Presuit Activities

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 99-132

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 of Chapter: 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 presuit notices and demands.

• 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 appropri-

ate 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 CPLR 8303-a; 22 NYCRR §130-1.1. Notices

to prospective governmental defendants are governed by the New York Court of Claims Act, §10. Requirements

for exhaustion of administrative remedies are set forth in the State Administrative Procedures Act, §101.

Related Topics: Taking the Case, Ch 1; Subject Matter Jurisdiction, Ch 6; Personal Jurisdiction, Ch 7; Parties,

Ch 14; Alternative Dispute Resolution, Ch 40.

Forms: See digital access for the following forms:

• Form 2:10, Request for Medical Records

• Form 2:20, Authorization for Release of Medical Records

• Form 2:30, Demand Letter

TABLE OF CONTENTS

I. Investigation

A. Preliminary Considerations

§2:01 Introduction

§2:02 Why Conduct a Presuit Investigation?

§2:03 Elements of an Effective Investigation

New York Civil PraCtiCe Before trial 2-2

B. Reasons to Conduct a Presuit Investigation

1. LEGAL REQUIREMENTS

a. In General

§2:10 Professional and Ethical Considerations

§2:11 Frivolous Claim or Conduct

§2:12 Frivolous Litigation May Warrant Sanctions

§2:13 Sources of Law: CPLR 8303-a; 22 NYCRR §130-1.1

§2:14 $10,000 Limit on Recovery

§2:15 Tactical Considerations: Investigate

b. CPLR 8303-a

§2:20 Overview

§2:21 Limited Reach

§2:22 Definition of “Frivolous”

§2:23 Bad Faith a Prerequisite

§2:24 Discontinuing the Action May Show Lack of Bad Faith

§2:25 Court’s Discretion re: Costs and Fees

c. 22 NYCRR §130-1.1

§2:30 Overview

§2:31 Applies to all Proceedings in a Civil Action

§2:32 Definition of “Frivolous Conduct”

§2:33 Finding of Bad Faith Not Required

§2:34 Factors Used to Identify Frivolous Conduct

2. PRACTICAL PURPOSES

§2:40 Develop Theory of the Case

§2:41 Ascertain Viability of Potential Claims

§2:42 Test Client’s Version of What Happened

§2:43 Learn About Your Adversary

§2:44 Obtain Material for Presuit Demands and Settlement Negotiations

§2:45 Develop Building Blocks for Formal Discovery

§2:46 Achieve Cost Savings

§2:47 Avoid Interference From Opposing Counsel

§2:48 Save Time

C. Sources for Investigation

1. CLIENT

§2:60 Interview Your Client

§2:61 Client’s Business

§2:62 Review Your Client’s Documents

§2:63 Ask Your Client About Potential Parties

2. OPPOSING PARTIES

§2:70 Get Views of Potential Opponents

§2:71 Learn About Potential Opponent

§2:72 Interview Opponent’s Current Employees

§2:73 Contacts With Current Employees

§2:74 Interviewing Former Employees

2-3 Presuit aCtivities

3. THIRD-PARTY WITNESSES

§2:80 Interview Third-Party Witnesses

§2:81 Conduct Interviews Personally

§2:82 Consider Taping Interviews

§2:83 Obtain Third-Party Documents

4. EXPERTS

§2:90 Presuit Use of Experts

§2:91 Types of Experts

§2:92 How to Find an Expert

§2:93 Evaluating an Expert’s Usefulness

5. OTHER SOURCES

§2:100 Professional Investigators

§2:101 Public Records

§2:102 Freedom of Information Statutes

§2:103 Corporate Filings

§2:104 Internet

§2:105 Trade Organizations and Industry Standards

§2:106 Legal Trade Organizations

§2:107 Verify or Dispute Special Damages

§2:108 Employment Records

§2:109 Medical Records and Bills

§2:110 Photographs and Videotapes

§2:111 Property Appraisals

§2:112 Site Inspection

§2:113 Research the Parties’ Prior Litigation

II. Presuit Communications, Demands, and Notices

A. Communications with Parties

§2:120 Contact with Represented Opponent Prohibited

§2:121 Communicating with Unrepresented Party Also Prohibited

B. Demand Letters

§2:130 Chances of Success

§2:131 Elements of Demand Letter

§2:132 Demand Letter May Be Required

C. Threatening Action

§2:140 Threat of Criminal Prosecution

§2:141 Threat of Civil Litigation

D. Notice Requirements

§2:150 Notice of Tort Claim Against Public Corporation

§2:151 Prior Notice of Dangerous Condition

§2:152 Malpractice Actions

E. Communicating with Insurers

§2:160 Availability of Coverage

§2:161 Notice of Obligations