Chapter 3 - Case Evaluation and Strategy - Concepts Flashcards
3 Reasons the terms of a client-attorney relationship should be established in a written agreement
- Any contractual agreement is best established in writing 2. Proves existence of relationship for purposes of establishing attorney-client privilege 3. Establishes work to be done, not be done, and the basis for compensation
Disputes between lawyers and clients are common, but they can largely be avoided by making sure the agreement is (1), (2) and (3).
- drafted in clear and simple English 2. covers all likely issues 3. specifies what is not covered
7 basic subjects the agreement should cover
- Work covered or not covered 2. Lawyer’s fee 3. Retainers, 4. Costs ( 5. Billings (when/how often) 6. Authorization to File Suit (or defend it) 7. Conflicts of Interest
3 examples of work that may not be covered in agreement and should be specified
- appeal 2. worker’s comp claim 3. insurance claim
The (1) of the lawyer’s fee, the (2), and (3) must be spelled out in the agreement. The fee must be reasonable in light of the work done, difficulty, time involved and (4).
- amount 2. way it will be determines 3. when it must be paid 4. customary range of fees for similar work in that locality
Lawyers can charge by three basic methods: (1), (2) and (3). A (4), credited against an hourly rate, is sometimes asked for up front.
- hourly rate (corporate, commercial, insurance) 2. fixed flat fee (criminal defense, family law) 3. contingency (personal injury) 4. retainer fee
If the fee paid to a lawyer will be (1), this must be disclosed in the agreement. Some fees are subject to regulation by (2). Sometimes an (3) is employed to ensure the client pays fees, especially in contingent fee situations.
- shared with another lawyer outside the firm 2. statutes 3. attorney’s lien
The agreement may insist on a (1) to ensure payment of funds; this money is placed in a (2) separate from the lawyer’s funds and withdrawn from to pay for fees and costs. Client accounts may be merged into one, but they must be tracked with separate, detailed (3). Some states have adopted the (4), which requires holding client funds in interest-bearing accounts.
- retainer 2. trust account 3. ledgers 4. Interest on Lawyer’s Trust Accounts (IOLTA)
It is a good idea in the agreement to distinguish between (1) and (2)–out of pocket expenses for things like court reporter fees and expert witnesses. These setups can be especially tricky for (3), with which some lawyers will only likely get paid if the case is won, and some only accept the case if the costs can be paid up front.
- fees due the lawyer for professional representation 2. costs 3. contingency cases
Although you may draft the letter authorizing the lawyer to file (or defend) suit, (1).
- the lawyer must sign it
It may be necessary for a lawyer to (1) from a case if it represents a (2); this possibility must be covered in the agreement.
- withdraw 2. potential conflict of interest
5 steps to take after the agreement letter has been sent
- Send a notice of attorney lien (if applicable) to opposing party’s lawyer and insurance carriers 2. Have client sign authorization forms releasing records (check statutes or call agencies to ask what is required) 3. Instruct client on what he should and should not do 4. Inform client of blueprint for proceedings (sometimes helpful to have a brochure/letter explaining this) 5. Keep in touch with the client
4 things to advise the client to do/not do after agreement is made
- Not talk to anyone about the matter (except in discovery) 2. Not answer questions or sign statements, but tell anyone confronting him that he is represented by a lawyer 3. Notify your firm of any attempts by others to contact him 4. Save/collect all paperwork and deliver to lawyer
5 things you should tell the client with regard to the “blueprint” of proceedings
- What needs to be done before suit is filed 2. What happens during each stage and what his role is in them 3. How long each stage will take 4. That most cases are settled before trial 5. Risks and costs of a lawsuit
4 examples of things to send the client to keep him informed of the proceedings
- pleadings 2. discovery 3. motions 4. copies of correspondence
When a lawyer (1) or (2), it should be put in writing. Pay attention to (3), and warn the client to find a new lawyer. Make sure to (4) and (5).
- declines 2. withdraws from 3. statutes of limitations 4. have the lawyer sign it 5. send it by registered mail with return receipt by addressee only
A litigation plan consists of (1) and (2).
- defining the client’s objectives 2. developing a strategy to achieve those objectives
8 steps of a litigation plan
- Reevaluate the client’s objectives, priorities, and cost restraints (has anything changed with regard to what you know, what client wants?) 2. Define the client’s litigation objectives (may affect game plan. Trial or settlement?) 3. Develop a “theory of the case” 4. Plan the pleadings 5. Plan the discovery 6. Plan the dispositive motions 7. Plant the settlement approach 8. Develop a litigation timetable
Pleadings are the vehicle by which the (1) is brought to court. Sticking with this helps you from violating FRCP 11 by raising a number of (2) in the pleadings with no (3) to back them up.
- theory of the case 2. allegations 3. facts
Pleadings assert (1), (2) and (3). They should not take an (4), which serves little purpose and generally increases the client’s costs unnecessarily–stick to what theories the lawyer wants to (5).
- claims 2. relief 3. defenses 4. all-inclusive approach 5. advance at trial
The pleading stage is also the time to (1) and consider legal issues like (2), (3), and (4).
- research 2. choice of parties 3. subject matter jurisdiction 4. venue
3 questions for planning discovery that should already be answered on your litigation chart
- What facts are needed to establish a winning case on our claims (or defeat the opponent’s claims?) 2. What facts have we already obtained through informal investigation? 3. What “missing” facts need to be obtained in formal?
4 questions to think about as you plan discovery
- What discovery methods are most effective to obtain missing facts? 2. What informal facts/witnesses need to be pinned down by formal? 3. What restrictions does our litigation budget place on discovery? 4. In what order should we execute our discovery plan?
Dispositive motions are motions heard by the court at (1) of litigation before trial and have the effect of (2) One example is (3)–motion to obtain judgment without the necessity of a trial. Be sure to coordinate (4) with either motions you plan to file or motions you expect the other side to file.
- any stage 2. terminating the lawsuit without a trial 3. summary judgment 4. planned discovery
The settlement approach will depend on the (1). Attempting to settle earlier in the process can (2), but settling later can (3).
- client’s objectives 2. save on litigation expenses 3. give the lawyer a better grasp of the case
The planning of litigation must be an (1), (2) and (3) process.
- integrative (of client’s objectives) 2. creative (always different, changing) 3. flexible (as development occur)
The settlement approach will depend on the (1). Attempting to settle earlier in the process can (2), but settling later can (3).
- client’s objectives 2. save on litigation expenses 3. give the lawyer a better grasp of the case
The planning of litigation must be an (1), (2) and (3) process.
- integrative (of client’s objectives) 2. creative (always different, changing) 3. flexible (as development occur)
7 prefiling requirements to drafting pleadings
- statutory notice requirements 2 contract requirements 3. mediation, arbitration, review requirements 4. administrative procedure requirements 5. appointment of a legal guardian 6. discovery before suit 7. demand letters
Some actions, primarily against (1) often have statutory notice requirements or else suit will be barred. The usually have (2) and (3).
- governmental bodies such as municipalities 2. relatively short time limits 3. detailed fact requirements
Many contracts, primarily (1) and (2), have notice and claims provisions requiring notice of intent to sue.
- insurance and employment contracts 2. contracts with governmental bodies
By (1) or (2), many disputes must to submitted by binding or nonbinding mediation or arbitration before suit can be filed. (3) frequently have arbitration clauses, and several states require that (4) first be presented to a medical review panel.
- contract 2. statute 3. construction contracts 4. medical malpractice
2 examples in which administrative procedure must have been exhausted before filing suit
- Social Security benefits 2. Veterans Administrations benefits
Legal guardians or conservators may be necessary to secure before filing suit for (1) or (2).
- minors 2. incompetents
A petition to (1) may be filed if there is a risk the person will die or leave the area before formal discovery.
- depose before suit
3 reasons sending a demand letter or a copy of the as-yet-unfiled complaint could be advantageous
- May constitute admissions (such as to breach) by silence 2. May help foster settlement discussions 3. May help reveal defenses of other side
Lecture : Defense firms often use (1) which vary depending one which staff members are utilized. The (2) is the contract and no (3) should be done until it signed. The client may (4) or the attorney may want to do a (5) on the client.
- hourly rates 2. retainer agreement 3. work 4. check prices with another attorney 5. background check (litigation-hungry?)
Lecture : Once the agreement is signed, what are five questions you should beging to examine?
- What kind of case is this?
- What is the cause of action?
- What’s the theory?
- Background?
- What evidence do we have?
Lecture : When examining a case, you should take care to (1) and ask the client (2). You should also find out whether this case may be (3) and what (4) the jury may ask.
- look at it from both/all sides
- what evidence you might find contradicting his story
- difficult to try in AZ
- questions
Lecture: A (1) is when a defendant sues the plaintiff. A (2) is when a defendant sues another defendant, or passes the blame. (eg, Walmart–>All)
- couterclaim
- cross-claim
Lecture : After the basic facts of the case are determined, determine (1), which in turn will determined the type of court you file in and will help you decide on a (2). There are two types of jurisdiction: (3), over a person or company, and (4)–toward property or a status. Subject matter is also important to deciding the type of court, including (5) and (6).
- jurisdiction
- venue
- inpersonam
- in rem
- type of case
- damages (over a certain threshold?)
Lecture : (1) have no statute of limitations. When deciding the “players” of the case, sometimes (2) are given to unknown clients to avoid blowing statutes of limitations.
- Death/murder cases
- fictitious names
Lecture : Looking ahead at the case from the plaintiff side, you should think about what (1) the defense might have.
- affirmative defenses
Three types of witnesses
- fact witness - knows something about a side (lay witness)
- character witness - knows one of the parties (lay witness)
- expert witness - hired
