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Civil Litigation Strategy
Rutgers University, Newark School of Law
Levin, Ronald

Prof. Kevin Gardner

Civil Litigation Strategies and Practice

Fall, 2016

Rutgers School of Law-Newark

Prospective client interviews

Minimize distractions

No checking phone, email etc.
Setting should be comfortable


Need for candor

Are there factors that are going to increase the prospective clients likelihood to hold back?

Accompanied by spouse? Friend?

Make sure prospective client understands why candor is so important and that they understand the attorney-client privilege

Beware of privilege issues

Is there an interpreter?
Lay? Appointed? Attorney can make a friend, neighbor, etc. their agent and thus preserve the attorney-client privilege
Privilege is only between the client-attorney (and attorney’s agents- be mindful)

Interview Techniques

Open ended questions

Let them talk

Don’t interrupt or lead
Get ALL the facts

Use check lists
Uniform interrogatories

Follow up; ask the hard questions

Challenge/test the story
Assess credibility

If you don’t believe them, neither will the jury

Maintain a record

But don’t overdo it: don’t spend the entire interview writing

Information to Obtain:

Basic Information:

Marital history
Family relationships
Medical history
Criminal record
Prior law suits
Prior injuries/medical history

Operative Facts:

Identity of actors/participants
Weather conditions

Other factors to consider:

Other entities investigating?
Private I’s?

Other topics:

Explain litigation process

Manage potential clients expectations?

Discuss their goals

Litigation strategy

Don’t be shy and discuss the need for a retainer
Can be issued every 30 days (or other period as agreed)

Red Flags:

Angry Man
Numerous prior attorneys
Denigration of prior counsel
“This is a sure winner”
“Money is No Object”
Resisting a retainer
Control freaks
Bomb throwers (crazy people generally)
Bouquet of wrongdoing

Independent Evaluation Methods

Social media
Public records
Insurance Group database (claim search database)

Threshold Evaluation Issues

Statute of Limitations

Discovery Rule

Not always applicable; equitable rule

Tolling Agreements

Parties can agree to their own SoL; may preserve the period for longer (or shorter?)

of confidence in client
Lack of client resources

Declination Letters:

Avoid unequivocal statements
“Need give no reason at all” Procanik by Procanik v. Cillo
Transmittal/Proof of Receipt

Taking the Case

Once you accept, you are in for the duration. Except:

Mandatory withdrawal

Representation will violate law or R.P.C.
Impairment of lawyers physical or mental ability
Lawyer is discharged

Permissive withdrawal

No Pay: Representation will result in unreasonable financial burden on lawyer or has been rendered unreasonably difficult by the client
Client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has received reasonable warning that the lawyer will withdraw if the obligation isn’t fulfilled
Possible fraud: Client persists in a course of action involving the lawyers services the lawyer reasonably believes to be fraudulent
Client insists on pursuing an objective the lawyer considers repugnant or imprudent
Client used lawyers services to perpetrate a crime or fraud
Other good cause