Now that you have determined you have a good case and have built a solid foundation through extensive pre-suit investigation, you are ready to file your case. The pretrial stage is where you really add or lose value with respect to your case. For plaintiffs, to maximize the value of your case, make good use of written discovery and thoroughly explore all relevant testimony through the use of depositions. If the case warrants it, employ focus groups to help you identify weak aspects of your case. In cases involving serious disability, retain a life care planner. Start thinking about the evidence you have and the evidence you still need so that you may give an effective mediation presentation.

1.     Discovery

There is only so much evidence you can put together yourself, or with the assistance of your client and/or experts. At some point, you’re going to have to find out what evidence your opponent has in his or her possession. Effective use of written discovery and depositions will help you further buttress your case, as well as to clarify any weak points. “Smoking guns” usually do not exist or are not found in litigation. However, when they are, they’re usually found in the possession of your opponent. The more effective your use of discovery, the more likely you are to find your smoking gun.

2.     Use of Written Discovery to Bolster Case

Many attorneys simply serve form interrogatories and requests for production in every case. Do not fall into this trap. It is fine to develop a template. For example, you will always want to ask for insurance information if you represent a plaintiff. Make such a request part of your template. However, be sure to think about what you really want and need to develop your case. Tailor your interrogatories and requests accordingly. If you represent the plaintiff, serve the interrogatories and requests with the complaint. It is important to exert pressure at the earliest stage. Further, the sooner you send your discovery, the sooner you will have the information. The sooner you have the information, the sooner you may want to proceed with depositions, and so on and so forth.

Do not forget to make use of requests for admissions. Use such requests to establish basic aspects of the case. If you are suing an individual and his employer under the theory of respondeat superior, issue a request asking your opponent to admit the existence of an employment relationship. If you are uncertain as to whether your opponent will stipulate to the authenticity of documents, issue a request asking your opponent to admit to the genuineness of the respective documents. Shoring up basic aspects of your case early on will lead to increased preparedness as mediation or trial approaches. Increased preparedness leads to increased settlements and verdicts.

3.     Depositions

There is a widely varied approach among lawyers when it comes to taking depositions. It is likely that every civil litigation attorney will acknowledge that certain depositions are important to the development of a case. However, which ones are important and why is up for debate. It is the opinion of this presenter that thorough depositions of all individuals who have relevant knowledge with respect to your claims should be taken. Clearly, that includes the parties to the litigation, as well as any witnesses to the acts or omissions at issue. It also includes the experts retained by the parties. In medical (and other) cases, there are some attorneys who feel it is unnecessary to depose some or all of the experts designated by their opponent. The rationale is that the testimony will likely be similar to that of the defendant doctor. Therefore, they can craft a cross examination for the expert similar to that of their cross examination for the defendant doctor. While such a decision saves time and more than a little bit of money, this approach can often miss nuggets of information useful to your case.  On the other hand, deposing an expert also risks preparing that expert for cross-examination at trial.  Further, if there are multiple experts, conducting such depositions provides opposing counsel with an audition as to how their experts may fare at trial, enabling opposing counsel to select only the best one(s).  A middle of the road approach (my preferred method) would involve interrogating experts about their background, criminal history, prior lawsuits, the bases for their opinions, etc., while foregoing in depth examination concerning the specific facts of the case.  That way, you may retain the element of surprise on your side at trial when it comes time to cross examine the expert on the facts of the case and how they fit in (or not) to the expert’s opinions.  It also shortens the deposition which saves costs.

Preparation is key for any deposition you take. Never go into a deposition blind. Understand who you are deposing and why.  If you are deposing an expert that has previously testified, there are services which provide prior transcripts.  It is crucial for attorneys to mine these prior transcripts for important nuggets of information and fertile grounds for cross examination.  Is the deponent necessary to establish an element of your legal claim? Make sure you identify and go through all necessary exhibits. I recommend creating a thorough outline, even for seasoned attorneys. You are not to rely on the outline during your examination, as it is crucial to listen to your deponent so as to follow up important testimony. Further, over-reliance on an outline will detract from the conversational flow of the deposition which may make it more difficult to gain favorable testimony. However, it is helpful to have the outline with you to consult during breaks in testimony to make sure you’ve covered all the relevant area.

4.     Focus Groups

Conducting focus groups can be critical to preparation for both trial and settlement. The decision whether to conduct a focus group generally merits more consideration the larger and more complex the case. If conducted very early in the case, focus groups will help identify issues during discovery that will better dispose the case to settlement and trial. Information obtained in focusing the case prior to mediation will gain counsel valuable information for the settlement/mediation process. Further, counsel can approach mediation with a great deal more confidence in the ability to evaluate the case both as to liability and damages. In this era of rampant “tort reform” and attacks on the civil justice system, counsel can learn a great deal about how the jurors of a particular area are likely to perceive the case. Armed with this knowledge, plaintiff can approach settlement confidently and knowledgeably. If the case does not settle, counsel will be more than a leg up on their opposition when the trial begins if focus groups have been used to identify problem areas with the case.

5.     Life Care Plans

Life care plans have become an important tool for use in maximizing settlements and verdicts in the personal injury context. In this day and time, catastrophic cases that involve an injured party with a serious disability and future medical needs require the services of a qualified life care planner. The life care planner will be able to break down the care and modalities required through plaintiff’s lifetime. In the case of a child or a reasonably young adult, the life care plan will be a critical item of evidence and will serve as a critical anchor for other damages. The life care plan will be reviewed by a qualified economist who will reduce it to present value so that this element of damages can be appropriately considered by the jury.

The life care plan may be strenuously attacked by the defense. They may employ a separate life care planner, another economist and may even try to call in an annuitist to testify about the cost of a settlement to pay for the life care plan. The annuitist may be able to obtain a “age rating” for the plaintiff which will reduce the cost of the life care plan. This sort of evidence is an excellent means of providing a base for plaintiff’s damages and should be developed thoroughly by plaintiff’s counsel and even welcomed.

Once you have completed your due diligence through discovery, and once you have developed the damages portion of your case, you should just about be ready to engage in settlement discussions.  My next blog post will discuss the settlement process.

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