Before the Curtain Raises: Planning from Pre-Crisis Through Trial with the Correct Audience in Mind

Much litigation work occurs behind the scenes, outside of the courtroom setting. This session will provide an overview of the variety of pre-litigation strategies and early case processes to ensure preparation from pre-crisis to trial. The session will also discuss different handling strategies to play to each audience, whether the case is best suited for early resolution, dispositive motion practice, or trial.

Typical Potential Audiences:

• Client – Insured and/or Carrier Representative (including TPAs); Excess Carrier
• Co-Counsel (if applicable)
• Opposing Counsel
• Opposing Party
• Judge
• Finder(s) of Fact – Jury? Judge? Arbitrator (or Panel)?
• Miscellaneous – Mediator. Witnesses. Expert Witnesses. Media/News. Government (OSHA, EEOC, Building Department, Certification or Licensing Agency). Trade Groups. Court Reporters. Judicial Staff and Personnel.

Stages of Litigation:

Pre-Incident

• Client: Risk avoidance and risk mitigation–counsel your existing clients on known risks based on their industries, personnel, and regulations. For example:
• Employment law: Does your client have an updated handbook? Are your client’s job descriptions accurate? Do they have their employees properly classified? Are their workplaces safe and posted notices compliant with state and federal law?
• Hospitality/Premises: Does your client have accident avoidance procedures (slip/trip prevention)? Does your client conduct “sweeps” of its premises for hazards? Does your client have written procedures for documenting accidents and preserving evidence?
• Construction Law: Are your clients’ workers adequately trained and supervised? Are they aware of trade-specific hazards or pitfalls? Do they adhere to contract-specific terms and requirements?
• Work Comp: Are your clients’ workers adhering to written safety protocols? Do they know reporting procedures? Has OSHA compliance been an issue in the past?
• Preventative strategies (often industry-specific)

Demand letter and/or statutory pre-suit procedures

• Often, a demand letter/package is the first “official” notice of a potential claim and the first opportunity to evaluate a potential strategy for the various audiences.
  • Client:
    • Was the client already aware of the incident in question, and if so, have they already taken steps to preserve evidence?
    • If not, is the opportunity to preserve evidence still available?
    • If yes, and a subsequent remedial measure was instituted, was the pre-remediation evidence/condition documented and preserved?
  • Carrier:
    • Timely reporting of claims to the Carrier is critical. The earlier a carrier is on notice of a potential claim, the better opportunity for collaboration on strategy and the higher likelihood of an early resolution.
    • Does the carrier have enough information to make a coverage determination?
    • If not, is it within your scope to help investigate for coverage purposes?
    • Does your claims professional have reporting requirements at this stage? Can you assist in her or his investigation?
    • Bad faith considerations/time-limited demands/CRN notices and responses have strict deadlines and can trigger statutory waivers and attorneys’ fees entitlement.
  • Opposing counsel: Is this the first time you have litigated against this opposing counsel or firm? What information can you learn about them from their written communications? From their website? From asking around your firm or trusted colleagues?
• Some states have statutory pre-litigation processes for specific claims or demands:
  • Examples from Florida law (other states may have similar provisions for certain types of claims that require a pre-suit investigation/resolution process):
    • 627.7152: Assignment agreements.—(9)(a) An assignee must provide the named insured, the insurer, and the assignor, if not the named insured, with a written notice of intent to initiate litigation before filing suit under the policy. Such notice must be served at least 10 business days before filing suit, but not before the insurer has made a determination of coverage under s. 627.70131.
    • 627.4137: Demand for Insurance Information/Sworn Statement
    • 766.106(3)(a): Medical Malpractice – Presuit Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review.—A suit may not be filed for a period of 90 days after notice is delivered to any prospective defendant. During the 90-day period, the prospective defendant or the prospective defendant’s insurer or self-insurer shall conduct a review as provided in 766.203(3) to determine the liability of the prospective defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation, review, and evaluation of claims during the 90-day period.
    • 558.004: Construction Defect Presuit Demand and Opportunity to Cure: repair, offer to pay for repairs/settlement, or deny claim.

Pleadings/Early Motion Practice

• Complaint/Demand for Arbitration:
  • If you are representing a Plaintiff, you are writing your complaint/initial pleading for every conceivable audience, because that document will largely shape the direction and complexity of your case.
  • If you are representing a Defendant and have a viable motion to dismiss, consider whether the judge will be receptive to it. Consider whether it is worthwhile to apply early pressure on the Plaintiff.
  • Do you have counterclaims/crossclaims/third party claims?
  • Do you need to put any non-parties on notice?
  • Have you identified potential areas in need of expert witness opinions and can you engage those experts early?
• Client/Carrier: Early evaluation of potential exposure is useful to establish the possibility of resolving nuisance value claims with limited exposure but a potential for large defense costs. Particularly true in multiparty litigation, such as construction defect claims in which the insured is a smaller labor subcontractor or material supplier, but useful in all contexts.

Initial Discovery (Written, Site Investigation, Witness Interviews, Etc.)

• Opposing counsel:
  • Signaling your strategy may be unavoidable. However, the types of questions you ask, the documents you request, and the speed with which you move can all demonstrate to opposing counsel your skill, determination, and intent.
  • Responding to and objecting to discovery or dealing with your opponents’ objections is critical. Most, if not all, procedural rules or court rules require a good faith conference over objections before a motion to compel. Thinking about how you will tailor your objections and questions to be able to pivot during discovery if needed is a subtle but important skill.
  • How skillfully and professionally counsel make their contentions about opposing views during discovery tends to shape a lot of the ongoing discourse about the case as a whole. If counsel are cooperative and responsive, it might bode well for the possibility of resolving the case amicably. Conversely, if objecting devolves into bickering, it may bleed over to other areas of the case and future interactions.
• Judge:
  • Draft your discovery requests in a manner that limits the likelihood of drawing objections. If the requests are likely to draw objections, are you willing and able to narrow your requests and overcome those objections?
  • Similarly, think about your objections and whether they are worth lodging. Are you going to be willing to defend them at a hearing?
  • Judges will often ask why a discovery dispute could not be resolved. How did you treat opposing counsel and how can you avoid regretful behavior to maintain the high road?

Depositions/Secondary Discovery

• Client/Carrier:
  • What depositions do you wish to take? Are they necessary, advisable, and a good use of your client’s resources? Does your client want you to depose or not depose certain people? Why or why not?
  • Has your client ever been deposed before? Consider what type of witness they will be, how much preparation they will need, and whether they know what to expect from the process.
  • Reporting back from depositions timely is critical, because deposition testimony can significantly impact strategy. Whether it be the need to change course due to new/unexpected information, or testimony confirms the facts as you understood them to be, the testimony usually means a great deal for how your client perceives their case.
• Opposing Party/Counsel: Anticipate the tone of the deposition based on what you have learned through discovery. What kind of questioning style will you employ? Your preparation shows the opposition that you are serious about your advocacy. It also demonstrates to the opposition that you are a formidable opponent for trial.

Mediation

• Mediator: What are you trying to highlight, explain, or diminish in your written mediation statement? Will it be confidential or partially confidential? Are there facts you want to emphasize or deemphasize?
• Opposing Party/Opposing Counsel: Will you make an opening statement? What will you try to convey? Do you need to create a presentation/slide deck? Are there key pieces of evidence that you want to highlight? Is there favorable law to your position that you do not know if the other side has considered or that you think they are not taking seriously enough?
• Client/Carrier: Prepare your client to hear uncomfortable aspects of their case. Are there facts your client wants you to emphasize that perhaps you need to hold back? How will you explain that to your client? You must prepare your client to accept that a “good settlement is often one in which the plaintiff walks away thinking they got too little and the defendant thinks they gave away too much.”
  • Setting expectations for your carrier well in advance of mediation allows for significant time to have internal discussions and obtain approvals for settlement authority. Limiting the number of surprises through early and frequent reporting instills confidence in granting settlement authority. However, this may need to be a fluid process as carriers many times will increase authority on the fly to adjust for unforeseen facts or circumstances that may arise to best protect themselves and the insured.

Pretrial/Dispositive Motion Practice

• Judge; Opposing Party/Counsel:
  • Summary Judgment or Partial Summary Judgment – how likely are these motions to succeed? Can you use them strategically to get certain facts or law before the judge that may benefit you at trial?
  • Motions in Limine – What are the key motions you will need to file, and how will they help you win at trial? Are there certain motions with a low chance of success that will still help educate the judge on an issue or set up a future appeal?
  • Daubert Motions – Even if unsuccessful at getting an expert stricken, they can apply pressure for settlement purposes. Challenges to a potential expert’s qualification or opinions can be used to expose a weakness in an opponent’s case.
• Client/Carrier:
  • Dispositive Motions may provide leverage for mediation.
  • Motions in Limine can show the client how a judge might react to certain evidence and that can influence your client’s understanding of strategy.
  • Daubert Motions may demonstrate to your client the weaknesses in his or her case.

Trial Preparation and Trial

• Client/Carrier:
  • What to expect? For your client, this may be one of the most important days of their life or their business’s existence.
  • Lawyers cannot take lightly the responsibility to prepare our client for the emotionally taxing experience of a trial, particularly a long trial.
  • The Carrier’s pretrial report is often extensive and can be completed “as you go” through the case by needs to be made aware of both the best and worst outcome then plan for somewhere in the middle and if they are willing to proceed through trial without a last attempt to settle the claim on behalf of their insured. Many times the legal division will wish to be very involved in Trial preparation.
• Witnesses:
  • Which will be friendly? Neutral? Antagonistic?
  • Preparing witnesses for their testimony, calming nerves, examining material evidence
• Judge:
  • Do you have a sense of how the judge perceives your case based on how he or she has handled contested matters and ruled on motions?
  • Does the judge have a short patience for wordy objections, or place a particular emphasis on certain procedural and evidentiary rules?
  • Have you reviewed the Rules of Evidence, Rules of Procedure, and the Court’s posted Trial Procedures?
  • How much of the case has been narrowed and resolved at the pretrial conference or docket sounding and do additional motions need to be heard before the trial? How will the judge allocate time for them?
  • Will the judge be looking out for particular mistrial hazards because of your motion and pretrial strategy?
• Jury:
  • What will your jury pool demographics be, and how will those impact your voir dire strategy?
  • Voir dire and having to decide when to use your challenges.
  • Should you have a case-specific questionnaire?
  • What is your theme or overall message to the jury?
  • Is your client’s goal in this case to win? Or to limit the damage? How will that impact your themes and style to the jury?
  • How long is the trial? How do we keep the attention of the jury if the evidence is tedious or the witnesses are boring?
  • How many witnesses will testify and what order will you call them? Are they all necessary? Are they credible? Which ones will the jury like/believe or dislike/distrust?
  • Are your defenses or avoidances going to confuse the jury? How will you clarify any confusion? How do your defenses sound when stated out loud, and do you need a focus group or trial consultant?

Miscellaneous

• Media: Is yours the type of case that might attract media attention? If so, how will you deal with it? Are you having to keep that in mind for how your strategy will be perceived by the public?
• Expert Witnesses: Are you familiar with the experts in this case? What information will your experts need to know immediately in order to best assist? What experts in this case have you encountered before and can you use that past experience to your strategic advantage?
• Government (OSHA, EEOC, Building Department, Certification or Licensing Agency): Does your case have implications for your client beyond the discrete outcome of the litigation? Will certain evidence, admissions, or outcomes affect your client’s exposure or ability to defend against related claims by governmental entities?
• Trade Groups: Is your case one in which it could have positive or negative ramifications for a trade group you and/or your client is a part of? If so, how will you handle that?
• Court Reporters: Make your court reporter’s job easier by having exhibits pre-marked, speaking clearly at an even pace, and acknowledging their needs for breaks and lunch.
• Judicial Staff and Personnel: How you treat the judicial staff, including strict adherence to guidelines and operating procedures, can buy you a lot of goodwill throughout a case and in future matters.