Any dispute, from a demand letter to a lawsuit, should begin with two objectives. First, a lawyer and a client should discuss desired goals and outcomes. Second, the client needs to provide enough information for a lawyer to fully understand the situation.
These discussions are generally described as an early case assessment, which is a loose term used to describe the process of evaluating the available information to make an informed decision about how to proceed.
During these discussions, you should discuss budgets and timelines, pros and cons, and strengths and weaknesses of alternative approaches. You should understand the differences between mediation, arbitration, and traditional litigation. If you intend to file a lawsuit, you should understand the differences between state and federal courts. You should discuss who will be the key witnesses and what documents might be relevant to the dispute. As importantly, you should make sure to preserve the relevant documents that are in your possession.
The ideal purpose of these early discussions, for me, is to evaluate all of the available information and, in turn, to provide a client with all of the available alternatives to seek a resolution of his or her issue. Only then can clients make the best decision for themselves and their businesses.
Several years ago, I prepared an Early Case Assessment memorandum, which was my attempt to identify the key considerations when evaluating a potential dispute. This list is not necessarily exhaustive, nor is it always necessary to evaluate every item in every case. That said, this is certainly a good starting point for any discussion between a lawyer and a client.
Here is a pared-down version of that memo – if you want the complete version, give me a call.
1. What are we trying to accomplish? Goals and objectives? Budget? Timeline?
2. What elements do we need to establish for our claims or defenses?
3. Will expert testimony be necessary?
4. What are the key areas of discovery, including any necessary third-party discovery?
5. Who are the key witnesses?
6. What are the key documents that need to be obtained?
7. Are preservation or litigation hold letters necessary?
8. What is the scope of potential e-discovery, including procedures and costs?
Things to consider as a plaintiff:
1. Litigation alternatives?
2. Where can and should the lawsuit be filed?
3. Claims or defenses to consider? Do we anticipate any counterclaims?
4. Any pre-filing requirements, such as demand or notice letters?
5. What are the damages?
6. Can we recover attorneys’ fees?
Things to consider as a defendant:
1. Any basis to challenge where the lawsuit was filed?
2. What should be included with an answer, such as counterclaims, affirmative defenses, or verified denials?
3. Can we recover attorneys’ fees?