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
Disclosures:
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:
Name/address/SSN
Marital history
Family relationships
Education
Medical history
Employment
Criminal record
Prior law suits
Prior injuries/medical history
Operative Facts:
Dates/times/places
Identity of actors/participants
Observations
Weather conditions
Eyewitnesses?
Admissions/statements
Conversations/meetings
Other factors to consider:
Other entities investigating?
Insurance?
Government?
Private I’s?
Other topics:
Explain litigation process
Manage potential clients expectations?
Discuss their goals
Litigation strategy
Goals/objectives
Budgeting
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
Shoppers
“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
Internet
Social media
Public records
Dockets
Insurance Group database (claim search database)
Experts/consultants
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:
Necessity
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
