In Good Form
Keeping the Pressure On in Litigation Cases.
March/April 2007 issue
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.
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.
Checklist (click to download) 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
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
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
(click to download).
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
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
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.
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 (click to download).
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.
Damages Disclosure (click to download) 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
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.
Physical Examination (click to download) contains these protections:
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.
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
payment of expenses for the plaintiff with a time deadline for the
defendant to make that payment.
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
deadlines and sets protective times to avoid the examination being
done two days before the close of court-ordered discovery.
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.