Presuit Activities

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 99-124

2-1

Chapter 2

PRESUIT ACTIVITIES

QUICK VIEW

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

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. Planning for litigating the case. Deciding what causes of action to allege, when

to file, and where to file. Communicating with the opponent and opponent’s counsel. Prefiling requirements:

notices, demands, exhaustion of administrative remedies. Dealing with insurance carriers, your client’s and the

opponent’s.

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.

• Exhaust available presuit measures for resolving the action before filing.

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

ties and causes of action, and tactical issues such as where and when to file the petition.

• Be sure that you have served all necessary presuit notices and demands and have exhausted available presuit

remedies.

Statutes and rules: Good faith in filing a lawsuit is required by TRCP §13. Notices to prospective governmental

defendants are governed by the Texas Tort Claims Act [CPRC §101.001 ff.]. Exhaustion of administrative rem-

edies requirements are governed by the Texas Administrative Procedure Act [Gov C §2001.001 ff].

Related topics: Taking the Case, Ch 1; Alternative Dispute Resolution, Ch 38; Parties, Ch 6; Personal

Jurisdiction, Ch 8; Subject Matter Jurisdiction, Ch 7.

TABLE OF CONTENTS

I. Investigation

A. Preliminary Considerations

§2:01 Purpose

§2:02 Good Faith Requirement

§2:03 Determine Whether Claim Is Winnable

§2:04 Determine Whether Investigation Is Cost-Effective

§2:05 Anticipated Cost of Investigation

(Rev. 10, 4/13)

TEXAS PRETRIAL PRACTICE2-2

B. Methods and Sources for Investigation

1. PRELIMINARY CONSIDERATIONS

§2:10 Use Only Necessary Methods

§2:11 Possible Methods

2. WITNESSES

§2:16 Interviewing Client

§2:17 Ask About Potential Parties

§2:18 Interviewing Third-Party Witnesses

§2:19 Obtain a Signed Statement

§2:20 Consider Taping Interviews

§2:21 Conduct Interviews Personally

§2:22 Opposing Party or Counsel

§2:23 Entitled Depositions Before Suit

3. DOCUMENTS

§2:28 Client’s Documents

§2:29 Other Documents

§2:30 Public Records

4. EXPERTS

§2:36 Presuit Use of Experts

§2:37 Assessing Liability and Damages

§2:38 How to Find an Expert

§2:39 Evaluating an Expert’s Usefulness

5. OTHER SOURCES OF INFORMATION

§2:44 Professional Investigators

§2:45 Freedom of Information Act

§2:46 Texas Public Information Act

§2:47 Internet

§2:48 Trade Organizations and Industry Standards

§2:49 Legal Trade Organizations

§2:50 Verify or Dispute Special Damages

§2:51 Employment Records

§2:52 Medical Records and Bills

§2:53 Photographs and Videotapes

§2:54 Property Appraisals

§2:55 Site Inspection

C. Protecting the Results of Your Investigation

§2:60 Preserve Your Evidence

§2:61 Protect Privileges

§2:62 Perpetuate Testimony

§2:63 Spoliation of Evidence

§2:64 Communications With Experts

II. Litigation Planning

A. Pre-Filing Resolution

1. NEGOTIATION

§2:70 Presuit Resolution Preferable

§2:71 Negotiations

(Rev. 1, 12/00)