Case Evaluation and Strategy

Establishing the Attorney-Client Relationship

Once the lawyer decides to take the case, the terms of the attorney-client relationship should be formally established in a written agreement.

There are three reasons for this. First, any contractual relationship is best established in writing.

Second, the agreement will prove the existence of an attorney-client relationship for purposes of asserting the attorney-client privilege.

Third, the agreement will establish the work to be done, what will not be done, and the basis for  compensation, all of which must be understood to ensure a good working relationship between lawyer and client.

Types of Fees

Contingency fee agreement:  lawyer’s fee is based on a certain percentage of the recovery ultimately obtained by the client

Hourly rate:  any time spent on the client’s case is billed to the client, at a predetermined rate per hour

Types of Fees

Fixed flat fee:  lawyer receives a predetermined sum regardless of how much work is expended on the client’s behalf

Retainer fee:  amount the client pays to the lawyer at the beginning of the representation; fee is credited against fees and costs incurred by the client

Declining Representation

Whatever the reason, when a lawyer declines a potential case, it should be put in writing, usually in a letter to the prospective client.

Where a lawyer represents one party but cannot represent a related party because of a potential conflict of interest, the related party should be sent a letter in which the lawyer declines the offer of employment.

Also, if an attorney withdraws from representing a client, an appropriate letter should be sent.

Steps in Developing a Litigation Plan

Reevaluate the client’s objectives, priorities, and cost constraints

Define the client’s litigation objectives

Develop a “theory of the case”

Plan the pleadings

Plan the discovery

Plan the dispositive motions

Plan the settlement approach

Develop a litigation timetable

Theory of the Case

The lawyer’s position on, and approach to, all the undisputed and disputed evidence that will be presented at trial.

Planning Discovery

Planning discovery is essentially a seven-step process:

What facts do we need to establish a winning case on our side’s claims (or to defeat the opponent’s claims)?

What facts have we already obtained through informal fact investigation?

What ‘‘missing’’ facts do we still need to obtain through formal discovery?

Planning Discovery

The answers to the above questions should already be established on your litigation chart. You must consider four other questions:

What discovery methods are the most effective for obtaining the missing facts?

What facts and witnesses, which we already know through informal investigation, do we need to pin down by using formal discovery methods?

What restrictions does our litigation budget place on the discovery plan?

Finally, in what order should we execute our discovery plan?

Settlement

A resolution by the parties of their dispute without a trial

Sample Litigation Timetable

1/1       Complete litigation plan

by 2/1  File complaint

by 3/1  Interrogatories, production requests to defendant

by 5/1  Deposition notices to defendant witnesses

by 6/1  Depose defendant witnesses (same day if possible)

by 7/1   Motion for partial summary judgment on liability

by 9/1  Prepare pretrial memorandum

by 10/1 Pretrial conference

by 11/1 Initial trial date

Prefiling Requirements

Statutory notice requirements

Contract requirements

Mediation, arbitration, and review requirements

Administrative procedure requirements

Appointment of legal guardian

Discovery before suit

Demand letters