Chapter 3 - Case Evaluation and Strategy

• The Attorney-Client Agreement

– Purpose: The purpose of having this written agreement is to memorialize the terms of the relationship between the attorney and client and prove the existence of such a relationship when asserting attorney-client privilege.

– Terms: This agreement should  clearly state: (i) the work covered and not covered, (ii) the lawyer’s fee, retainer and costs (including the amount, the way it will be determined – hourly, flat fee or contingency, and when it will be paid), (iii) billings and (iv) authorization for the lawyer to file suit or defend on behalf of the client.  
• The Attorney-Client Agreement 
  
– Attorneys Duties Regarding Fees:  A lawyer has an ethical duty to make the fee reasonable and under no circumstances can any client’s funds be commingled with the lawyer’s funds. CA lawyers are required to hold client funds in an interest-bearing account.  

– Paralegal Role: Once this agreement is signed, the client should sign authorizations forms allowing the paralegal to obtain certain records before the lawyer files suit.  Then, the paralegal should explain to the client what he can and cannot do (e.g., not talk to or sign anything without notice to the lawyer, collect all documents, etc).  Next, the entire trial process should be explained to the client, including timelines.  Finally, the client should be kept in contact and in touch with the case.
• Declining Representation  

Whenever a lawyer declines a potential case, its should be put in writing, usually in a letter to a prospective client making it clear that the lawyer will not be representing the client and setting forth any statute of limitations or other notice statute that my run shortly.  Make sure to send the letter by registered mail, return receipt by addressee only required.  
• Planning the Litigation – After initial fact gathering, but before filing initial pleadings, develop a litigation plan defining client’s objectives and developing a strategy to achieve those objectives.  When assisting the lawyer in developing a litigation plan:
– (1) Reevaluate the client’s objectives, priorities, and cost constraints;
– (2) Develop a theory of the case;
– (3) Plan the pleadings (e.g., identifying which causes of action, relief or defenses are relevant, the choice of parties, the subject matter jurisdiction, and venue); 
– (4) Plan discovery – Identify facts/witnesses still needed through formal discovery and methods for obtaining them, what budgetary restrictions exist for discovery plan and in what order discovery plan should be executed. 
– (5) Plan dispositive motions – These are motions heard by the court at any stage litigation before trial which have the effect of terminating the lawsuit.  Discovery should be used to obtain the facts necessary to prevail when the motions are later made.
– (6) Plan the settlement approach by identifying the client’s objectives.
– (7) Develop a litigation timetable – This is based upon the case’s complexity, the likely responses of the opposing party and the usual time between the filing of a complaint and trial date in the jurisdiction where the case is brought.
• Pre-filing Requirements: After developing a litigation plan, see if any of the following exist:
– Statutory notice / contract requirements – Some actions have statutory notice requirements that must be complied with or else suit will be barred.  In addition, many contracts have notice and claims provisions requiring notice of intent to sue or presentation of claims before filing suit.
• Mediation, arbitration and review requirements – These requirements can exist by statute or contract.

– Administrative procedure requirements – Most claims against governmental bodies cannot be brought in court until administrative procedures have been followed and exhausted.

– Appointment of legal guardian – All individuals bringing suit must have capacity to sue.  Some individuals are deemed incompetent to sue and must have a legal representative or specially appointed guardian litigate for them.  A guardian ad litem is a person appointed by a court to represent another, usually a minor or incompetent.

– Discovery before suit – If there is a risk that a person will die or leave the area before formal discovery begins, a petition to perpetuate testimony (such as a deposition before formal discovery begins) or preserve evidence must be filed. 

– Demand letters – Although not required, still key since if not responded to may constitute admissions by silence.  They can also be used to trigger settlement discussions.  They often will generate a denial letter, thereby providing a good intention of what defenses will be asserted at trial.