You’ve received a call from your client regarding a new lawsuit that’s been filed against them. As trial lawyers, we are conditioned to focus on the nuts and bolts of evaluating a case based on analysis of the legal claims and defenses, factual development and procedural devices (e.g., to answer or move to dismiss).
In fact, most trial lawyers have a checklist of legal strategy considerations and deadlines to calendar. By checking off each of those list items, you’ve got your bases covered, right? Wrong.
What checklists and deadline calendaring won’t necessarily help you with is development and implementation of a case strategy that gives thoughtful consideration to the scope of the immediate case, cost considerations, and the potential impact of the dispute on bigger picture items for the client.
A crucial first step at the outset of the defense of any lawsuit is to avoid making assumptions. Ask questions. For example, don’t assume that the client has given due consideration to whether there may be insurance coverage applicable to the claim or that insurers have been put on notice. Learn early on about potential insurance coverage, limits and exclusions and of the possibility of a protracted insurance coverage fight. Likewise, even though the client is or may appear sophisticated, ask them directly whether they have implemented a litigation hold/non-destruction process as to all potentially relevant electronic or hard copy documents. As you interview client personnel about the factual background, be very direct in asking them before concluding if there is anything they have not shared with you (e.g., because they are embarrassed or simply sticking their head in the sand) to avoid surprises during the course of discovery.
