Pre-trial is an important phase in the litigation process and the majority of civil cases are disposed of at the pre- trial stage. The judiciary and the legislature in many states are devising new ways to dispose of cases efficiently, and judicial case management is an important part of that effort. Traditionally, judges played a passive role in pre trial case management but now things are changing and judges play a more prominent case manager role, encouraging lawyers and litigants to participate in early case resolution.
One popular method of encouraging early case resolution is by scheduling status conferences/pre-trial conferences. These early conferences help in setting time frames for concluding all pre-trial activities. Judges may also ask the lawyers to set a possible trial date for the case.
Pre-trial case management helps in identifying, analyzing, and narrowing the actual issues for trial. Effective pre-trial case management can help in minimizing (if not eliminating) unnecessary expense and delay in litigation. Here are some suggestions that can help you better handle pre-trial litigation. Some of these you may have already adopted and others may help you become more effective at the pre-trial stage, so you might want to read carefully.
Case Intake – Effective Client Interviews and Case Assessment
Understanding the case is very important to effective case presentation. So, a good first step is to get a thorough picture of the client’s facts and background at the first client meeting/interview. Make sure to document the details correctly and arrange follow-up calls to fill in gaps. At the close of the client interview, you should be able to narrate the client facts accurately with all supporting documents. Having stated the facts, you should be able to lay out the potential claims by now.
An attorney who takes notes of the facts, delves into every minor detail of the case, and asks questions related to the case make a very good first impression before the client. Gathering all possible information at the first meeting helps in saving time and money. A thorough knowledge of the case will also help you in deciding the complexities of the case and formulating the possible attorney fees. An effective client questionnaire may include the following:
- Biographic information – Client’s name, age, sex, marital status etc.
- Contact details – Address (primary and secondary), phone number, e-mail, fax etc.
- Personal info – Social security number, TIN etc.
- Internal Case Number – When you take a case, be sure to assign a unique identification number to the case. It is not advisable to write client names on top of files. Therefore, it is best to name the case based on the type of the case, initials of the client, and a serial number.
- Synopsis – Include a brief factual summary of the client facts.
- Client Preferences – Here you can note client preference on the best time to call him/her.
- Associated Parties – You can use this space to list down other parties or attorneys, if any, who are an active part of the case.
- Related Cases – Note down related cases, if any.
After filling in the client questionnaire it would be good for the client to run through the sheet and confirm details. Always remember to pen down any clarifications made.
Task Assignment – Delegate Right Amount and Right Kind of Work
Proper planning and case preparation is the key to success. Plan in advance as to who in your firm will be handling the case. Lack of planning can land you up in situations where the case is handled by the available attorney but not the right attorney. You can use a task assignment sheet to assign tasks. The task assignment sheet can include the below details:
- Identify the case – Note down the case that the attorney is to handle. If you want the assignee to work on a particular part of the project, for example, research, drafting, client contact etc . Please make sure you are clear at the beginning itself.
- Start dates of tasks – Depending on workload and timelines, you can set start dates for tasks.
- Due date of tasks – If you have any internal deadlines, be sure to include that as well.
- Team – If the task case is assigned to more than one attorney, please include the name of the other attorneys who will be part of the case in the task assignment sheet/e-mail.
- Notification – Timely notification to concerned attorney.
Delegation is an art that does not come easily. Therefore, before delegating work, ensure that the work is assigned to the right person. There is no one-size-all-fits formula for delegating legal work. In some cases, it would be good if a client call is attended by the paralegal or staff clerk so that the attorney can use his/her time for some other tasks. On the other hand, there are cases that require attorney himself/herself to attend client calls. Before delegating understand the type and complexity of work and then choose the right person to delegate responsibilities. An efficient delegation eases you and makes you available to handle high end work.
Effective case task assignment also helps in avoiding any last minute case handling issues. The case assignment sheet can be modified/revised on a need basis to include additional responsibilities as the case progresses. For example, you may want to revise the sheet and include details of attorneys/paralegal who will be interviewing/deposing the witnesses.
Things to Avoid
Although the law permits broad and far-reaching discovery, o depositions are often too long and include unnecessary questions that are only tangentially related to the case. The same can be said of other discovery tools such as interrogatories and request to produce. This may be due to lack of: planning, experience, or thorough understanding of the claims/issues involved in the case. Wasteful discovery takes up precious time and ends up in unnecessary costs and delays leading to client dissatisfaction. Although you do not have control over the discovery of our opponents you can avoid or at least minimize the delay from your side by resorting to meaningful discovery. Do not burden the court with endless pre-trial evidentiary motions. Bring pre-evidentiary motions only if it is important and it would be a good idea to keep the motion short and on point.
Pre-trial Case Settlement
Because the vast majority of civil cases are settled at the pre-trial stage. It is very important that you prepare well and also prepare your client for the case. Lack of preparation may result in missed opportunity to serve interests of your clients. Before proceeding with settlement make sure:
- To assess the benefits of the settlement for your client. The costs involved if you were to opt for trial.
- Choose the right mediator for the case and prepare the client for mediation.
- Settlement mechanisms – There are different settlement mechanisms. Choose the right one.
Read on to learn about settlement and the alternatives to litigation. You can evaluate your client situation against the different mechanisms that are available to settle your case before going to the trial stage. At times it is cost worthy to settle your cases before trial. A settlement ends the lawsuit. Therefore, be cautious to choose the right process. Some methods are:
Formal Offer of Settlement. In this type of settlement the client attorney drafts the terms of the settlement. The case would be settled if the opponent accepts the offer of settlement. The settlement is strictly based on the terms in the settlement offer.
Settlement by Negotiation. Here you will have to sit and negotiate terms of settlement with opponent and reach at settlement of the dispute.
Mediation. Here the parties can negotiate the terms of settlement often involving a mediator (a neutral third party.) The mediator assists the parties’ settlement efforts. However, s/he cannot force the parties to reach at settlement.
Arbitration. If your client has entered into any arbitration agreement relating to the issue, you will have to initiate arbitration proceeding before you go for trial. However, in some cases, courts may order parties to settle their disputes using arbitration. In arbitration, a neutral third party, called an “arbitrator,” tries to settle the dispute. Here both parties present their case and argue the case before an arbitrator. The arbitrator makes the final decision based on the evidence presented and the arguments made.
Technology has greatly impacted the practice of law. Today there are different technology tools that help lawyers to better serve clients in an efficient manner. However, the lawyer community is hesitant to accepting these changes. It is time to shed traditional case management practices and use more of technological solutions available to lawyers. Technology helps you to be responsive, efficient, and productive and streamline your practice. By using the best technologies, you can handle cases more efficiently. Some technology trends that lawyers should pay attention to and include in their law practice are:
- Case Management Software. Today, there are case management softwares that track each and every details of your law practice and help you to stay on top of client matters. These softwares can be used to set limitation reminders, case conflicts, staff assignments, time management, and marketing development activities. Case management softwares help you to quickly look up case statuses at any given point in time. These software help you to manage cases efficiently. The report function of the program helps in preparing client case summary within seconds. If you have any hitches using the program, you can easily seek the help of online support that the program vendors provide.
- Billing Software. There are time management and billing softwares that help to manage cases and staff assignments. The software can also be used to produce professional invoices and e-mail it out to clients. The ‘Report’ feature helps in generating case based report for the time period that the user chooses.
- Discovery Management Solutions. Today we see more of data being generated and stored electronically. Lawyers can now take advantage of discovery management softwares to streamline and standardize electronic discovery requests in a cost effective manner. These software also help in culling relevant data from the e-discovery documents. Use of such artificial intelligence-predictive coding in managing discovery documents is in use among lawyers and gaining importance.
- Cloud-Based Document Management Services. Many law firms are using cloud computing to store case files that were traditionally stored in cabinets or servers. It is a good management practice to have a centralized file storage. Cloud-Based Document Management systems help lawyers to store their case files in one storage location with the facility You can use virtual storage spaces to store your files. This helps in better managing your database. The search feature help in easy retrieval of docs.
- Attorney Support Services. Technology has reshaped legal support services. Traditionally lawyers increasingly depended on paralegals for support services. Advanced technology has enabled lawyers to transmit work over distances in relatively less time. The technological solutions help you to assign work over long distances in just one click. Moreover, the cloud based storage make it easy to access documents from anywhere in the world preserving its confidentiality. Therefore, you can consider using legal support services that provide quality services in a timely and cost efficient manner. Now you need not worry when you have short deadlines to meet, you can consider using these attorney support services. It is increasingly common now a days to seek the help of these attorney support service providers to create deposition summaries, cull relevant data from discovery documents, draft complaints, and motions.
Planning and preparation is the cornerstone of the success of every trial. It is true that you will have to devote extra time and effort at the pre-trial stage to lay out steps for effective case management. Such re-crafting of your lawyer practice will help in better case management and improved client satisfaction. A perfect mix of technology in case handling and client management will help lawyers in delivering quality services at a cheaper rate. Above all it helps in avoiding the delay involved in pre-trial discovery. Studies show that many cases favor pre-trial settlement these days. Therefore, it is very important that you handle your client case with sufficient care and caution at the pre-trial stage so that the interests of your client are best served.
About the Author
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