Evolving Strategy Meets Complex Systems Analysis
Want to contribute to the Litigation Checklist? This is an open-source project: any attorney (or law student) who would like to contribute or update an entry, connect with me on LinkedIn and you will receive full attribution for your entry by name, firm, and follow (or no-follow if you prefer) hyperlink to your website.
The goal of this Checklist is to create a resource, brainstorming tool, and checklist/decision tree for building a comprehensive litigation plan for any situation. We strongly believe that every litigation plan must be dynamic -- and, specifically, that it should combine scale-free spiral development approach to both plan development, plan evolution, development of systems and best practices for each sub-component, as well as immediate, mid-range, and plan end feedback cycles, something that embodies Kaizen while understanding that occasional, more aggressive changes are necessary. This system needs to be systematically updated, and ultimately largely automated (both through systemic automation, document assembly, and automatic/machine learning to compare to the entire PACER database and to incorporate every legal opinion as its published.
While this Checklist is framed around the Federal Rules of Civil Procedure, much of it is easily applied to analogous state rules. Its overarching risk-management, prevention, positioning, and feedback principles are universal - more than a static checklist, it is intended as a brainstorming tool. The goal of the articles on this website will be to gradually link an article to every bullet point below, and then to expand on and continually update this list to create a comprehensive knowledge management system for business litigation. The scope and breadth of potential actions and components in complex civil litigation is endless - the goal here is to provide a detailed (though necessarily incomplete) framework for planning and strategizing the prosecution or defense of a civil action.
1. Listing and Elements of Claims: why are we listing the types of claims and their elements first? It's foundational--and until you understand the claims you can get from a set of "elements" uncovered in interviews, investigation, and document review, it's not possible to properly conclude the investigatory phase; similarly, until you understand what elements are the keys to every claim, it's impossible to properly plan or execute discovery.
A. Common Law Claims:
Intentional Interference with Prospective Business Relationship
Premises Liability (largely subsumed into Colorado Premises Liability Act, C.R.S. 13- 21-115, addressed in statutory claims below)
Product Liability (and a link to Jordan Lipp's Book)
Professional Liability
Trespass to Land
Trespass to Chattels
Replevin
False Imprisonment or Arrest
Intentional Infliction of Emotional Distress
Negligent Infliction of Emotional Distress
Alienation of Affection
2. Duty of Care
3. Duty of Candor
4. Duty of Loyalty
5. Duties owed by Control Group to Minority Owners
Breach of Confidence
Invasion of Privacy
1. Libel vs. Slander
2. Per Se vs. Pro Quod
3. Against Public Persons or Matters of Public Interest
Misappropriation of Likeness
Hazardous Activity
Embezzlement
B. Claims in Equity:
Injunction
Rescission
Specific Performance
Accounting
Rectification
Estoppel
Lien
Disgorgement/Equitable Tracing
C. Statutory Civil Claims
State Corporations and LLC Act Claims
State Consumer Protection Acts
Securities Fraud/Securities Act/Exchange Act
RICO/State Analogue
Statutory Misappropriation of Trade Secrets
Lanham Act (Trade Secrets/Commercial Defamation)
Sherman/Clayton Acts - Antitrust (internationally "Competition Law")
Stored Communications Act
Digital Millennium Copyright Act
Torture Victims Protection Reauthorization Act (TVPRA)
Statutory Insurance Bad Faith Claims
Statutory Premises Liability Claims:
2. To a Licensee
3. To an Invitee
4. To a Child (Attractive Nuisance)
5. Injury Off-Premises
Uniform Fraudulent Transfer Act Claims
Fair Labor Standards Act
D. Criminal/Civil Interface
Ability to Plead the Fifth Amendment in Civil Claim (and its ramification)
Ethical and legal considerations in simultaneously threatening criminal reporting and civil action
2. Prevention: The key to prevention of legal risks is understanding what shape and form they may take. Accordingly, an understanding of the potential claims that may be brought in any given situation and their elements (outlined above) permits mitigation of risk by ensuring that circumstances and a client's actions do not give rise to a valid claim by removing one or more element:
Risk Evaluation (Reference Claims Above)
Risk Mitigation (Reference Claims, Above and Positioning, Below)
Incorporate Feedback (below) from prior experiences
3. Preservation: If evidence is required to prove or defend a lawsuit, ensuring its preservation - and therefore availability for use at trial - is critical.
Document Retention Policies
Litigation Hold Letter (Internal)
Litigation Hold Letter (External)
TRO to Prevent Access to Electronic Data Until Mirror/Backup Created
Forensic Imaging
Preservation Depositions
Anton Piller Order & Civil Search Orders: International Coordination
4. Investigation, Analysis & Development of Litigation Plan (scale-free spiral development): When litigation is necessary (or unavoidable), a rapid and thorough investigation of the situation, including identifying and preserving (above) potentially useful (and harmful) evidence, is essential to the appropriate assessment of the case, and the optimal development of a litigation plan.
Initial Interviews (Client)
Initial Interviews (Third-Party)
Initial Document Review
Initial Theory of the Case Development
Initial Damages Evaluation
Initial Collectibility Evaluation
Initial Additional Investigation
Supplemental Investigation/Collection
Adversary Trash Collection
Recorded Phone Calls
Private Investigators
Surveillance
Document Reconstruction
Document Collection
Writ of Attachment
Preliminary Analysis (Identify Claims) (Identify Elements) (Identify Damages)(Identify Collectibility)(Identify Theory of the Case) = Preliminary Plan
Execute Plan
Re-assess and evolve plan (OODA-Loop) based on results of discovery from both sides, other actions from both sides CONTINUOUSLY
Also re-assess and evolve the specific checklist/best practice/system for each sub-component of the Plan
At conclusion of the Plan, re-assess the entire plan-development process as a meta-spiral development phase
5. Positioning: Prior to the formal filing and service of a lawsuit, there can be a great deal of jockeying for position in an effort (often by all sides) to improve their posture entering the formal court process.
Identify Claims and Build Evidence Supporting/Refuting Claim/Defenses
Set-Up Letters
Demand Letters
Rule 11 and Safe-Harbor Letters
Communication & Correspondence with Adverse Parties Generally
Limit Evidence Availability vs. Destruction of Evidence
Limit Witness Cooperation vs. Witness Tampering
Insurance
Arbitration Requirements
Mareva Injunctions: International Coordination
Attachment Order
Preemptive Asset Freeze
Bankruptcy
Working with Administrative Agencies and Law Enforcement
5th Amendment Application in Civil Cases
Fee-Shifting and Prevailing Party Clauses
Waivers & Limitations of Liability
Limitations of Types of Damages
Contracts and the Implied Covenant of Good Faith & Fait Dealing
Contracts and Unconscionability
Contracts and Illegality
Contracts Against Public Policy
Adhesion Contracts
No Oral Modifications Clauses
Liquidated Damages and Penalties
Statute of Limitations
Identifying the applicable Statute of Limitations
Contractual Shortening of the Statute of Limitations
Discovery Rule
Equitable Tolling
Laches for Equitable Claims
Tolling Agreements
Clickwrap & Browserwrap
Contractual Definitions of Duties
Limited Liability Entities
Offshore Blockers
Secrecy v Confidentiality
Family Corporations and Asset Protection Trusts
Estates, Probate, and Termination of Liability
Forum Selection Clauses
Motion for Appointment of a Receiver
6. Pleadings & Parties: The institution of the formal court proceeding, pleadings, and parties to the action.
Pseudonym Filing as Jane Roe/John Doe
When to add claims against "Does 1-10"
Estates as Parties
Re-opening Closed Estates
TRO
Preliminary Injunction
Permanent Injunctive Relief
Notice or other Pre-Complaint Requirements
Complaint
Jury Demand (Rules 38 & 39)
Counterclaims
Cross Claims
Third-Party Complaint
Amending Complaints under Rule 15(a)
Amending Answers
Supplemental Pleadings under Rule 15(c)
Joinder
Interpleader
Class Actions
Intervention
Derivative Claims
Substitution of Parties
Plaintiff Class Actions
Plaintiff & Defense Class Action
Collective Actions (e.g. FLSA)
7. Service
Service of Process
Acceptance & Waiver of Service
Motion for Substituted Service
International Service
Proving Service
Time Limit for Service
Serving Governments
Jurisdiction over Real Property or Assets
Service under Rule 5(c)
8. Scheduling
Scheduling Order
Scheduling Conference
Scheduling Cases for Trial (Rule 40)
Motion to Modify Scheduling Order
Pre-Trial or Trial Readiness Conference
Pre-Trial Order
Consolidating or Bifurcating Trials (Rule 42)
MDL
9. Discovery
Informal Discovery
Motion to Compel Arbitration
Motion to Stay Discovery
Motion to Shift Costs in Discovery
Rule 26(f) Conference
Initial Disclosures
Duty to Supplement
Motion for Protective Order – Confidential Documents
Electronically Stored Information (ESI)
Expert Witnesses
Expert Disclosures
Rebuttal Expert Disclosures
Supplemental Expert Disclosures
Motion to Strike Supplemental Disclosures
Expert Reports
Interrogatories
Requests for Production
Requests for Admission
Objections to Discovery:
1. Vague
2. Ambiguous
3. Overly Broad
5. Incoherent/Unintelligible
6. Inconsistent with the Orderly and Efficient Conduct of Discovery
7. Premature (pursuant to Rule 26(f) or Court Order)
8. Untimely (after the deadline for service of written discovery or outside discovery)
9. Unreasonably Delayed
10. In Excess of Numerical Limits
11. Privileged
12. Work Product Doctrine
13. Ulterior Motive (Trade Secret)
14. Trade Secret (Production, if at all, subject to 2-level Protective Order)
15. Destruction (Discovery would require destruction or alteration of evidence)
16. Annoyance
17. Embarrassment
18. Oppression
19. Undue Expense (may require Cost Shifting)
20. Invasion of Privacy (invades Constitutionally-protected privacy right)
21. Proportionality
22. Irrelevant/Not Reasonably Calculated to Lead to Discovery of Admissible Evidence
23. Lack of Knowledge
24. Lack of Possession or Control of Information/Documentation Sought
25. Lack of Existence
Deposition Notice
Deposition Exhibits
Deposition Objections:
1. Permissible Objections
2. Speaking Objections & Coaching
3. When (and how) to contact the judge/magistrate mid-deposition
4. When (and how) to terminate the deposition
5. Sanctions and remedies for deposition conduct
Deposition: 30(b)(6) Notice & Objections to Notice
Deposition: Apex Doctrine
Deposition: Subpoena
Privilege Logs
Motions Practice from Failure to Produce (adequate?) Privilege Log
Inspection
Motion for In Camera Examination
Motion to Compel: No Privilege
Motion to Compel: Waiver of Privilege
Motion to Compel: Crime Fraud Exception
Motion to Compel: Work Product Doctrine Necessity
Subpoena Duces Tecum
Subpoena for Deposition
Motion to Quash
Motion for Protective Order – Prevent Discovery
Discovery Conferral and Letters
Motion to Compel: Discovery Sanctions
Spoliation
International Discovery: Request for Letters Rogatory
Special Masters
10. Motions & Hearings
Removal
Motion for Remand
Motion to Recuse Judge
Motion to Disqualify Counsel
Default Judgment: Soldiers & Sailors Civil Relief Act
Default Judgment: Request Entry of Default
Default Judgment: Liquidating Damages
Motion to Dismiss (MTD)
MTD: Twiqbal
MTD: Jurisdiction
Motion to Change Venue & Forum Nonconveniens
Motion for a More Definite Statement/Rule 9(b)
Motion to Join Claims or Consolidate Cases
Motion for Cost Bond
Motion for Judgment on the Pleadings
Markman Hearing (Patent Claims Construction)
Motion for Class Certification
Motion to Strike Late Supplement
Motion to Exclude 702/Daubert
Motion for Rule 11 Sanction
Motion for Leave to Amend
Motion for Leave to Amend/Punitive Damages
Motion for Extension of Time
Motion for Summary Judgment (MSJ)
When to file an early MSJ
Rule 56(f), MSJs, and Discovery
Partial and/or Offensive MSJ
Motions in Limine
Entry of Appearance
Motion to Withdraw / Notice of Withdrawal
Notice of Substitution
11. Notices, Suggestions, & Administrative
Rule 7.1 Corporate Disclosure Statement
Certificate of Review
Notice of Change of Address/Contact Information
Notice of Hearing/Setting
Suggestion of Bankruptcy
Suggestion of Death
12. Damages, Fees, & Costs
Calculation
Punitive Damages
Presumed Damages
Nominal Damages
Attorney Fees
Taxable Costs
Tax Effect of Categorization of Damages
Categorization/Classification of Damages and Insurance Coverage
Litigation Financing
13. Settlement
Settlement Offer
Rule 68 Offer of Judgment
Mediation Statement
Mediation
Early Neutral Evaluation
Settlement Agreement
Dismissal (Rule 41)
Mary Carter Agreement
Pierringer Agreement
Loan Release Agreement
High-Low Agreement
Allocating portion of settlement to "settlement of claims" and other portion as non-taxable payment (e.g. pain and suffering) - the limits of restructuring claims and settling those new claims at settlement.
14. Evidence & Objections
Relevance
Privilege
Witnesses
Opinions
Hearsay
Authentication and Identification
Documents
15. Trial
Theme
Jury Instructions
Verdict Forms
Special Verdict, General Verdict, and Questions to Jury – Rule 49
Jury Selection & Voire Dire
Batson challenge
Number of Jurors – Rule 48
Opening Statement
Direct Examination
Cross Examination
Re-Direct Examination
Re-Cross Examination
Questions from the Jury
Objections
Motion for Directed Verdict
Closing Argument
Polling the Jury – Rule 48
16. Post-Trial
Motion for Judgment Non Obstante Veredicto (JNOV)
Motion for New Trial
Motion to Amend Judgment
Relief from Judgment – Rule 60
Stay of Enforcement – Rule 62
17. Appeal
Rule 54(b) Certification
Notice of Appeal
Supersedeas Bonds
Motion for Cost Bond
Extraordinary Writs
Appellate Motions
Record and Appendix
Opening Brief
Response Brief
Reply Brief
Amicus Briefs
Procedure and Practice re Amicus Briefs
Oral Argument
Re-Hearing En Banc
Petition for Writ of Certiorari
18. Collection: A judgment is a very expensive piece of paper unless you can effectively and efficiently turn it into money in the bank:
Motion to Commence Supplementary Post-Judgment Proceedings in Aid of Execution
Arrest
Attachment
Garnishment
Replevin
Sequestration
Execution - Rule 69 Interrogatories
Execution - Rule 69 Deposition
Appointment of Receiver
Domestication of judgment (from different state or US territory)
Domestication of foreign judgments (foreign countries)
19. Feedback: Any effective litigation and legal risk management system must incorporate continuous and timely feedback, and always evolve to keep pace with changing case law, procedure, client situations, and economic realities.
Continuous Feedback Principle - Integration into Every Phase Above
Kaizen
OODA-Loop
Scale-Free Spiral Development
Vail Law's business litigation and risk management practices are driven by the systemic, strategic focus demonstrated by this Litigation Checklist. Contact us at (303) 600-3730 or jvail@vail-law.com. Connect with me on LinkedIn.