Wednesday, May 26, 2010

Master Litigation Plan (Litigation Checklist)

This Master Litigation Plan is part of my Colorado litigation checklist approach to litigation kowledge management and litigation strategy. As I mentioned in my overview of litigation knowledge management, it isn’t enough to collect checklists and best practices for litigation tasks. In addition, these discrete tasks must be fused together through a comprehensive, start-to-finish litigation plan. As with all parts of this litigation system, the creation of this litigation plan has a checklist, a collection of best practices, and is itself subject to iterative improvement. In other words, this will always be a work in progress:
The overarching goals of the master litigation plan are to ensure that the multiple potential courses of the litigation are thought through at the outset, and that a plan is developed to influence this decision tree with practical tools, such as understanding the elements of an affirmative defense at the outset to make sure that pleadings, investigations, and discovery lay the foundation for future success as effectively as possible. For this reason, the master litigation plan tends to work backwards from the prospects for success at trial on with dispositive motions. The framework of the master litigation plan is the to-do list (itself a checklist customized to the specific case), as well as sub-plans for the legal foundation, factual investigation, discovery, motions, settlement, and trial. And, of course, the master litigation plan is a living document—it must be continually re-evaluated and revised as the case environment evolves.
- Investigate facts surrounding claims/potential claims, including all potentially involved parties
- Identify potential claims/counterclaims/cross-claims/third-party claims
- Identify client objective(s)
- Identify statute of limitation issues/statutory prerequisites
   -- Consider use of a tolling agreement where applicable
- Identify jurisdiction/forum/venue issues
- Identify options/requirements for binding arbitration or other ADR
- Identify potential affirmative defenses
- Identify elements of all potential claims and affirmative defenses
- Develop plan for pre-suit negotiations (e.g. demand letter)
- Develop pleadings plan (complaint/answer/Rule 12(b) motions)
- Develop legal research plan (as appropriate)
- Develop discovery plan (to support motions & trial plan)
- Develop expert witness/consultant plan
- Develop motions plan (offensive/defensive)
- Develop settlement plan
- Develop trial plan (theme, objective, etc.)
- Develop appeal plan (where appropriate)
- Review all plans to ensure each plan is compatible/supportive of others
- Build master case to-do list
- Once lawsuit is filed, build master case calendar
Best Practices:
- Calendar times to review/revise plan: at regular intervals, as well as after case milestones.
- Brainstorm on potential strategic or tactical maneuvers to achieve client objectives—review lists of strategic and tactical concepts for possible use.
- Communicate with client early and often about the development of this strategic plan—consider whether it should be communicated formally as part of a case evaluation.
- Consider whether a legislative solution is more appropriate or complementary as a means to achieve client objective.
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.

This post is part of my Colorado litigation checklist approach to litigation kowledge management and litigation strategy.

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