Many plaintiff’s lawyers find themselves bogged down in motion practice and discovery disputes that can drag out a case for months or years. Apart from the delays, such sideshows detract from the central mission of trial lawyering: talking to witnesses, learning the case and preparing for trial. Sometimes these distractions can’t be helped, but just as frequently there is a better way. Plaintiff’s should “front end load” cases when possible.
Unless a case is straddling a statute of limitations deadline, plaintiffs have a unique opportunity to get a head start on the defense before suit is filed. This approach can lead to bigger verdicts or settlements. Such an approach takes time and the client must “buy in” to the process. Front end loading a plaintiff’s case requires taking the following steps.
Too often lawyers draw out the story from a client over the span of multiple meetings. Sometimes the entire story doesn’t come out until after the suit is filed. That is unacceptable. The client should commit to a written narrative as soon as possible after the initial consultation. If the client is too lazy, it will only get worse. A follow-up meeting to test the thoroughness of the narrative is probably a good idea. Early case review is also the time to flush out the names of witnesses and to obtain the client’s case documents. A client dragging his or her feet during this process is a warning sign.
Far too many lawyers wait until the case is in suit to begin talking to witnesses. The problem is that one doesn’t know if the witness will really back up what the client says. Often witnesses may be reluctant to testify or have a memory lapse. Considering the fact that plaintiff’s lawyers make a financial investment in cases, the delay in contacting witnesses makes no sense. Additionally, there is no good reason to delay contacting potential expert witnesses. If nothing else, plaintiff’s lawyers should at least begin talking to damages experts, since it’s a sure bet that damages interrogatories will be served soon after suit is filed. Better yet, liability experts can help lawyers draft better pleadings. This is all about being (and appearing) well prepared from the outset of contact with the opposition.
There is a time and place to become invested in a case, both financially and emotionally. Before that, however, the lawyer should conduct due diligence on his or her own client. Make the client show you their social-media pages. Make them disclose whether they have a criminal history or a record of filing suits or making claims. Find out about prior accidents before the defendant does. Do this before filing suit.
Do opposition research. Look into prior suits or claims. This is often where membership in plaintiff bar associations pays off. Networking and databases can unearth information not available elsewhere about a future defendant. Also consider pre-suit negotiations as a means of ascertaining potential defenses. Caveat: don’t do it too soon, i.e. when you are still learning your case and be careful not to over-reveal. Caveat notwithstanding, negotiations can be a valuable form of “informal discovery.”
Despite our training, lawyers are human and incapable of getting completely outside the “case bubble” that envelops any trial lawyer once the commitment has been made to take a case. I propose that cases be vetted by a focus group as early as possible. A scaled down exercise of showing a client’s mock questioning video session to a panel can help an attorney gain valuable insight into potential case themes and even a case value range. The valuation feedback can, in turn, be used as the basis for serving a proposal for settlement or offer a judgment (check your local rules) to capture attorney’s fees from the outset of the litigation.
Once litigation is filed, plaintiff’s lawyers can count on their opponents keeping them busy and distracted with motions, disputes and other busy work. Once a lawyer is in that trench, he or she will have little time to conduct the real business of trial lawyering. Why not do that work on the front end before there’s even an opposing attorney to deal with? It’s a built-in advantage plaintiff’s attorneys shouldn’t forfeit.