Presuit Activities

• Author: Robert F. Kane/Donald G. Rez
• Pages: 157-254

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.

• Any prefiling of an action has been timely completed.

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

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

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

presuit remedies.

Statutes and Rules: CC §§1354, 1375; CCP §§128.7, 364-365; Gov C §800 ff; Prob C §§9000 ff; RPC 3-200.

Related Topics: Taking the Case, Ch 1; Statute of Limitations, Ch 3; Subject Matter Jurisdiction, Ch 6; Personal

Jurisdiction, Ch 7; Venue and Forum Non Conveniens, Ch 8; Parties, Ch. 12.

Forms in Digital Access: See digital access for the following forms:

• Form 2:10 Authorization to Release Employment Records.

• Form 2:20 Request for Employment Records.

• Form 2:30 Authorization to Release Medical Records.

• Form 2:40 Request for Medical Records.

California Pretrial Practice & Forms 2-2

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

B. METHODS AND SOURCES FOR INVESTIGATION

1. Preliminary Considerations

§2:10 Use Only Necessary Methods

§2:11 Possible Methods

2. Witnesses

§2:20 Interviewing Client

§2:21 Ask About Potential Parties

§2:22 Interviewing Third-Party Witnesses

§2:23 Whether to Conduct Interviews Personally

§2:24 Obtain a Signed Statement

§2:25 Consider Taping Interviews

§2:26 Opposing Party or Counsel

§2:27 Obtaining Medical Information

§2:28 Interviewing Opponent’s Employees

3. Documents

§2:40 Client’s Documents

§2:41 Other Documents

§2:42 Public Records

4. Experts

§2:50 Presuit Use of Experts

§2:51 Assessing Liability and Damages

§2:52 How to Find an Expert

§2:53 Evaluating an Expert’s Usefulness

5. Other Sources of Information

§2:60 Professional Investigators

§2:61 Public Records

§2:62 Freedom of Information Act

§2:63 California Public Information Act

§2:64 Internet

§2:65 Trade Organizations and Industry Standards

§2:66 Legal Trade Organizations

§2:67 Verify or Dispute Special Damages

§2:68 Employment Records

§2:69 Medical Records and Bills

§2:70 When Medical Records Must Be Made Available

§2:71 Photographs and Videotapes

§2:72 Property Appraisals

§2:73 Site Inspection

§2:74 Research of the Parties’ Prior Litigation

§2:75 Business Records

§2:76 Police Reports

C. PROTECTING THE RESULTS OF YOUR INVESTIGATION

§2:80 Preserve Your Evidence

§2:81 Protect Privileges

2-3 Presuit Activities

§2:81.1 Attorney-Client Privilege

§2:82 Work Product Privilege

§2:83 Perpetuate Testimony

§2:84 Spoliation of Evidence

§2:85 Communications With Experts

II. LITIGATION PLANNING

A. PRE-FILING RESOLUTION

1. Negotiation

§2:90 Presuit Resolution Preferable

§2:91 Contact With Represented Opponent Prohibited

§2:92 Unrepresented Parties

§2:93 Oral Negotiations

§2:94 Written Negotiations

§2:95 Don’t Be Afraid to Exchange Information

§2:96 Negotiations

§2:97 Demand Letters

§2:98 Litigation Privilege

2. Threatening Action

§2:110 Threat of Criminal Prosecution

§2:111 Threat of Civil Litigation

§2:112 Prohibited Consumer Debt Collection Methods

3. Insurance Coverage Issues

§2:120 Communicate With Insurance Carriers

§2:121 Contact Your Client’s Insurer

§2:121.1 Interpretation of Policy

§2:122 Notice to Insurer

§2:123 Obligation of Good Faith and Fair Dealing

§2:124 Liability Insurer’s Duty to Defend

§2:125 Defendant’s Insurer

§2:126 Liability Insurer’s Obligation to Settle

§2:127 Layers of Coverage

4. Alternative Dispute Resolution

§2:140 Arbitration Under Contract Terms

§2:141 Enforceability of Arbitration Provision

§2:141.1 FAA Preemption

§2:142 Voluntary Arbitration

§2:143 Pros and Cons of Arbitration

§2:144 Mediation

§2:145 Authority of Attorney to Bind Client

§2:146 Reference

B. PLAINTIFF’S CONSIDERATIONS

1. Legal Research

§2:150 Start a Legal Memo on the Case

§2:151 Issues to Research

2. Parties

§2:160 Identifying the Parties

§2:161 Include All Plaintiffs

§2:162 Permissive Joinder of All Defendants

§2:163 Defendants’ Financial Condition

§2:164 Tactical Considerations

3. Causes of Action

§2:170 Assert All Potential Claims

§2:171 Insurance Coverage