense of preparing and litigating the case.

Scope: Investigating the case. Communicating with the opponent and opponent’s counsel. Prefiling requirements:

notices and demands. Dealing with insurance carriers, your client’s, and the opponent’s. Planning for litigating the

case. Deciding what causes of action to allege, when to file, and where to file. Conducting pre-suit discovery.

Strategies and Tactics:

• Investigate the facts thoroughly to ensure that the case is filed in good faith and has a substantial chance of

recovering your investment.

• Be sure that you have served all necessary pre-suit notices and demands.

• Exhaust available pre-suit measures for resolving the action before filing.

• Plan your lawsuit carefully to make sure that you have covered issues such as necessary and appropriate

parties and causes of action, and tactical issues such as where and when to file the complaint.

Statutes and Rules: Good faith in filing a lawsuit is required by SCR 137. Pre-suit notice to various government

agencies is required by 70 ILCS 3605/40; 745 ILCS 15/3; and 775 ILCS 5/7A-102, among others. Pre-suit notice

of intent to file an action in the Court of Claims is required by 705 ILCS 505/22-1. Pre-suit discovery is covered

by SCR 224. Preserving testimony before suit is filed is covered by SCR 217.

Related Topics: Taking the Case, Ch 1; Settlement and Alternative Dispute Resolution, Ch 32; Parties, Ch 12;

Personal jurisdiction, Ch 7; Subject Matter Jurisdiction, Ch 6.

Forms: See digital access for the following forms:

• Form 2:10, Request for Accident Report.

• Form 2:20, Request for Copy of Traffic Ticket.

• Form 2:30, Authorization to Release Employment Records.

• Form 2:40, Request for Employment Records.

• Form 2:50, Authorization to Release Medical Information.

• Form 2:60, Request for Medical Records.

• Form 2:70, Request for Aerial Photo.

• Form 2:80, Notice of Claim Against State.

• Form 2:90, Settlement Demand Letter.

• Form 2:100, Notice of Attorney’s Lien.

IllInoIs PretrIal PractIce 2-54

• Form 2:110, Request for Policy Limits.

• Form 2:120, Settlement Demand (Policy Limits).

• Form 2:130, Petition for Discovery Before Suit (Products Liability Case).

• Form 2:140, Petition for Discovery Before Suit (Assault Case).

TABLE OF CONTENTS

I. Investigation

A. Preliminary Considerations

§2:01 Purpose

§2:02 Satisfy Good Faith Requirement

§2:03 Determine Whether Claim Is Winnable

§2:04 Determine Whether Investigation Is Cost-Effective

§2:05 Anticipated Cost of Investigation

B. Methods and Sources for Investigation

1. PRELIMINARY CONSIDERATIONS

§2:10 Use Only Necessary Methods

§2:11 Possible Methods

§2:12 Importance of Investigation

§2:13 Obtaining Investigation Assistance

2. WITNESSES

§2:20 Get Witnesses’ Statements

§2:21 Interviewing Your Client

§2:22 Ask About Potential Parties

§2:23 Interviewing Third-Party Witnesses

§2:24 Obtain Existing Witness Statements

§2:25 Sources of Statements

§2:26 Obtain a Signed Statement

§2:27 Consider Taping Interviews

§2:28 Conduct Interviews Personally

§2:29 Opposing Party or Counsel

§2:30 Court Reporter

§2:31 Right to Interview Witnesses

§2:32 Use of Statements

3. DOCUMENTS

a. Preliminary Considerations

§2:40 Client’s Documents

§2:41 Other Documents

§2:42 Public Records

b. Types of Documents

i. Police Reports

§2:50 In General

§2:51 When Reports Must Be Prepared

§2:52 How to Obtain Copies

§2:53 Responsible Agencies

2-55 Pre-suIt actIvItIes

§2:54 Admissibility at Trial

§2:55 Information Obtainable

ii. Tax Returns

§2:60 How to Obtain

§2:61 Use at Trial

iii. Wage Information

§2:70 From Employer

§2:71 Self-Employed Persons

§2:72 Lost Benefits

§2:73 Unemployment Records

iv. Medical Records

§2:80 Patient’s Right

§2:81 Obtaining Records — Authorizations

§2:82 Copies — Costs

§2:83 By Subpoena

v. Medical Bills

§2:90 From Provider

§2:91 From Other Sources

vi. Other Documents

§2:100 Repair Bills and Estimates

§2:101 Government Records

4. PHOTOGRAPHS AND VIDEOTAPES

§2:110 Potential Sources

§2:111 Aerial Photos

5. PRIOR LITIGATION INFORMATION

a. Preliminary Considerations

§2:120 Public Records

§2:121 Civil Case Files

§2:122 Appellate Court Files

§2:123 Criminal Case Files

§2:124 Coroners’ Inquests

§2:125 Workers’ Compensation Claims

§2:126 Certified Copies

b. Previous Testimony

§2:140 Deposition Transcripts

§2:141 Trial Transcripts

6. IDENTIFYING LEGAL ENTITIES

§2:150 General Considerations

§2:151 Corporations

§2:152 Partnerships and Limited Partnerships

§2:153 Assumed Names

C. Experts

§2:160 Pre-Suit Use of Experts

§2:161 Assessing Liability and Damages

§2:162 How to Find an Expert

§2:163 Evaluating an Expert’s Usefulness

§2:164 When an Expert Is Required