In Good Form

Keeping the Pressure On in Litigation Cases.

By Leonard Bucklin

March/April 2007 Table of Contents

Editor’s note: In Good Form initiates a new regular feature that delivers practice-tested forms and advice from veteran attorneys. Links to the documents described and boldfaced in the article are available by clicking on the form’s name in the article or by visiting the "Forms" section of our Web site.

Companion forms for this article include:

• Litigation Checklist

• Checklist of Plaintiff’s Bodily Injuries

• Request for Admission to Defendant

• Request for Damages Disclosure

• Stipulation for Physical Examination

Today’s legal staff has to keep 30 or more cases actively in process at all times. And each of those dozens of cases can become a labyrinthine nightmare of pretrial discovery and preparation.

As a litigation paralegal, you need to know not only the best way to handle all the paperwork, but also the strategies that can help your lawyer maximize his or her impact on the adversary. By sharing the trial-tested strategies and forms in this article with your attorney-employer, you will keep your firm’s cases moving forward and increase your productivity, making yourself an invaluable part of the team.

Use a Checklist

The only way to keep your lawyer’s cases moving ahead without dropped opportunities, missed deadlines, and lack of applicable facts and law is to have a checklist-style Standard Operating Procedure, or SOP. Of course, you must not only have an SOP. You and the other members of the litigation team must use it and check off each item as it is completed.

The form Litigation Checklist is an affirmative model that organizes the case and moves it along in a timely manner. It gives all concerned a handy place to look for dates, what needs to be done and when. It’s no longer necessary to page through a pleadings and motions file to find a court-ordered date for, say, the last day to serve discovery. No longer is there any guessing whether the interrogatories have been served, or which witnesses need subpoenas. You and the rest of the team can look at the checklist and quickly find the basic past and future dates and events in the life of the case.

Obtain the Client’s Help From the Start

Your client frequently has information you need for the trial notebook. Instead of taking the time needed to ask the client a series of questions, give the client instructions to complete a form before the interview. For example, hand prospective personal injury clients the Checklist of Plaintiff’s Bodily Injuries. Place the completed checklist in your notebook.

Before clients have their deposition taken, send them the same checklist to fill out again and bring to the office for pre-deposition work up. Tell them you want a new form completed because you want to see what they can remember now. Ask them to seriously consider all the items the other side might ask about, and to think about and remember everything about the injury. It gives the client a jump-start on getting ready to testify effectively. Your clients will have had the benefit of thinking about their injuries and what they want to tell the other side about those injuries.

There are four important attributes of the Checklist of Plaintiff’s Bodily Injuries. Use these attributes as a guide in developing forms to give your clients to help build an effective trial notebook.

• Keep It Short. The checklist is a compact one-sheet form, and the other forms that you give your clients should be short as well. I am not talking about the initial multipage form that you might use to gather all of the information from your client. I am talking about the specific pages that you want for your trial notebook. Each separate form should be one sheet. Your trial notebook is not a file folder. It’s a place where you have concise information.

• Use a Check Off System. The forms you give your clients to fill out should have a “check-the-box” type of listing or some other format that reminds clients to think about the specific items you want to know about. For example, within the checklist there is another checklist of body areas and problems from personal injuries. You must remind clients specifically what it is you want them to think about.

• Leave Space for Writing. The checklist has a short space for a narrative, something your forms must always contain. The narrative helps avoid omissions and allows clients to express items they think are important. Leave only a small space for writing since this is a document for your trial notebook.

• Ask One Critical Question. You’ll notice that the checklist asks whether there is a medical history of the specific problem or difficulty with the particular part of the body before the accident. Avoid being blindsided by a devastating cross-examination. Think about the most effective area of adverse questioning and then ask your client on the form whether that danger exists.

Keep the Other Side Reacting

In most litigation, you have limited time to spend on a case. The pressures of other cases often prevent you from doing everything that needs to be done on the case you want to move forward. The other side has the same problem. Therefore, if you can force opposing counsel to spend his or her time in ways that don’t attack you, you will accomplish a great deal. If you are the first to move, the other side has to react. While the other side is reacting, you can prepare for your next move.

I am not talking only about keeping the other side in a reactive mode during discovery, which is the most common method of keeping the other side off balance. I am talking about using this method during the entire course of the litigation. If you can force the other side to use its available limited time for the case in reacting to you, they will not be moving their own side of the case forward. The following strategies can help you keep your opponent off balance.

Plaintiff: Don’t Tolerate Nonresponsive Answers. When paragraphs in the answer don’t seem to apply to the case at hand, don’t ignore them. The defense might know something that you don’t. Find out about these items, particularly if the statute of limitations has been asserted and time is running out. In addition, by attacking the answer in the opening weeks of the case, you put the defense attorney to work responding instead of moving the defense discovery forward.

A good way to attack a nonresponsive answer paragraph is to fire off a request for admission that states the opposite, demanding that the defendant admit or deny it. Defense counsel then might have to admit a present lack of information to support the defense, which could lead to the possibility of sanctions under the Federal Rules of Civil Procedure Rule 11 — a satisfying byproduct of your countermove. This tactic also can help to make the defense more cooperative during discovery, since you could have the leverage of an unresolved Rule 11 violation by the defense.

Assuming that the answer raises the unwarranted defense of lack of proper service of process, try sending a request such as the Request for Admission to Defendant.

Defendant: Use interrogatories or requests aggressively. Most defense attorneys never have grasped the power of responding to a complaint with both an answer and a set of interrogatories. This simple tactic impresses the plaintiff’s attorney, your defendant client and your client’s insurer with your efficiency and dedication to the cause.

It’s important to make that impression. Your defendant clients will listen to you best if they think your team is aggressively defending. The insurer rarely sees defense attorneys who immediately take the initiative; you will stand out from the pack when the next defense case comes up for assignment. Most importantly, this simple tactic requires the plaintiff’s attorney to invest valuable time in responding to you rather than attacking you. Whichever side takes the initiative in litigation and puts the other side’s time assets into a responsive mode is the side that initially controls the timing and course of discovery.

If your jurisdiction is one that doesn’t require an initial exchange of information without formal discovery, your answer should always be accompanied by your initial set of interrogatories. But what if you are in federal court or a state jurisdiction that requires an initial exchange of information between the parties before the defendant can serve discovery interrogatories? In such a jurisdiction, you can’t serve a set of interrogatories with your answer. How do you still gain the initiative and power of putting the plaintiff’s legal staff into responsive mode? The answer: You can send letters that have the same effect as discovery, thus switching a plaintiff’s legal staff (and their available time) from attack mode to react mode.

For example, assume you have a bodily injury defense. Send a letter asking for the plaintiff’s signed authorization to inspect medical records plus a complete copy of all the plaintiff’s medical records in the possession of plaintiff or plaintiff’s counsel, in addition to the sort of computations that take plaintiff’s staff time to prepare. Be nice but insist that the rules of procedure for initial disclosure require an initial disclosure of all documents that the disclosing party can use to support its claims. The rules also require a meaningful, complete-to-date disclosure of a computation of damages, with all records on which the computation has been based and all documents that can be used to support damages to date.

Use the Request for Damages Disclosure to gain that initiative in an aggressive manner. It’s difficult for the plaintiff’s attorney not to reply and thus go on the defensive, because if the plaintiff fails to disclose an item you requested, it later can be classified as a deliberate failure to disclose.

Remember to send a copy of the letter to your defendant client and insurer, along with your answer to the complaint.

Use Your Bargaining Power

In personal injury litigation, the defendant will usually ask for an independent medical examination of the plaintiff’s client. As the plaintiff’s team, if you say yes, then you are committed. On the other hand, the defense team isn’t committed to anything. Therefore, even though no court order is involved, you need the protection of many of the items a court would include in its order. At this point, you are also in a good bargaining position to get a little more for the client. The defendant usually is willing to pay a little extra to avoid the time expenditure, delay of the case and the money involved in getting a court order. Put your “standard conditions” into a stipulation form and send it to the defense attorney to sign.

FRCP Rule 29 provides that the parties can modify procedures governing, or limitations placed on, discovery by “written stipulation.” States have similar rules allowing you to modify discovery procedures. So when the defendant’s side asks for the IME, use your bargaining power to gain something for allowing the other side to bypass a motion to the court.

The Stipulation for Physical Examination contains these protections:

• Identifies the examination by the defendant’s chosen doctors as not being an “independent medical examination.” When at trial, if the defense doctor is asked, “Did you do an independent medical examination?,” you have a basis for cross-examining the doctor on that point. You show the doctor the form and have a good time examining the doctor on his or her use of the term “independent medical examination” when he or she clearly knew it was not so and was under the control of the defendant in the scope of examination and in the reports.

• Specifies that this stipulated examination is in lieu of a court-ordered examination. Otherwise, what you encounter is a second exam by the same doctor, only this one will be ordered by the court on the defense application for the exam allowed by the FRCP, when trial nears.

• Arranges for payment of expenses for the plaintiff with a time deadline for the defendant to make that payment.

• Specifies exactly what you are going to get in return for allowing the exam without a motion and court order. FRCP Rule 35 only allows you to get the “report.” You want more than the report you get under the rule. You want everything the examining doctor looked at. Obtain it for free by asking for it early and you might not have to take the deposition of the adverse doctor to be prepared to cross-examine him or her.

• Sets time deadlines and sets protective times to avoid the examination being done two days before the close of court-ordered discovery.

Remember, in litigation the race favors the swift and the goal is to keep your firm’s cases moving forward at all times. If your legal team is always the first to move, the other side is kept in a reactive mode, not a proactive mode, allowing you to keep all of your firm’s cases organized, on track and one step ahead of the game.

Leonard Bucklin has been elected a Fellow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S., and is a member of the Million-Dollar Advocate’s Forum. He is the author of “Building Trial Notebooks” (www.jamespublishing.com or 800-440-4780), from which this article is excerpted

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