Washington D.C. monument, taken during thunder storm on a recent family vacation.Upon taking in a new file, it is my job to marshal as much evidence as possible in order to ascertain the strengths and weaknesses of your case.  I believe it is important to negotiate from a position of strength.  It is also important to know when in a particular cycle you are going to be in the strongest negotiating position.

I have a colleague who is working on a sexual harassment case that is in the pre-litigation phase, meaning he has not yet filed a case against the prospective defendants.  There is no dispute that the harassment occurred.  There is no dispute that my colleague’s client had given notice to her employer of previous harassing behavior by her supervisor.  It is unknown at present, however, if there had been other prior complaints to the employer regarding this supervisor’s harassing conduct.  My colleague has a strong case now.  Assuming he has done a thorough and accurate job assessing his client’s credibility and likability (meaning, will the prospective plaintiff appeal to the jury), his case can only get stronger as he initiates litigation.  Even if there are no smoking guns out there with respect to prior complaints, he still has a strong case.  There is little risk to taking a hard line approach now to the negotiation process and initiating litigation quickly if the defendants are not properly motivated.

Certain types of cases are conducive to early resolution, while others require that evidence be collected, generally through the formal process of discovery, before they can be resolved.  Injury cases are generally pretty clear early on as to liability (who was at fault) and damages (the monetary value of the injuries).  The issue in those cases is getting all of the records together to make a proper evaluation, which should be completed prior to litigation.  A comprehensive client interview should also occur at the outset to determine whether the prospective plaintiff or defendant is going to be a sympathetic witness.  Business disputes, on the other hand, are generally document-intensive.  Even a “simple” contract dispute may require collection and review of hundreds if not thousands of pages of records.  And other cases, such as the aforementioned sexual harassment dispute and insurance bad faith litigation, are generally going to require significant discovery within the context of litigation before they are ripe for resolution.  In those cases, the plaintiff is attempting to show a pattern and practice of a given type of conduct, and those smoking guns are only going to be unearthed with significant effort and legal wrangling.

As a client, it is important for you to ask your lawyer what evidence he/she needs in order to move your case forward, and how you can help to get that information together.  As a lawyer, having a client who is actively engaged and responsive makes our job representing you infinitely easier.  Remember - I need your help in the same way that you need mine.

Within civil litigation, after a complaint is filed the parties begin the discovery process pursuant to the Civil Discovery Act (Cal. Code of Civil Procedure §§ 2016.010, et seq.). There are varying philosophies on the purpose of discovery. Clients generally want to receive every document that could potentially benefit their case (including but not limited to “the smoking gun”), while offering nothing detrimental or harmful to the other side. Unfortunately, that is not the purpose of the Civil Discovery Act, which requires the liberal production of anything non-privileged that may lead to the discovery of admissible evidence.

As a lawyer, the quickest way to profit off of a client (or to drum up massive fees) is to engage in frivolous discovery disputes. Lawyers generally know before they engage in a discovery dispute what the result is going to be. If they don’t, there is a meet and confer process required by the code whereby lawyers are forced to communicate in good faith regarding the merits of the discovery dispute. As a last resort, the lawyers may go to court (or use a discovery referee) for a determination on a discovery dispute. Courts hate discovery disputes, and with good reason. I have not encountered a discovery dispute that could not be resolved through the meet and confer process. Discovery disputes are time-consuming, costly, and generally speaking the code is going to require the party objecting to production of a document or other piece of evidence to turn over the evidence unless that evidence is protected by a privilege.

In short, the purpose of discovery is a mutual exchange. It’s a mutual exchange of facts, a mutual exchange of witnesses, a mutual exchange of documents, and a mutual exchange of expert witnesses. Some of the evidence is going to go in your favor, some of it will not. Sometimes the smoking gun, if there is one, may be in your favor. Sometimes it may not. Most often, there is no smoking gun. There are piles of documents and anywhere from a handful to many witnesses, and lawyers who, if they are doing their jobs, are working together to mutually exchange and evaluate the evidence to assist their clients in resolving a dispute.

The most important thing a client wants to know is how much his/her case is worth. Sometimes the assessment is fairly simple: there are monies owed pursuant to a contract that have not been paid. I recently had such a case in the context of public works construction. That case became more complicated, however, when additional elements of damages were factored into the equation. My client, a subcontractor, was also entitled to prompt payment penalties (Cal. Pub. Contract Code § 7107; Cal. Bus. & Prof. Code § 7108.5), interest, and attorney’s fees. Having a firm grasp on the underlying contract damages made the job of calculating the remaining damages much easier. At that point, the question became what the client would accept to resolve the case short of trial.

Some cases are not as easy to assess. For example, I have been working on a number of internet piracy cases. I have a client who is an industry leader in his field. He has registered copyrights on his web site content. In attempting to enter that field, several different entities and individuals have simply cut and pasted material from my client’s web site. Statutory damages for willful infringement of a copyright range from $200 to $150,000. (See http://www.copyright.gov/title17/92chap5.html.) So if someone has taken 2-3 pages of copyrighted content verbatim, is that infringement worth $200 or $150,000? I have conducted extensive research for verdicts and settlements on these internet piracy cases to ascertain that the infringement may be worth anywhere from $25,000 to $75,000 per infringement. (Note: this assumes that there are no actual profits made by the infringer and/or actual damages incurred by my client.)

The value of a case may also change throughout the pendency of the litigation. I have had cases that appeared to be $100,000 cases when they came in the door only to find, through the discovery of adverse evidence, that the case was only worth $30,000. I have also had cases that appeared to be $200,000 cases that ultimately resolved for several times that amount. Sometimes the evidence falls in your favor, sometimes it doesn’t. There are always risks to litigation: There is the risk that evidence will be unearthed during discovery that is adverse to your claim or case. Then there is the risk that all of the evidence will fall in your favor, but a jury will not be sympathetic to you or your case.

One of the most important things I do is to minimize your risk, and to help you understand the level of risk. It is my job to constantly and continually evaluate and re-assess your case, and to communicate these assessments and evaluations to you. There are several steps I take to make sure we are headed down the right path. The first is to always understand the evidence as it currently stands. The second is to obtain the strongest evidence that will help us prove our case or disprove the opponent’s case. The third is to conduct whatever research is necessary or appropriate to ensure that we have the proper documentation to substantiate our position. The issue is not whether or not there are going to be curveballs; the issue is whether you can hit the curveballs when they inevitably come.