Chapter 3 - Case Evaluation and Strategy - Concepts

Question 1

3 Reasons the terms of a client-attorney relationship should be established in a written agreement

Answer 1

1. 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

Question 2

Disputes between lawyers and clients are common, but they can largely be avoided by making sure the agreement is (1), (2) and (3).

Answer 2

1. drafted in clear and simple English 2. covers all likely issues 3. specifies what is not covered

Question 3

7 basic subjects the agreement should cover

Answer 3

1. 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

Question 4

3 examples of work that may not be covered in agreement and should be specified

Answer 4

1. appeal 2. worker’s comp claim 3. insurance claim

Question 5

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).

Answer 5

1. amount 2. way it will be determines 3. when it must be paid 4. customary range of fees for similar work in that locality

Question 6

Lawyers can charge by three basic methods: (1), (2) and (3). A (4), credited against an hourly rate, is sometimes asked for up front.

Answer 6

1. hourly rate (corporate, commercial, insurance) 2. fixed flat fee (criminal defense, family law) 3. contingency (personal injury) 4. retainer fee

Question 7

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.

Answer 7

1. shared with another lawyer outside the firm 2. statutes 3. attorney’s lien

Question 8

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may insist on a (1) to ensure payment of funds; this money is placed in a (2) separate from the lawyer’s funds and withdrawn from to pay for fees and costs.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.

Answer 8

1. retainer 2. trust account 3. ledgers 4. Interest on Lawyer’s Trust Accounts (IOLTA)

Question 9

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.

Answer 9

1. fees due the lawyer for professional representation 2. costs 3. contingency cases

Question 9

Although you may draft the letter authorizing the lawyer to file (or defend) suit, (1).

Answer 9

1. the lawyer must sign it

Question 10

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.

Answer 10

1. withdraw 2. potential conflict of interest

Question 10

5 steps to take after the agreement letter has been sent

Answer 10

1. 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

Question 11

4 things to advise the client to do/not do after agreement is made

Answer 11

1. 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

Question 11

5 things you should tell the client with regard to the “blueprint” of proceedings

Answer 11

1. 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

Question 12

4 examples of things to send the client to keep him informed of the proceedings

Answer 12

1. pleadings 2. discovery 3. motions 4. copies of correspondence

Question 12

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).

Answer 12

1. 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

Question 13

A litigation plan consists of (1) and (2).

Answer 13

1. defining the client’s objectives 2. developing a strategy to achieve those objectives

Question 14

8 steps of a litigation plan

Answer 14

1. 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

Question 15

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.

Answer 15

1. theory of the case 2. allegations 3. facts

Question 16

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).

Answer 16

1. claims 2. relief 3. defenses 4. all-inclusive approach 5. advance at trial

Question 17

The pleading stage is also the time to (1) and consider legal issues like (2), (3), and (4).

Answer 17

1. research 2. choice of parties 3. subject matter jurisdiction 4. venue

Question 18

3 questions for planning discovery that should already be answered on your litigation chart

Answer 18

1. 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?

Question 19

4 questions to think about as you plan discovery

Answer 19

1. 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?

Question 20

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.

Answer 20

1. any stage 2. terminating the lawsuit without a trial 3. summary judgment 4. planned discovery

Question 21

The settlement approach will depend on the (1). Attempting to settle earlier in the process can (2), but settling later can (3).

Answer 21

1. client’s objectives 2. save on litigation expenses 3. give the lawyer a better grasp of the case

Question 22

The planning of litigation must be an (1), (2) and (3) process.

Answer 22

1. integrative (of client’s objectives) 2. creative (always different, changing) 3. flexible (as development occur)

Question 23

The settlement approach will depend on the (1). Attempting to settle earlier in the process can (2), but settling later can (3).

Answer 23

1. client’s objectives 2. save on litigation expenses 3. give the lawyer a better grasp of the case

Question 24

The planning of litigation must be an (1), (2) and (3) process.

Answer 24

1. integrative (of client’s objectives) 2. creative (always different, changing) 3. flexible (as development occur)

Question 25

7 prefiling requirements to drafting pleadings

Answer 25

1. 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

Question 26

Some actions, primarily against (1) often have statutory notice requirements or else suit will be barred. The usually have (2) and (3).

Answer 26

1. governmental bodies such as municipalities 2. relatively short time limits 3. detailed fact requirements

Question 27

Many contracts, primarily (1) and (2), have notice and claims provisions requiring notice of intent to sue.

Answer 27

1. insurance and employment contracts 2. contracts with governmental bodies

Question 28

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.

Answer 28

1. contract 2. statute 3. construction contracts 4. medical malpractice

Question 29

2 examples in which administrative procedure must have been exhausted before filing suit

Answer 29

1. Social Security benefits 2. Veterans Administrations benefits

Question 30

Legal guardians or conservators may be necessary to secure before filing suit for (1) or (2).

Answer 30

1. minors 2. incompetents

Question 31

A petition to (1) may be filed if there is a risk the person will die or leave the area before formal discovery.

Answer 31

1. depose before suit

Question 32

3 reasons sending a demand letter or a copy of the as-yet-unfiled complaint could be advantageous

Answer 32

1. May constitute admissions (such as to breach) by silence 2. May help foster settlement discussions 3. May help reveal defenses of other side

Question 84

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.

Answer 84

1. hourly rates 2. retainer agreement 3. work 4. check prices with another attorney 5. background check (litigation-hungry?)

Question 85

Lecture : Once the agreement is signed, what are five questions you should beging to examine?

Answer 85

1. What kind of case is this?
2. What is the cause of action?
3. What’s the theory?
4. Background?
5. What evidence do we have?

Question 86

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.

Answer 86

1. look at it from both/all sides
2. what evidence you might find contradicting his story
3. difficult to try in AZ
4. questions

Question 87

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)

Answer 87

1. couterclaim
2. cross-claim

Question 88

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).

Answer 88

1. jurisdiction
2. venue
3. inpersonam
4. in rem
5. type of case
6. damages (over a certain threshold?)

Question 89

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.

Answer 89

1. Death/murder cases
2. fictitious names

Question 90

Lecture : Looking ahead at the case from the plaintiff side, you should think about what (1) the defense might have.

Answer 90

1. affirmative defenses

Question 91

Three types of witnesses

Answer 91

1. fact witness - knows something about a side (lay witness)
2. character witness - knows one of the parties (lay witness)
3. expert witness - hired