Paving the road to settlement; preparing a good discovery plan early may help win a case before trial.

Preparing a good discovery plan early may help win a case before trial.

A variety of weapons in a trial lawyer's arsenal can help clinch a case before trial. Assessing the economic risk of trial is vital, as is creating a defense expectation that settlement is unlikely. Putting together a good discovery plan from the get-go is also important, because doing so is cost-effective and helps ensure better results. The following are tips for winning a case before trial.

Hire full-time investigators to thoroughly investigate a case before bringing suit. An investigation initiated at the beginning of a case places counsel in a far stronger position from the outset.

Each case has issues involving liability, causation, damages, and collectibility. At the beginning of each case, send investigators into the field to do the following:

* Obtain reports about the incident.

* Identify witnesses and obtain written

* statements from them.

* Take extensive photographs at the scene of the incident, particularly of any equipment involved.

* Obtain photos of the incident taken by others.

* Videotape the victims when injuries are serious.

* Send letters to people who possess evidentiary equipment, cars, or other materials. Direct the possessors to keep the materials and not to alter them in any way.

* Check with local television news stations to see if any outtakes of the incident exist. Many stations have a great deal of this footage but typically keep it only a few weeks before destroying it.

If the tortfeasor was acting on the behalf of another, the attorney will have to consider agency theories like vicarious liability and scope of employment. Many attorneys frequently overlook this consideration during the investigation stage and as a result pay for it later.

For example, defendant corporations may attempt to defeat agency theories but are unable to do so if the attorney's investigative work-up is thorough and offers factually intensive proof of an agency relationship.

Work closely with investigators to identify factors that could bring a defendant's actions within the scope of employment. Many cases far into litigation will not resolve because a seriously injured plaintiff is faced with a culpable but penurious defendant. Obtaining statements on scope of employment before suit is filed is critical be cause this is one of the major evidentiary issues that may arise later in discovery.

Keeping defendants in the case

Identify all potential defendants early in the case. Doing so is essential, particularly in jurisdictions where joint and several liability no longer exist. In fact, the absence of a critical defendant can ensure that you will not clinch the case before trial. If all the defendants are not at the table, they cannot, of course, participate in settlement negotiations.

Some attorneys will enter into partial settlement--with covenants not to execute --to keep the other defendants in trial. With covenants not to execute, there is always a risk that the settlement will be disclosed and the settling defendant's attorney will not try the case in a truly adversarial setting. Worse, a defendant missing from trial allows the remaining defendants to point to the "empty chair" in the courtroom as the truly responsible party. Many jurors, given the opportunity, find it easier to blame someone who is not present and whom they do not have to confront.

If the defendants know that they will be forced to point the finger of responsibility at each other, they will be far more interested in attempting to resolve the case before trial than if they know they can point to an empty chair at trial. Granted, in some cases the empty chair argument cannot be avoided due to economic and strategic considerations. This increases the probability of going to trial. As a general rule, keep all defendants in the litigation so that there is a truly adversarial atmosphere among the defendants at trial.

Forcing defendants to point fingers

Have the defendants indict themselves. To accomplish this, serve interrogatories on all defendants, pointedly asking each of them what facts place responsibility on the other defendants.

In business fraud cases, defendants will sometimes collude by putting up a united front and refusing to blame one another. Do not allow this to happen. Assess the most damaging facts against each defendant, and use discovery to force an acknowledgment of the other defendants' culpability. An adversarial environment is key to increasing the pressure among defendants and resolving the case.

Another way to put pressure on a defendant-particularly a defendant company or agency--is to establish that a defendant has violated internal policies and procedures. This places the defendant in an extremely vulnerable position.

For example, in a case where police shot someone without justification, try to establish that the officer violated department procedures concerning the proper use of deadly force.

To do this, notice the deposition of the police department employee who is most knowledgeable about the internal standards governing the use of deadly force.

To take the pressure up another notch, ask to see a copy of the internal policy or procedures manuals and pertinent memoranda. These documents are often so incriminating that defendants are forced to admit their culpability. This strategy is particularly effective when pursuing a corporate or government entity.

Outwitting the experts

Under California law, in a section similar to Federal Rule of Criminal Procedure 26, a corporation or government entity can be compelled to identify and produce the person from within its ranks who is the best expert in any given area. This law is one of the most powerful discovery tools because merely noticing the deposition forces the defendant corporation or government entity to go through the entire process necessary to make the determination.

When taking the defense expert's deposition, list in a subpoena duces tecum all documents to be produced at the deposition. Then ask the deponent to identify the documents requested and to explain the steps taken to ensure that all of them were produced.

Almost invariably, defendants fail to thoroughly research their files. The subpoena helps ensure that all documents were produced and may also help impeach the defendant if it is later discovered that employees were told to destroy documents.

Obtaining the deposition of a "person most knowledgeable" allows establishing the deponent as the ultimate authority within the company and then eliciting admissions that are binding on the company.

If you destroy the integrity of a defense expert or the basis of an expert's opinion, defense counsel will usually begin to think about a settlement. However, getting to this point requires a great deal of work. Before taking a defense expert's deposition, review the jury instructions the judge will read when instructing the panel on how to evaluate an expert.

With most jury instructions, the basis of the expert's opinion is critical, as is comparing competing experts. If you have damaged the expert's credibility either way at deposition, defense counsel will feel increased pressure to resolve the case.

To achieve this, before deposing the experts, obtain copies of any depositions they have given in previous cases. Doing so is economical because this helps you avoid querying areas already covered, which shortens deposition time later on. Previous depositions can also be a basis for impeachment.

Depositions also provide insight as to how an expert deponent testifies. Reading deposition transcripts will help determine whether the deponent is evasive, arrogant, or nonresponsive. Once you know this, tailoring the deposition to achieve a favorable result becomes easier.

Sometimes deposing an expert accomplishes little. Experts can be difficult and evasive in their answers, withholding what they really want to say for trial. In those situations, videotape is often the answer. Videotape will record experts' initial reactions and can capture their evasive responses. These can be shown to a jury, should the case proceed that far.

Another benefit of using video at deposition is that defendant's trial counsel often does not appear. This puts plaintiff counsel at a distinct advantage when cross-examining experts because the answers are unrehearsed, which can be devastating to the defense at trial.

Experts who are confronted with video are essentially forced to respond because the videotape cannot be erased. Their responses --or lack of them--can severely undermine the defense case.

Using videotape effectively at deposition requires extensive preparation. Know the facts, and learn as much as possible about the experts, including how they have formulated their opinions. One way to use video effectively is to show enlarged photographs to experts at deposition. This can elicit gut-level responses, and videotape preserves them for trial.

States have different priorities for scheduling discovery. In California, there is no rule governing who should proceed. In state court, this means that plaintiffs are in a strong position because they can initiate discovery 20 days after the complaint was served and can notice depositions shortly thereafter.

Defense counsel and their carriers are going to notice if plaintiffs are conducting discovery aggressively, so avoid arousing their suspicions. This can best be accomplished through proper investigation and through non-formal discovery that avoids involvement of opposing parties. It is a race to disclosure. Make the defendants disclose first. Establishing a reputation of being aggressive and thorough in discovery increases the chances of resolving the case before trial. Top-notch trial attorneys use a full court press before trial to force a settlement.

Conducting background investigations

Thoroughly investigate the plaintiff's background. Many lawyers have prepared cases all the way to trial only to watch helplessly as an undiscovered but damaging aspect of the plaintiff's past surfaced and completely destroyed or significantly reduced the value of the case.

Clinching the case before trial involves getting the desired result for the plaintiff and not being forced to settle on unfavorable terms. To achieve this, obtain all prior medical histories, employment histories, and applications for health or life insurance before the plaintiff is deposed. This helps prevent the plaintiff from making contradictory statements that can seriously undermine the case. Rest assured opposing counsel will get those forms.

Each case has its minefields. When preparing for trial, view the process as a walk across a minefield. The goal is to identify each mine, cross the field safely, and reach victory. Assume the defense will discover these potential problems eventually, so try to beat them to it. Identifying problems early and formulating effective solutions often avoids a negative impact and undermines a potential defense strategy.

One of the most common questions a settlement judge or mediator poses to defense counsel is, "What type of witness does the plaintiff make?" The question is important, because how a jury feels about the plaintiff often has a dramatic impact on the verdict and the defense evaluation.

After taking a deposition from the plaintiff, it is common practice among defense attorneys to write a letter to their insurance carrier assessing what type of witness the plaintiff makes. For this reason, the importance of preparing the plaintiff properly for deposition cannot be overstated.

Some attorneys meet with the client an hour or so before deposition. This may not be enough time. Given the enormous impact that a plaintiff's deposition can have on case resolution, it is important to take the time to fully prepare your client to ensure a positive outcome.

I usually invite a client to come in a week before the deposition date and watch a 45minute videotape explaining the basic rules of a deposition. After the video's conclusion is an ideal time to meet with the client to discuss potential problem areas the firm foresees at deposition. Go over the client's personal history, and review medical and employment histories to identify any other problem areas. Ask the client if he or she has made any previous statements about the case to anyone.

If there are missing records or statements, postpone the deposition until they can be obtained so the client can review them before being deposed. Once a client has testified under oath, the testimony is impeachable, and any written changes following the deposition are subject to cross-examination at trial. Defense counsel will not be inclined to resolve a case favorably if the plaintiff makes contradictory statements at deposition.

Handling objections

Conducting an effective deposition takes work. When preparing a case for trial, plaintiff counsel may occasionally run into overly aggressive Rambo litigators who try to interfere with the deposition to make it ineffective for use during trial. In most jurisdictions, however, the breadth of discovery is sufficiently broad to allow questions that may lead to the discovery of potentially relevant information. In addition, most allowable objections go to the form of the question only. For these reasons, make sure questions are properly asked and make sure they are answered.

If opposing counsel states a speaking objection on the record, ignore it and tell the deponent to answer the question. Avoid engaging defense counsel verbally on the record. If you do, the defense has succeeded at diverting your attention away from the issue at hand.

Counsel defending an objection on behalf of a party witness may instruct the witness not to answer. When that happens, bring a motion to compel. Otherwise, push the deponent to answer regardless of what defense counsel says.

Generally, during depositions involving experienced trial lawyers, few objections are made. The goal is to get to the core points quickly. The most effective depositions are short and focused.

Placing defendants at risk

Close to trial, a number of techniques can increase the pressure on opposing counsel to resolve the case. In some jurisdictions, plaintiff counsel may propose to have a judgment placed against the defense for a specific amount. If counsel refuses to pay and plaintiff counsel prevails at trial in excess of the judgment offer, the defense must pay court costs plus interest.

This type of procedural device can be effective, but plaintiffs' counsel should realistically evaluate the judgment offer before extending it, since court costs and interest are awarded only if the plaintiff prevails beyond the amount originally offered.

Another technique that varies by jurisdiction is to place the insured in a conflicting position with the insurance carrier. For example, if a limited insurance policy exists, demand the entire policy limits. After a reasonable time, withdraw the demand. Under California law, if the carrier refuses to settle for the policy limits after a reasonable amount of time and places the insured at risk, the carrier can be found liable for the entire verdict amount. In a well-prepared case, this kind of pressure significantly enhances the chance of a settlement often

Finding the right mediator

Select a good mediator. Each case is unique and demands a different type. It is good practice to select one who has credibility with the defense and then present the case to him or her using a settlement or video brochure. If the brochure is effective in demonstrating the value of the plaintiff's case, half the battle is won. The mediator will then inform the insurance carrier of his or her evaluations--which carry great weight.

Often, plaintiff lawyers will call other counsel asking for the names of plaintiff oriented mediators. It is critical to find someone to mediate who has a fair and impartial record on both sides, because doing so increases the chances of resolution. But it is also true that there are times when the goal is to select a mediator who has a greater sensitivity toward an injured victim, particularly where the plaintiff has difficulty properly assessing the value of a case. A good mediator will develop a rapport with a plaintiff that encourages mutual trust. When case evaluations are made, the plaintiff is often more accepting of a reasonable settlement offer.

Using videotape

As previously discussed, video can be a powerful deposition tool. When used to produce a settlement brochure, it can influence a judge, mediator, defense attorney, or insurance adjuster regarding the value of your case.

Increasingly, video is also becoming more economical. When attorneys first began to use it for settlement brochures, costs typically exceeded $10,000. Today, with a lot of hard work and planning, a good video presentation can be put together for much less money.

A properly prepared settlement video shows you are willing to make the extra effort and spend a bit more money to effectively prepare a case. Making a video also allows you to concisely and dramatically demonstrate a case in a way that is most favorable to the plaintiff.

For example, a typical video will present the liability and damages issues of a case while allowing you to control the information that adjusters and defense counsel will see. This allows emphasizing the strongest aspects of a case.

Videos also serve to make the plaintiff human to defense counsel. Family photos and videos, as well as pictures of the incident, help establish the plaintiff as a three-dimensional person in defense counsel's mind. A video can also be an effective tool in forcing the other side to recognize the negative exposure a trial could bring.

Ensuring client satisfaction

Clinching a case before trial is not always a win-win situation. For example, plaintiff counsel may consider the result outstanding, but the client may still be dissatisfied and unhappy. More often than not, when this occurs, counsel has failed to spend the necessary time with the client, explaining the issues and difficulties involved in the case. Effectively communicating about the risks and potential outcomes helps clients to better understand and realistically assess the case before trial.

Representing a client before a court of law is a serious matter. A client is best served and representation is most satisfying when plaintiff counsel believes in a client's case. Clinching a result before trial requires acting in the best tradition of the adversarial process by being aggressive, methodical, and thorough.

David S. Casey Jr. practices law in San Diego, California.