September 14, 2011
Continuing our series on how to defend a lawsuit, this week’s blog focuses on motion practice and discovery.
For an overview of defending lawsuits, please see our last entry in this category.
If you need help with litigation defense or protecting your interests against a lawsuit please do not hesitate to contact us, in Seattle at (206) 407-2536, Redmond WA at (425) 274-9795, or Portland at (503) 224-9946. We will be happy to guide you through the process and help you make the best of your situation.
THIS WEEK – STEPS 4-5: MOTION PRACTICE AND DISCOVERY
Step 4 – Motion Practice
Near the beginning of your case, it may be useful to file procedural motions to challenge your opponent’s claims. Often, claims will be insufficiently plead in terms of their factual specificity. If possible, forcing an opponent to be more specific with certain claim – and getting others dismissed – can narrow the scope of threats you’ll face. With fewer battles to fight in terms of evidence, you’ll be better-able to focus your energies where they’ll be most effective.
Sometimes, it may be possible to attack a claim on the grounds that the attorney filing them did not reasonably investigate the factual allegations. In Washington, an attorney has a professional responsibility to do so; he may not simply rely on his client’s representations.
Step 5 – Discovery
Discovery is the critical process that your attorney will use to find out information from the other side. This information can be used both to strengthen your case and to weaken your opponent’s.
Opportunities for discovery are often limited by court-imposed timelines, as well as by statutes (i.e., you can only present so many interrogatories). You only have so many opportunities to go to the well, and your case often lives and dies by how well discovery goes. That means your discovery must be done right – it is unacceptable to “wing it.” You need a plan.
There are two components to a successful discovery plan: offensive and defensive discovery. Both hinge on preparation, though Offense typically commands most of the work.
To prepare effectively for discovery, you and your attorney must have command of the facts in your possession. The more effective your initial investigation has been, the easier this will be.
On Offense, you must must identify who the key witnesses will likely be, and what you expect them to say about critical facts in the case. On this point, be leery of putting too much stock in your own instincts, or those of your counsel. You may both be subject to your own biases, and you may both be wrong about what a jury (the ultimate trier of fact) would ultimately care about. It is often useful to conduct focus groups to help you figure out what facts may sway a jury to your favor.
It is vital to consider carefully the jury instructions by this stage, if not earlier. They will dictate what facts, and therefore what evidence, are essential to your opponent’s claims and your defenses. Counsel are often wise to build their discovery strategies around the jury instructions. Be sure yours at least considers them carefully in crafting your discovery plan.
It will often be important to depose witnesses in a specific order, in order to make the most of any element of surprise. Sending interrogatories to a witness can be effective to get them on record about a vital issue and lock them into a position, but it can also waste the opportunity to secure an effective sound bite or admission at deposition. Careful use of judgment must be applied to each situation.
You must be prepared to fight for the discovery you need to prevail. If your opponent resists producing the discovery you have requested, you may be able to compel their production through a court order. If your opponent then violates that court order, you may be able to get sanctions, including attorney fees and dismissal of certain claims.
Many top trial attorneys feel it is vital to videotape every deposition. Some 70% of communication is non-verbal, and none of that – pauses, expressions of surprise, stunned silence, anger – appear on a transcript. The cost is often more, though we have had significant success with the tactic in the past. The right sound bite from your opponent can be invaluable in settlement negotiations, and it can make impeachment on the stand a lot more powerful.
Preparation is equally vital on in defensive discovery. Working with your attorney, you should have a clear idea of what issues you are likely to face in the case. From that understanding, you can work early to begin assembling the documents that your opponent is likely to request, and reviewing them with your attorney. This will increase your comfort and increase the likelihood of a successful defense.
Under no circumstances should your attorney conduct your first deposition preparation on the day of the deposition. Ideally, he or she will spend one meeting walking through the proceedings, and then at least one more conducting a mock deposition to help you practice.
If discovery requests by the other side become abusive, you must be prepared to defend yourself. A protective order may be appropriate.
Discovery is usually the biggest part of a case, and often the most expensive. A sound discovery plan goes a long way to eliminating unnecessary fees, as well as high last-minute court reporting fees.
Executed smartly, your discovery plan should yield the best available evidence to:
• help you win on liability, by
• weakening the plaintiff’s case, and
• strengthening your affirmative defenses
• minimize the plaintiff’s claims for damages
• help you prevail on any counterclaims you may have (and establish your own damages)
• maximize the strength of your position in mediation or other settlement.