V. Initial Considerations for Defendant's Counsel

LibrarySword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

V. INITIAL CONSIDERATIONS FOR DEFENDANT'S COUNSEL

A. Insurance

One issue defense counsel should explore at the very outset of litigation is the possibility of any insurance coverage. Under Federal Rule of Civil Procedure 26(a)(1)(A)(iv), defendants are required to provide, as part of their initial, mandatory disclosures, "any insurance agreement under which an insurance business may be liable" for all or part of the judgment. But since insurance agreements often require the insured to notify the carrier of a potential claim within a specified period of time or risk waiving coverage, it makes sense to start gathering any policies that could potentially be triggered and provide notice to the carriers well before discovery begins.

B. Removal

One of the first choices defense counsel must usually make is whether to remove to federal court, if the case is filed in state court. Defendants have the ultimate choice of forum in § 1983 cases, if they are aware of it and know how to exercise it. This choice should be governed by an analysis similar to that suggested previously for plaintiff's counsel's decision about where to file. Some governmental defendants still feel more at home at the state courthouse; others may be more attracted to favorable procedural factors in the federal...

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