Friday, May 28, 2010

Litigation Resources

As I mentioned in my post on litigation knowledge management systems, continual improvement is critical.  For me, this consists in part of checking several authors, blogs, and websites at least once a week for ideas to incorporate into my developing litigaiton checklist.  I make it a point to check both "legal" and "non-legal" resources--as a general rule, people outside the litigation world have a much more advanced grasp of trends and innovations, and their ideas and observations are often directly applicable to litigation theory.  Here are some of the links I check regularly:
"Legal" Links:
- Carolyn Elefant:  Her "My Shingle" blog focuses on trends and ideas for solo attorneys, but the problems and innovations she discusses are relevant to anyone thinking about the future of litigation.
- Evan Schaeffer:  His "Trial Practice Tips" blog is one of the finest best practices resources on the web, with a constant stream of best practices for litigators.
- Paul Luvera:  His "Plaintiff Trial Lawyer Tips" blog is another great source of best practices.
- Matt Homann:  His "The [Non]Billable Hour" blog is a great source for big-picture thinking about innovation and the practice of law.
"Non-Legal" Links:
- John Robb (Global Guerrillas):  cutting edge thinking on innovation and trends from another former Air Force officer.  He focuses on insurgency and military strategy, but these themes are surprisingly applicable to litigation.
- Dave Pollard:  a former knowledge manager for a major accounting firm, he now focuses on community building and sustainability issues, but his writings are always informative.
- Kevin Kelly:  editor of Wired magazine, and an excellent source of the latest trends and innovations in our increasingly networked world.
- P2P Foundaiton:  the best collection of news and writings on developments in peer-to-peer theory, a topic that I think has a great deal to teach litigation management.
- John Michael Greer:  many attorneys might be uncomfortable reading the writings of an archdruid.  Don't be.  Greer's weekly posts are some of the most insightful and informative on the themes of civilization, complexity, and the future of industrial society--all topics of interest to anyone considering the future of litigaiton.

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.

Friday, May 21, 2010

Taking Expert Depositions (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It addresses taking the deposition of an expert witness.
Checklist: See the general deposition checklist
Thoughts & Best Practices:
Subpoena Expert’s Files
- Unless an agreement can be reached to provide expert’s files, subpoena these in time to review prior to deposition
- Additionally, ask for all correspondence between expert, opposing counsel, and/or opposing party.
Identifying the expert’s opinions at trial:
- Identify the opinions expert intends to provide at trial, and confirm that expert will not testify to any other opinions.
- For individual opinions, identify the specific bases for each and confirm that expert will not testify at trial that there were any other bases.
- Ask “what’s your understanding of your role in this litigation?”
- Identify the basis for each opinion: what materials reviewed, what tests performed, etc.
Undermining the expert’s opinions:
- Where expert used one methodology/test, ask about other possible methods, whether expert considered, why expert chose not to use, whether expert has ever used such methods, etc.
- Did expert make any incorrect assumptions or calculation errors? If so, begin by having expert testify as to the importance of that calculation in overall conclusion. Most likely it is best to not highlight the expert’s error in deposition and save this “reveal” for trial, but consider settlement posture, trial prospects, etc. in evaluating this issue.
- Explore range and degree of uncertainty in expert’s opinions. Often absolute certainty hurts credibility, and any admission of uncertainty creates reason for doubt.
- Use hypothetical examples to test the limits of expert’s opinions—e.g., “would that still be your opinion if ____?”
- Explore whether the expert have sufficient time/access/information to properly form opinions?
- Was any information withheld from the expert? Did the expert ask for any information or access that was not provided? Is there a pattern to this withholding that can skew the expert’s opinion?
- Ask if there was any information that would have been helpful but that expert did not have, or whether there were any tests or methods that may have been useful to pursue but where expert did not have time, materials, or budget for?
- Ask if expert personally read all of the information provided?
- Ask if expert consulted with other experts in the field? Why or why not?
- Ask expert for treatises consulted in forming opinion—other sections of text may provide helpful information.
- Review any treatises or published sources referenced in expert’s report—does it suggest alternatives, methods, or steps not taken or considered by expert?
- Has expert ever been excluded under Daubert/Shreck or had some or all of testimony excluded?
Laying the foundation to move to exclude expert’s opinions:
- Can any part of expert’s opinions be construed as being based on legal opinion formed by non-attorney expert?
- Did expert base any part of opinion on a conclusion that comprises expert opinion but where expert not qualified?
Attacking the expert for bias:
- Examine expert’s C.V. for shortcomings, puffery, false claims, omissions, certifications/licenses that have lapsed, or experience that is only tangential to the contested issue
- Learn about all of the expert’s certifications—Are they the most relevant certifications? Why hasn’t expert earned other certifications?
- Does the expert have any connection to the opposing party, opposing counsel, or opposing party’s industry/profession?
- Attack the accuracy/credibility of expert by looking at business practices: Is it a volume shop? What percentage of income is earned as expert witness?
- Ask about the expert’s tort reform activities, political donations, letters or emails to media or politicians, etc.?
- Does the expert have any track record of opinions at trial being later validated or invalidated by reality (e.g. in cost of remediation cases, etc.)?
- If report or investigation was co-authored, has that been concealed? How much of report was product of someone other than expert?
- Check litigation history (especially things older than the 4 years of required disclosure), look for whether expert’s opinions have been excluded, a pattern of testifying only for one side of an issue (ask % testifying for side), or previous opinions that undermine present opinion.
- Expert’s fees: How much did expert earn as expert witness in last year? Average annual income from expert witness work? Percent of income from expert witness work? Most ever earned as expert witness in single case?
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 knowledge management and litigation strategy.

Wednesday, May 19, 2010

Designation of Non-Parties At Fault (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It addresses the designation of non-parties at fault.
-Designation of non-parties at fault is governed (in Colorado) by C.R.S. 13-21-111.5.
- Must designate "within ninety days following commencement of the action unless the court determines that a longer period is necessary." Id.
- Provide "a "brief statement of the basis for believing such non-party to be at fault." Id.
- Ensure that your brief statement "would satisfy all the elements of a negligence claim." Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 81 (Colo. 2001).
- If the non-party designated is a licensed professional or a company that employs licensed professionals where proof of fault will require establishing professional negligence through expert testimony, then you must also file a certificate of review.
Thoughts & Best Practices:
- Consider requesting an extension to pursue enough discovery to facilitate naming all applicable non-parties at fault.  The court will not grant an extension of the 90-day deadline simply to accommodate your schedule or because you forgot to designate a party, but you should be able to get an extension if you can demonstrate that it is necessary, such as to obtain discovery.
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 knowledge management and litigation strategy.