Part One: The First 90 Days
Litigation is traumatic, chaotic and confusing for most clients, even for clients who are no strangers to litigation. One of the primary reasons clients react to litigation in this way is the failure of attorneys to properly manage the case and involve the client in the litigation process. Another reason is the high cost of litigation.
Case management can bring litigation and its costs under control and instill a greater measure of predictability into the process. Litigation can become more of a science than an art form by identifying and systematically applying sound management techniques in planning and staffing, and by utilizing technology. Through case management, attorneys and clients can: (1) determine and achieve outcome objectives; (2) establish and attain cost objectives; and (3) create a productive and satisfying working relationship which allows the client significant participation in the litigation process.
In order to achieve these goals, my law firm has adopted written Case Management Policies and Procedures. These are based on twenty years of experience as a "small firm litigator" of complex cases, often opposed by the largest law firms, in which I have never had the luxury of inefficiency.
Case Management Policies and Procedures
I. Attorney-Client Understanding: Determining Outcome Objectives and Cost Objectives
Outcome objectives are like the desired destination of a trip. While few people would embark on a trip without a destination, it is amazing how many clients and their attorneys embark on litigation without clearly defined outcome objectives.
Outcome objectives cannot be determined in a vacuum -- cost must be considered in setting outcome objectives. If cost objectives are not clearly delineated at the outset of a case, the attorney and client run the risk of proceeding with unrealistic expectations for the outcome and/or with a serious misunderstanding as to what the cost of the litigation will be.
Accordingly, case management must begin with a clear understanding between the attorney and the client as to both outcome objectives and cost objectives. At the outset of a matter, the attorney should confer in detail with the person or persons responsible for making both the client's legal and business decisions to ascertain the client's expectations for the outcome of the case. The attorney should inform the client whether the attorney believes it is possible to achieve the client's expectations at a cost acceptable to the client. The attorney and client should then agree upon the outcome objectives and cost objectives and put them in writing.
At the outset of the representation, the attorney and client should also agree upon the frequency with which the attorney will render formal status reports to the client and the format of those reports. If the client desires, the attorney should prepare a preliminary budget, setting forth the major activities anticipated during the course of the litigation with an estimate of the attorney and staff time required.
II. Insurance Coverage: An Essential but Frequently Overlooked Assessment
Although the existence of insurance and the terms of coverage are extremely important in establishing outcome objectives and cost objectives, it is surprising how frequently attorneys and clients failed to assess insurance coverages at the outset of a case. If a client has retained the attorney directly, the attorney, in conjunction with the client's risk manager or insurance agent, should determine whether the client maintains insurance coverage for any aspect of the matter, and if so, the attorney should assist the client in tendering the matter to the insurance carrier.
If an insurance company has retained the attorney on behalf of the client, the attorney should verify that the matter, in the estimation of the carrier, is covered under the terms of the applicable policy or policies and the extent of the coverages.
The insurance coverage assessment should be accomplished within 30 days of the retention of the attorney in the matter.
III. The Preliminary Case Assessment and Litigation Plan: A Roadmap
Like a well planned trip, litigation should start with a good roadmap. Although litigation plans should be flexible to accommodate changes in strategy necessitated by developments as the case proceeds, litigating without a plan can be highly inefficient and can lead to disappointing, if not disastrous results.
The planning process should begin at the earliest possible moment, preferably before a lawsuit is filed. It bears emphasis that strategic decisions made at the outset of a matter can have a significant impact on the outcome of a case. The Preliminary Case Assessment and Litigation Plan sets the course by which outcome objectives and cost objectives can be achieved.
Within the first 60 days of the retention of the attorney in the matter - sooner, of course, in emergency situations - the attorney should:
1. Interview the material fact witnesses (where appropriate, these interviews should be conducted by an investigator) and prepare a written preliminary assessment of the ways in which the witnesses might affect the outcome objectives and what needs to be done to identify other material witnesses and to preserve and/or develop testimony;
2. Marshall and review the client's documents and other available evidence relevant to the matter, and prepare a written preliminary assessment of the ways in which the documents and other evidence might affect the outcome objectives, and what needs to be done to preserve or develop documentary and other evidence;
3. Prepare a written overview of the material facts known to the client at the time;
4. Prepare a written overview of the law most likely to govern the case, in light of the facts then known;
5. Identify the areas in which expert witnesses might be required and possible expert witnesses; and
6. Deliver a preliminary litigation plan, with an assessment as to whether the outcome objectives and cost objectives can be achieved, and, if necessary, recommendations for revision of the outcome objectives and/or cost objectives.
IV. The Initial Settlement Attempt: Achieving Outcome Objectives and Cost Objectives Through Negotiation
It is the rare case in which a litigated outcome is preferable to a settlement. Unless the client is staunchly opposed to settlement, or there are sound business, personal, or strategic reasons why settlement is not desirable or should not be pursued at this juncture, or both the client and the attorney believe that all reasonable settlement avenues have already been exhausted, the client and attorney should jointly plan and carry out a good faith attempt to settle the matter at the earliest opportunity.
As soon as the Preliminary Case Assessment and Litigation Plan in completed, or even earlier if appropriate, the attorney should suggest ways in which a settlement proposal can be structured or a settlement attempt can be approached to enhance the likelihood of meeting outcome objectives and cost objectives through settlement.
V. Dispute Resolution: Achieving Outcome Objectives and Cost Objectives Through Alternatives to Litigation
In conjunction with the Preliminary Case Assessment and Litigation Plan, the attorney should consider and recommend alternatives to litigation for the resolution of the dispute, such as arbitration and mediation. Such alternatives sometimes but not always achieve outcome objectives at reduced cost. A full-blown alternative dispute resolution proceeding followed by litigation can increase costs significantly while decreasing the likelihood of achieving the outcome objectives. Accordingly, both the pros and cons of alternative dispute resolution must be carefully weighed before embarking on such a course.
VI. The Staffing and Work Flow Plan: Achieving Outcome Objectives and Cost Objectives Through Resource Allocation and Technology
Within 30 days after the completion of the Preliminary Case Assessment and Litigation Plan, a written Staffing and Work Flow Plan should be prepared by the attorney. This should identify the primarily responsible attorney and also describe the aspects of the case which might be delegated to other attorneys, paralegals and clerical staff during the course of the case, depending on the nature of the task and the experience or expertise required. The attorney should also make recommendations concerning the potential involvement of affiliated counsel in special areas indicated by the nature of the case. In addition, the Staffing and Work Flow Plan should set forth recommendations regarding the use of consulting experts as to financial, technical, or other aspects of the case, as well the use of litigation support services for court reporting, document management, text search and retrieval, demonstrative evidence, investigation, pre-trial jury research, etc.
The Staffing and Work Flow Plan should also consider opportunities for "partnering" between client and the attorney, involving the client's personnel as part of the litigation team to enhance the likelihood of achieving the outcome objectives and cost objectives.
As a corollary to the Staffing and Work Flow Plan, the attorney, in conjunction with the client, should identify the ways in which available technology will be used in the litigation process to help achieve the outcome objectives and cost objectives, including the possibilities for electronic link-ups between the attorney and client to facilitate attorney-client communication, "partnering" and teamwork.
The first 90 days is a critical time in any case. The failure of the attorney and client to use this initial time period wisely can severely impair chances of success. In many cases in which the foregoing policies and procedures are followed in the first 90 days, the likelihood of a successful outcome at a reasonable cost can be greatly enhanced.
Provided by Theodore M. Becker.