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  • Jeff Vail

Litigation & Legal Risk Management Checklist

Updated: Oct 17, 2020

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:

2. Duty of Care

3. Duty of Candor

4. Duty of Loyalty

5. Duties owed by Control Group to Minority Owners

1. Libel vs. Slander

2. Per Se vs. Pro Quod

3. Against Public Persons or Matters of Public Interest

B. Claims in Equity:

C. Statutory Civil Claims

  • State Corporations and LLC Act Claims

  • State Consumer Protection Acts

  • Securities Fraud/Securities Act/Exchange Act

  • RICO/State Analogue

  • Civil Theft

  • 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.

  • Duty to Preserve

  • 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

  • The Economic Loss Rule (and Intentional Torts after Bermel)

  • 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

  • Answer

  • Affirmative Defenses (List of 229)

  • Reply to Answer (pursuant to F.R.C.P. 7(a)(7))

  • 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

  • Defense Class Action

  • 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

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 Strike Affirmative Defenses

  • 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

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 Connect with me on LinkedIn.

5,882 views1 comment

1 Comment

Laura Courage
Laura Courage
Aug 17, 2023

Thank you for these incredible lists.

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