Tuesday, July 27, 2010

Trial Management Order (Litigation Checklist)

This trial management order (TMO) checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist addresses the Colorado-specific Trial Management Order requirements of C.R.C.P. 16, which diverge somewhat from the Federal Rules.
- Responsible attorney must file TMO no later than 30 days before trial.
- Order must be signed by lead attorney for each party and include a place for the court's approval.
- Parties must work to agree on as many elements of the TMO as possible, and should designate elements on which they cannot reach agreement as "disputed."
- The TMO should contain the following sections (See example TMO, below, for sample language):
 -- A "Statement of Claims and Defenses" by each party.
 -- A section setting forth "Stipulated Facts."
 -- A list of any "Pretrial Motions" still pending before the court.
 -- A statement regarding "Trial Briefs," including whether they will be filed and the filing schedule.
 -- An "Itemization of Damages or Other Relief Sought," including a computation of any economic damages, set forth by every claiming party.
 -- "Identification of Witnesses and Exhibits--Juror Notebooks," including:
  --- Witness List: attached to TMO, list as "may call" or "will call," and whether accepting or objecting to experts
  --- Exhibits: attach list, using numbers for plaintiff and letters for defendant, as well as notation if opposing party objects to authenticity, and if the opposing party stipulates to the authenticity.
  --- Juror Notebooks: proposal for items to be included.
  --- Deposition and other preserved testimony: see checklist on designation and objection to preserved testimony.
 -- A section addressing "Trial Efficiencies and Other Matters," which is an opening for general discussions of trial efficiencies, but must include a statement that the parties have considered "ways in which the use of technology can simplify the case and make it more understandable."
Thoughts & Best Practices:
- If there are any disputed sections of the TMO, consider filing a Notice to Set Trial Management Conference at the time of filing the TMO to resolve these issues as far in advance of trial as possible.
- Consider requesting a TMO conference to discuss subtleties and courtroom specific procedure, such as audio/visual set-up and preferences of the judge.
- Where preserved testimony will play a significant role, especially the playback of video depositions, consider highlighting to the judge the importance of rulings on objections to preserved testimony in time to prepare an admissible video clip for trial (and to avoid the challenges of editing/fast-forwarding/muting on the fly to account for rulings on objections while a videotaped deposition is playing).
- Depending on the motions practice to date and the parties intentions regarding filing trial briefs, the statement of claims and defenses in the TMO may be the first or best opportunity to set up your story for the judge.  Accordingly, it should not be merely a dry recitation of claims or defenses.
- Consider reaching an agreement as to sequestration of witnesses in the proposed TMO.  Additionally, where one party has more than one corporate representative, it is worth considering whether more than one representative (and potential witness) will be allowed at counsel table and exempt from sequestration.
Example Forms:
- Click Here for Example Trial Management Order (Locked)
- Click Here for Publicly Editable Trial Management Order (Please feel free to make improvements to this form, and comment below to describe what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
This trial management order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Wednesday, July 21, 2010

Case Management Order (Litigation Checklist)

This case management order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  Because case management, as governed by C.R.C.P. 16, is one of the few areas where the Colorado rules differ significantly from the Federal Rules of Civil Procedure, this checklist is only intended for use in Colorado state courts.  C.R.C.P. 16 provides for a presumptive case management order for most civil litigation, but Rule 16(c) permits parties to move for a modified case management order within 45 days of the at issue date, either individually where the parties do not agree on the appropriate modifications or by filing a motion for entry of a stipulated case management order.  The following checklist and list of best practices is intended for use when considering and moving for a modified case management order.
- Must file for entry of a modified case management order within 45 days of the at issue date.
- Confer with opposing party prior to filing as required by C.R.C.P. 121 Section 1-15(8).
- File a [Stipulated or Unopposed] Motion for Entry of Modified Case Management Order, and attach the Proposed Modified Case Management Order as an exhibit to the motion.
- Rule 16 only requires that the modified order state the differences from the presumptive case management order, though it is common practice to set forth a complete case management order.
- For every point of divergence from the presumptive case management order, set forth "a specific showing of good cause for each modification sought including, where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2)."
Thoughts & Best Practices:
- The provision for requesting a modified case management order is one of the most powerful tools available to the litigator to tailor procedure to the demands of a specific case, to control discovery costs, and to control the litigation schedule.  Parties seeking to limit discovery and control cost should keep in mind the provision of Rule 26(b)(2)(F)(iii) which states that the court, in considering a motion to depart from the presumptive discovery provisions, should consider "[w]hether the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues in the litigation, and the importance of the proposed discovery in resolving the issues."  In other words, it may be reasonable to move for limitation of discovery below the presumptive allowances for depositions, interrogatories, etc.
- Additionally, a modified case management order is an ideal tool to set forth a timetable for matters not covered by the presumptive case management order, such as the disclosure of a log of privileged documents, to set forth the requirements of such a log, to address disclosure of electronically stored information, and to set forth a timetable for the submission of a proposed protective order.
- Consider "outside the box" possibilities to expedite litigation and control costs, including a "sneak peek" of purportedly privileged or work product documents subject to a non-waiver agreement, etc.
Example Forms:
- Click Here for Example Proposed Case Management Order (Locked)
- Click Here for Publicly Editable Proposed Case Management Order (Please feel free to make improvements to this form, and comment below to describe what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
This case management order (Colorado) checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Wednesday, July 14, 2010

Identifying Disruptive Technologies for Law Firms

A "disruptive technology" is an innovation that improves a product or service in a way that the market doesn't expect, and as a result challenges the assumptions upon which existing business models are based.  I've identified a number of disruptive technologies for law firms below.  The first two are widely discussed and may no longer be disruptive to the extent that they are generally known to the marketplace.  The next three are, in my opinion, far more disruptive and largely unrecognized.  When discussing disruptive technologies, most commentators focus on "nuts and bolts" technologies--mobile devices, software, etc.  In my mind, the most disruptive technologies in the legal world will be found in new and innovative organizational structures, business models, systems and platforms:

Automated Document Assembly & Commoditization:  This includes legal "expert systems" and easily commoditized legal work.  To the extent that this is a means of undercutting rates currently charged for routine and routinized legal work, it is really a low-cost technology, and as Dvorak points out, not accurately described as a disruptive technology.  However, to the extent that automation and expert systems change the way attorneys perform bespoke and sophisticated legal services in partnership with those systems, this may be truly disruptive to contemporary law firms.

Value Billing:  The notion of charging for legal services based on the value provided, rather than the time taken to perform the service (the ubiquitous "billable hour"), is also a disruptive technology.  From the client's perspective, paying for value provided makes far more sense than paying for an attorney's time.  Law firms, however, are largely structured around the billable hour, and are having a very challenging time adjusting.  To the extent that some firms develop ways to effectively implement value billing, clients will flock to those structures and the existing assumptions of most firms will be challenged.

Open-Source Knowledge Management:  This has my vote as the most potentially disruptive technology for law firms.  What lawyers do, at its core, is manage knowledge and implement systems for applying that knowledge to solve clients' problems.  I'm not talking about case law, statutes, and other knowledge accessible via legal research here--that is so voluminous that, while they may keep some tidbits in their heads, most lawyers have long ago realized that they had to rely on external archives of information.  Instead, what I'm talking about is the knowledge of how to apply the law, lists of best practices for doing so, and systems for applying those best practices.  Few, if any lawyers have conceded that they might need a system for this knowledge.  Instead, it is something that you're supposed to learn and remember.  But our memories are spotty, and even the most experienced lawyer doesn't have access to the depth and breadth of best practices available to the "crowd."  For that reason, the potential of open-source knowledge management and development of legal systems (checklists, indexes of best practices, etc.) has the potential to truly disrupt the way most lawyers and law firms do business today.  Additionally, while many firms tout the benefit of their institutional knowledge to clients, no firm can compete in breadth and depth with a cooperative, open-source knowledge management tool that connects solo and small firms across the country.  Because it has the potential to fundamentally change how attorneys practice, and because it has the potential to eliminate the single greatest selling feature of mid- to large-size firms, open source knowledge management is a disruptive technology to watch.

Ad Hoc Legal Teams:  Another disruptive technology, closely coupled in theory with open-source knowledge management, is the potential to use our more connected, more peer-to-peer networked society as a means of connecting attorneys as needed on the basis of geography, skill, and specialty to best serve clients.  While this already happens in some cases, it is a dramatic departure from the traditional firm business model that seeks to capture all the talent, specialities, and experience needed to serve clients within the borders of a single firm, at the exclusion of competing firms.  As with knowledge management, even the largest firm can't cobble together as highly specialized and tailored a legal team as can be assembled by picking and choosing the most appropriate attorneys and non-attorney specialists from around the nation (and world).  Because it has the potential to eliminate the advantage of firm size and multiple firm office locations, the potential to build ad hoc legal teams is another disruptive technology to watch.  It is not yet well understood or accepted by clients, but it seems to be only a matter of time before innovators figure out how to address the potential ethical and business issues and sell clients on its inherent advantages.

Access to Capital Markets:  Open-source knowledge management and ad hoc legal teams--the disruptive technologies listed above--act as vectors pointing toward a future of more decentralized (but networked), smaller-scale or individualized law practices.  One innovation, arguably a disruptive technology, however, points boldly in the opposite direction:  capital.  In the US, law firms are ethically prohibited from having non-lawyers as owners.  That means that law firms don't have access to capital markets (angel investors, VC, stock markets, bond markets) in the way that traditional companies do.  In the UK and elsewhere that is changing (there is already a publicly traded law firm in Australia), and **if** it were to change in the US, it could lead to a radical restructuring of law firms through consolidation and growth.  Large firms, backed by significant infusions of capital, are also far more likely to invest money in innovation, automation, expert systems, and knowledge management and then staunchly protect these assets as trade secrets and intellectual property.  I'm not aware of a serious push at the moment to allow law firms access to capital markets, but this must be considered as a potentially highly disruptive technology should it ever come to pass.

What are the most disruptive technologies for law firms that you see emerging in the next few years?

Certificate of Review (Litigation Checklist)

This certificate of review checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy
- C.R.S. Section 13-20-602 requires the filing of a certificate of review in every action for damages or indemnity against a licensed professional (e.g. medical/dental malpractice, legal malpractice, engineering malpractice, etc.) or acupuncturist, and in every action against a company or firm that employed such a licensed professional at the time of the alleged professional negligence (even if professional not personally named). This includes doctors, lawyers, engineers, real estate agents, etc., though the exact extent has not been rigorously tested in Colorado.

- Additionally, if you are the defendant and are designating a licensed professional as a non-party at fault, you must file a certificate of review. C.R.S. Section 13-21-111.5(3)(b).
- Certificate must be filed within 60 days after the service of the complaint, cross-claim, or counter-claim naming the licensed professional unless a longer period is necessary for good cause shown.
- Certificate of review shall include:
-- Statement that filing attorney has consulted a person who has expertise in the area of allegedly negligent conduct;
-- That the expert has reviewed the known facts, including such records, documents, and other materials which the professional has found to be relevant to the allegations of negligent conduct and, based on the review of such facts, has concluded that the filing of the claim, counterclaim, or cross claim does not lack substantial justification within the meaning of C.R.S. Section 13-17-102(4).
-- A certificate of review against a physician must declare that the person consulted meets the requirements of C.R.S. Section 13-64-401.
-- In all other certificates of review, the certificate must declare that the person consulted can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience, the consultant is competent to express an opinion as to the negligent conduct alleged.
- It is NOT necessary to identify the expert consulted, though the court may require the identity disclosed to it (but not opposing parties) for verification.
Thoughts & Best Practices:
- Bottom line--if a showing of professional negligence via expert testimony is a requirement of any claim or defense, a certificate of review must be filed.

- If in doubt as to whether to file a certificate of review it is probably best to file it, as failure to file where required will result in dismissal of your case. Where it would be prohibitively expensive or otherwise difficult to file a certificate of review where you are unsure of its necessity, you can file a motion for determination of whether such filing is required. See Badis v. Martinez, 819 P.2d 551 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 842 P.2d 245 (Colo. 1992).
- Certificate of review not required in claims against a professional that does not relate to defendant’s professional activities. See Siepierski v. Catholic Health Initiative Mountain Region, 37 P.3d 537 (Colo. App. 2001).
Example Forms:
- Click Here for Example Certificate of Review (Locked)
- Click Here for Publicly Editable Certificate of Review (Please feel free to make improvements to this form, and comment below to describe what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
This certificate of review checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Motion to Consolidate (Litigation Checklist)

This motion to consolidate checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy
- Confer with all parties pursuant to C.R.C.P. 121 Section 1-15(8).
- Explain why cases to be consolidated are factually similar, and address any obstacles to consolidation.  See example motion, below, for language.
- Quote standard set forth in C.R.C.P. 42 for consolidation, and specifically address "common questions of law or fact," "unnecessary cost or delay," and "judicial economy" as grounds for consolidation.
- State that C.R.C.P. 121 Section 1-8 requires consolidation into the case that was filed first.
- Attach a proposed order.
- File notice of motion to consolidate, attaching motion to consolidate, in all cases where you are requesting consolidation.
Thoughts & Best Practices:
- If there is the possibility of inconsistent outcomes between multiple cases, highlight this to the court as an additional basis for consolidation.
- Consider whether judge presiding over case into which cases will be consolidated is favorable to your client's position compared to present judge(s).
Example Forms:
- Click Here for Example Motion to Consolidate (Locked)
- Click Here for Publicly Editable Motion to Consolidate (Please feel free to make improvements to this form, and comment below to describe what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
This motion to consolidate checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Friday, July 09, 2010

The Litigation Checklist

This is the start page for my Colorado Civil Litigation Checklist. I am currently developing this checklist as a comprehensive litigation plan and knowledge management system for litigation, providing an overarching organizational theory, a set of checklists, and a list of best practices indexed by topic, all continually updated in an open-source manner.
The Colorado Rules of Civil Procedure are largely modeled after the Federal Rules, with some significant exceptions. Your feedback is solicited and appreciated--please email me directly or leave comments on appropriate posts.  This checklist is focused on litigation in Colorado state courts.  For checklists specific to litigation in the United States District Court for the District of Colorado, see my Federal Litigation Checklist.
Engagement & Billing
- Conflict check
- Standard v. alternative billing arrangements
- Retainer
- Motion to Withdraw
Initial and Iterative Strategic Litigation Plan
- Master Litigation Plan (an overview of system for using this checklist)
- Factual investigation
- Develop pleadings plan (identify claims, elements, defenses, jurisdiction, etc.)
- Develop legal research plan
- Develop expert witness/consultant plan
- Develop motions plan
- Develop settlement plan
- Develop trial plan
- Develop appeal plan
- Master litigation to-do list
- Master litigation calendar (including calendar of court deadlines)
- Case evaluation to client
- Settlement offer
- Disclosure cover letter
- Discovery dispute letter
- Pleadings plan
- Substitution of counsel
- Civil cover sheet
- Summons
- Acceptance and waiver of service
- Motion for alternative service / service by publication
- Service
- Filing returns of service
- Answer
- Counterclaims
- Cross-Claims
- Third-Party Complaint
- Jury Demand
Motions Practice
- Motions plan
- General pre-filing checklist
- Proposed orders
- Motion to Remand
- Motion to Consolidate
- Motion for Change of Venue
- Motion to Dismiss
- Motion to Strike
- Motion for a More Definite Statement of the Claims
- Motion for Judgment on the Pleadings
- Motion to Amend to seek exemplary damages
- Motion for Extension of Time
- Motion to Vacate Trial/Continue
- Motion to Stay
- Motion for Summary Judgment (& Memorandum of Law)
- Motion for Default Judgment
Case Calendar & CMO
- Initial disclosures
- Privilege logs
- Expert witness/consultant plan
- Written discovery requests
- Written discovery responses
  -- Preliminary Statements and Objections
- Interrogatories
- Requests for Production
- Requests for Admission of Genuineness
- Requests for Admission
- Subpoena
- Subpoena Duces Tecum
- Motion to Quash Subpoena
- Motion for protective order
- Notice of Deposition
- Notice of 30(b)(6) Deposition
- Taking depositions
- Defending depositions
- Deposition objections & disputes
- Verification & corrections
- Discovery disputes
- Motion to Compel
Expert Witnesses
- Expert witness/consultant plan
- Consulting and/or testifying expert?
- Engagement
- Shared/joint expert?
- Guidelines to experts on written reports
- Guidelines on correspondence with experts
- Review of expert reports
- Expert disclosures
- Endorsing Non-Retained Experts or Cross-Endorsing Experts
- Defending Expert Depositions
- Motions to exclude - Shreck/Daubert
- Direct Examination of expert witnesses
- Cross-Examination of expert witnesses
Mediation & Settlement
- Settlement Plan
- Mediation Statement
- Mediation
- Tax ID and W-9 requirements
- Tax planning advice/how payment is characterized
- Stipulated Dismissal
- Motions to Compel Arbitration
- Selection of arbitrators
- Selecting governing arbitration act (FAA v. CRUAA or other state analog)
- Proposed arbitration scheduling and procedure orders
Trial Prep
- Designation of preserved testimony
- Objections to preserved testimony
- Witness and exhibit lists
- Motions in Limine
- Jury Instructions
- Verdict Form
- Trial plan
- Voire Dire
- Opening
- Direct Examination
- Cross Examination
- Experts
- Preserved testimony
- Trial objections
- Motion for Directed Verdict
- Closing
- Proposed findings of fact and conclusions of law
After-Action Procedures
- Review use of checklist in matter, make changes and modifications as appropriate
- Seek feedback from judge, arbitrator, mediator, opposing counsel, and client
- Thank you and wrap-up with client
- Appeal plan
- Preserving issues for appeal
- Motion to stay appeal
- When to appeal
- Notice of Appeal
- Appellate calendar
- Designation of the Record
- Briefs
- Opening brief
- Response brief
- Reply brief
- Cross-Appeal considerations
- Motion for leave to file Amicus brief
- Amicus brief
- Oral argument
- Appellate motions
Execution of Judgment
Other Post-Trial
- Motion for Attorneys' Fees
- Motion for Relief from Judgment
- Motion for TRO and Preliminary Injunction
- Verified Complaint for Declaratory Judgment and Injunction
Bankruptcy Considerations
- Bankruptcy Considerations
- Suggestion of Bankruptcy
- Adversary proceedings in Bankruptcy Court
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

Stipulated Protective Order (Litigation Checklist)

This stipulated protective order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  Frequently parties will find it in their mutual best interest to agree to a protective order at the outset of discovery in order to protect sensitive information, to expedite disclosure, and to clarify the rules that will govern sensitive information.  This checklist addresses just such a situation where parties are able to stipulate to a protective order, and is not intended to address the situation where a party seeks a protective order in response to discovery or a subpoena.
- State the the parties stipulate (or that other party does not oppose), pursuant to either C.R.C.P. 26(c) or F.R.C.P. 26(c), entry of the following protective order.
- Provide a brief introduction and statement of scope of protective order (see Form, below, for sample language)
- Define the designation of certain material as "Confidential."  See the form, below, for sample langugae.
- Where appropriate/necessary, create a second (or more) tier of confidential information as above, such as "Attorneys' Eyes Only."
- Define general agreement and specific limitations to access of each tier of designated material (see Form).
- Provide rules governing designation of deposition testimony (see Form)
- State that the protections established under this protective order extend to related material (see Form)
- State that any party wishing to disclose, or attach any designated discovery material as part of any pleading shall move to have the material filed under seal.
- State that designated material may still be used at a hearing or at trial (see Form)
- Provide a mechanism for challenging the designation of discovery material (see Form)
- Include non-waiver and inadvertent disclosure rules (see Form)
- State that, regardless of designation, materials in the public domain shall not be deemed protected by this order.
- Provide for the return of discovery material at the conclusion of the action (see Form)
- Address manner and addressees for notice of designation.
- Provide acknowledgement form to be signed by parties receiving designated materials (see Form)
Thoughts & Best Practices:
- While this is a commonly used format, the form and procedures in a protective order should be customized to the particular case and circumstances.  For example, only one tier of confidentiality may be appropriate in some cases, whereas others may require three or more tiers as well as parallel procedures for dealing with separate groups at the same level of confidentiality.
- Consider whether statue provides additional confidentiality requirements, such as HIPAA rules governing disclosure of "Individually Identifiable Health Information" as governed by 45 C.R.F. Section 164.512(e).
- Consider adding a "clawback" provision, especially in cases with extensive production of electronically stored information, that allows either party to retract inadvertent production of privileged information.
Example Form:
- Click Here for Template (Locked Version)
- Click Here for Publicly Editable Version (Please feel free to make improvements to this form, and comment below noting what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
This stipulated protective order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Wednesday, July 07, 2010

Demand Letter (Litigation Checklist)

This demand letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  The demand letter can be one of the most important and effective tools in a litigator's arsenal--it sets the stage for the dispute, often opens negotiations between the parties, and has the potential to resolve the issue early and in expensively.  Unfortunately, this opportunity is often squandered with a poorly thought-out letter.  The following checklist and list of best practices are intended to help litigators better utilize the demand letter:
- Address letter to most appropriate person--consider whether this is the person with most intimate knowledge of situation or person with authority to resolve/settle issue.
- Include header stating that letter is a confidential settlement communication pursuant to C.R.E. 408.
- State that you/this law firm represent your client and the matter in which you have been retained.
- Request that all future communications regarding this matter be directed to you.
- Outline factual situation surrounding issue/dispute.
- Address any previous correspondence or negotiations between the parties, rejecting previous offers if applicable.
- State potential claims that client may assert, including legal and factual support as applicable (see below).
- If contract or applicable statute requires that any specific notifications be made, ensure that these notifications are made and meet all requirements (i.e. requirement to state applicable statute, to send notice by certified mail, etc.).
- State damages, including legal and factual support as applicable (see below).
- Consider preemtively addressing anticipated defenses (see below).
- State demand:  what they must do (i.e. pay money, refrain from action, etc.), what you will do in exchange (i.e. settle all claims), method of acceptance of offer, deadline for acceptance of offer.
- State that this letter does not purport to list each and every [tort][act of default under contract].
- State that client reserves all rights, remedies, and claims against recipient of demand letter and against all others responsible for client's damages.
Thoughts & Best Practices:
- Consider sending demand letter via certified mail, return receipt requested, unless prior dealings with the recipient make this unnecessary.
- Consider including legal and factual support for claims, including potentially list of elements of claim and corresponding factual support or applicable statute, depending on sophistication of party and strength of client's case.  Consider whether convincing opposing party of the strength of your claim will facilitate or hinder a favorable early settlement.
- Consider including legal and factual support for damages.  Particularly when you can reasonably support damages significantly in excess of your demand, or where you can reasonably argue that you will recover significant costs and/or attorneys' fees if litigation proceeds, this may be an effective settlement tactic.  Also consider whether opposing party has already retained an attorney or whether you are attempting to resolve the dispute before they retain an attorney. 
- Consider attaching documentary support where appropriate, but consider whether the information disclosed will also educate the opposing party about any weaknesses in your case.
- Consider whether a firm demand (e.g. "Pay X by Y Date") will hinder swift resolution of issue, and consider whether it would be better, especially in an initial letter or where there is real potential for cure, to simply state "If [recipient] fails to respond appropriately [under its duty or any applicable contract], [client] will evaluate all of its rights and remedies with respect to this matter."
- If litigation has already commenced, consider whether any demand letter should also serve as a statutory offer of settlement.
- Consider the form of the ultimate settlement agreement between the parties when drafting a demand letter.
- Consider whether demands should include litigation hold/preservation of specified evidence in anticipation of litigation, or request to make certain evidence available for inspection.
- Use demand letters for more situations than the total resolution of claims (i.e. to demand the preservation of evidence relevant to a claim).
Example Forms:
- Click Here for Template Demand Letter (Locked)
- Click Here for Publicly Editable Demand Letter (Please feel free to make improvements to this form, and comment below to describe what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
This demand letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Thursday, July 01, 2010

Litigation Knowledge Management Theory

It is my impression that most lawyers and law firms use some form of searchable document system (e.g. iManage) for their work product, and then think that they have "checked the box" for knowledge management. Not even close.

I'm developing the Master Litigation Checklist at this blog both to demonstrate the potential for knowledge management systems in litigation and as my own personal litigation knowledge management system. As I see it, the key elements of an effective litigation knowledge management system (and any knowledge management system) are:
The Checklist
For every task, there is a short list of critical things that must be done. That's what the checklist is for--it should guide you at the outset of a task, and it should be one of the final checks before filing a motion, sending a letter, or attending a hearing. I'm working to develop simple checklists for each of the many tasks that may be required in litigation. It's precisely because litigation has so many different tasks, many of which are performed relatively infrequently, that a checklist is so important. You can easily remember the steps to getting dressed because you do it every day, but when you only perform a task once a year (or less), it is easy to forget something critical if you're relying on your memory from the last time you did it.
Index of Best Practices
The best practice index is the complement to the checklist--these are not things that must be done every time a task is undertaken, but rather a list of ideas, considerations, strategies, etc. that should be considered every time. There are so many best practices that it's frankly impossible to keep them all in mind at all time. Instead, a key function of any litigation knowledge management system is to collect and index them and make sure that the appropriate best practices are readily available for the current task. By indexing best practices along side the checklist for a comprehensive list of legal tasks, the needed thoughts and advice will be readily available. Of course, it's not enough to have a good system for best practice indexing--you also need to have a sufficient list of best practices. More on that in the "Iterative Improvement" requirement, below. Ultimately, an attorney's skill and success is largely a function of the ability to draw on a large and readily applicable list of best practices.
Fusion Methodology
Checklists and lists of best practices are not enough--a good knowledge management system should also include an overarching system for integrating these components into the actual practice of law. I've worked to do that in my Master Litigation Checklist by including checklists, a litigation plan, and best practices for the creation of an "Initial and Iterative Strategic Plan." At once a master to-do list, a process flow diagram, a game plan, and a case calendar, the strategic plan is the document that fuses together the checklists and lists of best practices into a coherent litigation system.
Iterative Improvement
Finally, there is the need for iterative improvement. No system is perfect, and I launched my litigation knowledge management system at an intentionally incomplete stage, because a core function of such a system is to complete itself and then continually improve. This is done by making iterative action part of the system itself--that is, continually review how the former task or case went, changes in the law, developments in the field, etc., and then incorporate that into both checklists and best practices. An effective knowledge management system should place great importance on this kind of iterative improvement. In military strategy, this is known as the OODA-loop (Observe, Orient, Decide, Act), and it's commonly understood that if you can "get inside your opponent's OODA-loop," or innovate and adapt to the changing landscape more quickly, then you'll eventually prevail. In litigation, this means regularly searching publications, blogs, asking fellow attorneys, etc. for potential checklist improvements and additional best practices, as well as conducting an "after action review" of each task and case with an eye toward integrated lessons learned into the litigation knowledge management system. Even the overall structure of that system and the mechanism for iterative improvement are fair game for review.
That's a quick outline of my litigation knowledge management system--you can see the actual product here at my Master Litigation Checklist. What system do you use, and is it working?

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