Great companies consist of two ingredients: PEOPLE and PROCESSES. Without both, you have no chance of having a world-class law firm. Let’s assume you have a dynamite staff who will give their right arm for you—that’s only part of the equation for success.
Documenting the details of your processes is critical to your success. Without documented processes, your staff will be left to figure things out on their own…and you might not like the results. Having a process that runs the same way for every lawsuit is critical to your success.
The 12-Step Litigation Checklist
There are 12 simple steps to moving a new lawsuit from discovery to the desired goal: A TRIAL DATE. The steps are not self-executing—you need to continually train your staff and reinforce and improve the processes. The best way to start is a “Litigation Checklist” that is signed, reviewed and electronically filed in the case management system, as each step of the process is completed. Here’s how we roll:
#1: “Pre-Litigation Checklist”
Begin by creating a checklist for every new personal injury case. Your “Pre-Litigation” checklist should include:
- All medical records (pre and post incident),
- Employment records for the last ten years,
- Tax returns and W-2 statements for the last 5 years,
- Criminal background search,
- Social medical search (i.e., Facebook, Instagram) for damaging content,
- Photographs and video of injured person or decedent, and
- Names and addresses of lay witnesses re: liability and damages.
Your secretary should check every box on the Pre-Litigation Checklist, sign it and submit it for your review and signature before every new lawsuit is filed.
When This Should be Done: Your secretary should prepare the “Pre-Litigation” checklist as soon as you accept the case for litigation.
Purpose of Doing This: Once you receive the defendants’ answers, you will already have all of the records you need to serve a complete set of medical and employment records upon defense counsel.
#2: Serve Medical Records and Release Authorizations
You should serve a complete set of medical records and release authorization as soon as they defendants’ lawyers serve an answer.
Dear Mr. Defense Lawyer:
In order to expedite discovery, enclosed please find a complete set of the plaintiff’s medical records and release authorizations in the above-referenced action.
If there are any additional medical, or non-medical, records that you need, please notify us as soon as possible and we will ensure that you have all of the records that are subject to disclosure in the present lawsuit.
Your cooperation will ensure that we are able to meet the deadlines that will be scheduled for discovery at the Court’s preliminary scheduling conference.
Very truly yours,
When This Should Be Done: As soon as you receive the initial set of the defendants’ discovery demands, you should serve a complete set of release authorizations and medical records upon defense counsel. Do not wait to serve the release authorizations and medical records until the plaintiff’s discovery responses are ready.
Purpose of Doing This: The service of medical records and release authorizations upon defense counsel will get the case moving while you prepare the plaintiff’s discovery responses, bill of particulars and discovery demands.
By serving the medical records and release authorizations as soon as you receive the defendants’ discovery demands, you remove a common excuse used by defense counsel for adjourning depositions, namely, “We haven’t had enough time to get the medical records.”
#3: “Deposition” Letter
The “Deposition” letter asks defendants’ lawyers to provide alternative dates for the depositions of the parties and non-party witnesses.
Dear Mr. Defense Lawyer:
In an effort to establish a mutually-agreeable timetable for the completion of all disclosure proceedings in this case, please provide the undersigned, within twenty (20) days of the date of this letter, with five (5) or more specific dates between now and [enter a date approximately 3 months from the date of the defendant’s deposition] when your clients will be available to give their depositions upon oral examination in the above-referenced action.
In addition to your clients, please provide the same information regarding the following individuals, who I believe are current employees of your clients: [insert names of employees].
Upon receipt of your response to this request, we will proceed to schedule the depositions of such individuals.
If we do not receive a response to this request, we will proceed to schedule the depositions of such individuals.
If we do not receive a response to our request within twenty (20) days, we will select deposition dates that are convenient for the plaintiffs and will request that the Court enter an Order directing that the depositions be conducted on those dates.
We look forward to your anticipated cooperation in setting mutually-agreeable deposition dates that are convenient for all parties and their counsel.
Very truly yours,
When This Should Be Done: You should fax, email or mail this letter to defense counsel as soon as the preliminary scheduling conference has been scheduled.
Purpose of Doing This: The biggest obstacle posed by defense counsel is scheduling the depositions. More often than not, defense counsel will have their secretary tell you that they refuse to even schedule the defendants’ depositions until after the plaintiffs’ depositions have been completed. For this reason, you should always get alternative dates for depositions from defense counsel before the preliminary scheduling conference.
#4: “Discovery” Letter
The “Discovery” letter asks defendants’ lawyers whether they claim there is any discovery that is owed by the plaintiff before the preliminary scheduling conference.
Dear Mr. Defense Lawyer:
This letter is sent to you in a good faith attempt to ensure that the plaintiff satisfied all of your discovery demands prior to the preliminary Court conference in the above-referenced action.
We served upon you the plaintiff’s medical records as well as the plaintiff’s discovery responses and verified bill of particulars. Additionally, you were provided with release authorizations for the plaintiff’s medical records upon our receipt of the defendant’s answer.
We believe that you possess all of the records and discovery responses that were sought in the defendants’ discovery demands. However, if you believe that there are any outstanding discovery responses that are owed by the plaintiff or medical records that have not been provided, kindly respond in writing or via email by specifying the discovery responses and/or medical records that you believe are owed by the plaintiff.
If you do not respond to this letter within ten (10) business days of your receipt of the letter, we will assume that there are no outstanding discovery demands or medical records owed by the plaintiff and you are ready to schedule depositions.
Unless you respond to this letter, we will assume that you will not raise any issues regarding outstanding discovery at the preliminary conference.
Very truly yours,
When This Should Be Done: The “Discovery” letter should be mailed to defense counsel as soon as we are notified of the date for the preliminary court conference.
Purpose of Doing This: You need to know whether there are any outstanding discovery issues before the preliminary scheduling conference. This will allow us to be prepared address any discovery issues at the preliminary conference or we can hand-deliver the requested discovery responses at the preliminary scheduling conference.
#5: “Original Chart Review” Letter
The “Original Chart Review” letter asks defendants’ lawyers to provide alternative dates for the inspection and copying of the original medical records.
Dear Mr. Defense Lawyer:
Please contact us to schedule a mutually convenient date for the inspection of the plaintiff’s original medical records at [insert name of hospital or physician’s medical practice] in the above-referenced action.
Section 18(2)(a) of New York’s Public Health Law states that upon the written request of any individual concerning whom patient information is maintained or possessed by a health care provider, the health care provider must provide an opportunity, within ten (10) days, for that individual to inspect any patient information concerning or relating to examination or treatment of such individual in the possession of the health care provider.
If you have any objection to the inspection of the plaintiff’s original medical records, please contact us within ten (10) days of your receipt of this letter.
Very truly yours,
When This Should Be Done: In a preliminary scheduling order, you should insist upon a specific date for the hospital or physician to comply with your demand to produce the original medical records for inspection, and that the original records are to be produced at least 2 weeks before any depositions are conducted.
Purpose of Doing This: The worst thing in the world is to be confronted with medical records at a deposition that you’ve never seen before. The only way to make sure this does not happen is to insist that the defense lawyer provide you with an opportunity to inspect the original medical records.
#6: “Discovery Owed” Letter
The “Discovery Owed” letter reminds defendants’ counsel that there is outstanding discovery owed to the plaintiff.
Dear Mr. Defense Lawyer:
On [insert date], we served the plaintiff’s combined discovery demands and demand for a verified bill of particulars upon you in the above-referenced action. To date, we have not received your response to the plaintiff’s combined discovery demands and demand for a verified bill of particulars and your time to object has expired, pursuant to CPLR section 3122(a).
In order to avoid a motion to compel discovery, we ask that you provide us with the defendant’s response to the plaintiff’s combined discovery demands and demand for a verified bill of particulars within ten (10) business days of your receipt of this letter. We will not accept defendant’s discovery responses stating that responsive documents will be provided at a later date.
Very truly yours,
When This Should Be Done: This letter should be mailed to the defendants’ lawyers on the 35th day after the plaintiff’s combined discovery demands have been served upon defendants’ lawyers.
Purpose of Doing This: If we do not possess the defendants’ discovery responses before depositions, I will not be able to prepare for the depositions.
#7: Schedule Meeting with Client to Prepare for EBT
You should call our client to schedule a face-to-face meeting at her home, or our office (client’s choice), in order to prepare for her deposition.
When This Should Be Done: You should call our client to schedule this meeting as soon as a date for her deposition has been confirmed with defendant’s lawyers. The meeting with our client should be held seven (7) days before her deposition.
Once the meeting has been scheduled with our client, you should send an email to our client to confirm the meeting and call her at least once day before the meeting as a reminder.
Purpose of Doing This: I need to meet with our client at least one week before her deposition in order to give us enough time to prepare for potential “danger points”, i.e., criminal convictions, substance abuse, etc.
#8: Schedule Meeting with Expert Witness
A face-to-face meeting with our medical expert/physician is crucial for the preparation of the deposition of the “target” defendant.
When This Should Be Done: Once you have a confirmed date for the deposition of the “target” defendant (typically the first named defendant in the caption), you should contact our medical expert/physician to schedule a meeting for me at least seven (7) days before the deposition.
Purpose of Doing This: This meeting will help me prepare for the “target” defendant’s deposition, so the right questions are asked.
#9: Schedule Stenographer and Videographer for EBT
We always videotape the depositions of the defendants and non-party witnesses.
When This Should Be Done: Once you have a confirmed date for the defendants’ depositions, you should call a stenographer and videographer to confirm their availability for the deposition.
Purpose of Doing This: We videotape all adverse and non-party depositions, as this shows the witnesses’ body language, facial mannerisms, pauses and changes in voice inflection which otherwise would not be captured.
#10: “Original Chart to Deposition” Letter
The “Original Chart to Deposition” letter reminds the defendants’ lawyers to bring the original medical records to the defendants’ depositions.
Dear Mr. Defense Lawyer:
We ask that you bring the original medical records to the defendants’ deposition on [insert date] in the above-referenced action.
Please confirm that the original medical records will be present at the deposition on [insert date].
Very truly yours,
When This Should Be Done: At least one week before the defendants’ deposition, you should call defendants’ lawyer to confirm that she will bring the original medical records to the deposition. You should confirm by email and remind defendants’ lawyer one day before the deposition.
Purpose of Doing This: I cannot conduct an effective deposition of the defendants without the original medical records—this just makes my job much easier.
#11: “Additional Discovery” Letter
The “Additional Discovery” letter asks defendants’ lawyers to advise us whether there is any “additional discovery” that they need before we file the note of issue.
Dear Mr. Defense Lawyer:
In the plaintiff’s discovery response, we identified several non-party witnesses, [insert names of witnesses], in the above-referenced action. Please advise us in writing whether you wish to conduct depositions of any of the non-party witnesses within ten (10) business days of your receipt of this letter.
If you do not respond to this letter, we will assume that you do not wish to conduct depositions of the non-party witnesses and we will proceed based upon that assumption with the remainder of discovery.
Very truly yours,
When This Should Be Done: This letter should be served within five (5) days after the plaintiff’s deposition. Following the plaintiff’s deposition, the defense lawyers should have enough information to decide whether they want to depose the non-party witnesses.
Purpose of Doing This: It is very common that the defense lawyers will object to the filing of the note of issue, and scheduling of a trial date, by claiming that they need extra time to depose non-party witnesses. You need to anticipate this stall tactic by asking defendants’ lawyers whether they want to depose non-party witnesses after the plaintiff’s deposition.
#12: “Materials to Expert” Letter
While it makes sense to orally tell an expert what documents she might want to focus on, it is never appropriate to send her anything short of ALL the available documents that are relevant to her testimony.
The expert witness should receive: the complete underlying file, including: all pleadings and discovery in the case;
- Deposition Transcripts of all persons in the case,
- Medical Records,
- Expert responses,
- DME reports, and
- Bills of Particulars.
You should keep an itemized list of what was sent to the expert, so we can make certain that any expert who may be asked to testify on any of the same or related issues will receive identical materials.
When This Should Be Done: The complete underlying file records should be sent to the expert witness as soon as the expert has been retained.
Purpose of Doing This: If you do not send all of the documents relevant to the expert’s testimony, the expert will be subject to a devastating cross examination in which defense counsel will make it appear that the plaintiff’s attorney is using the expert as a puppet to espouse the theories developed by the plaintiff’s attorney and then sent the material to support that theory.
The Litigation Checklist
As each task is completed, check the appropriate box and bring the Litigation Checklist to our weekly Goal Meetings for review and signing by each team member.
#1: Pre-Litigation Checklist: ____
#2: “Records to Defense” Letter: ____
#3: “Deposition” Letter: ____
#4: “Discovery” Letter: ____
#5: “Original Chart Review” Letter: ____
#6: “Discovery Owed” Letter: ____
#7: Schedule Meeting with Client to Prepare for EBT: ____
#8: Schedule Meeting with Expert Witness: ____
#9: Schedule Stenographer and Videographer for EBT: ____
#10: “Original Chart to Deposition” Letter: ____
#11: “Additional Discovery” Letter: ____
#12: “Materials to Expert” Letter: ____
Weekly Training to Reinforce Policies
Spend 30 minutes at a specified time every week (a/k/a “Training Day”) reviewing, reinforcing and improving the policies with your team. Document changes to the policies at each training meeting and hold your staff accountable. Policies are great, but without continual reinforcement, improvement and accountability, they are worthless.
The Ultimate Goal: 18 Months to Trial
Getting the case to trial is your single most important goal for every case because your client will not get the result ($) she deserves until the trial. A victory for your client is getting the case to trial within 18 months from the filing of the lawsuit.
photo credit: AJC1 Feedback checklist via photopin (license)
