This case calendar and court deadlines checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
This checklist is based on the Colorado Rules of Civil Procedure, and is significantly different than the calendar and deadlines applicable in federal courts (I will publish a separate federal calendar/deadlines checklist soon). Additionally, many of these deadlines are presumptive but can be changed by case management and scheduling orders or motions for extensions of time in individual cases. The following deadlines assume that parties opt out of simplified procedure if applicable.
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Checklist:
Deadlines running forward from at issue date (date all parties have answered or been defaulted):
+ 15 days after at issue: Meet and confer with opposing counsel regarding claims and defenses, Rule 26(a)(1) disclosures, and Case Management Order per C.R.C.P. 16(b)(3)
+ 30 days after at issue: Plaintiff set matter for trial per C.R.C.P. 16(b)(4)
+ 30 days after at issue: Initial disclosures due per C.R.C.P. 16(b)(5) and 26
+ 35 days after at issue: Deadline to opt out of simplified procedure if applicable per C.R.C.P. 16.1(d)
+ 35 days after at issue: Parties must have discussed settlement per C.R.C.P. 16(b)(6)
+ 45 days after at issue: File certificate of compliance with Rules 16(b)(3-6) per C.R.C.P. 16(b)(7)
+ 45 days after at issue: File stipulated modified case management order (only if all parties agree to jointly seek to deviate from the presumptive Case Management Order and show good cause) per C.R.C.P. 16(c)(1)
+ 45 days after at issue: Discovery may commence per C.R.C.P. 16(b)(10)
+ 90 days after at issue: Deadline to designate non-parties at fault
+ 120 days after at issue: Deadline for motions to amend pleadings and add additional parties to the case per C.R.C.P. 16(b)(8); see also Rule 15
Deadlines running backward from trial date:
- 120 days before trial: Plaintiff's expert disclosures due per C.R.C.P. 26(a)(2)(C)(I)
-- Deadline for Defendant to file rebuttal expert disclosures is 20 days later, per C.R.C.P. 26(a)(2)(C)(III)
- 90 days before trial: Defendant's expert disclosures due per C.R.C.P. 26(a)(2)(C)(II)
-- Deadline for Plaintiff to file rebuttal expert disclosures is 20 days later, per C.R.C.P. 26(a)(2)(C)(III)
- 85 days before trial: Deadline to file motion for summary judgment per C.R.C.P. 16(b)(9) and 56(c)
- 80 days before trial: Deadline to serve written discovery (hand delivered)
- 70 days before trial: Deadline to file cross-motion for summary judgment per C.R.C.P. 56
- 60 days before trial: Motion to exclude expert testimony pursuant to CRE 702
- 50 days before trial: Discovery cut-off per C.R.C.P. 16(b)(10)
- 40 days before trial: Exchange draft witness lists and exhibits in preparation of Trial Management Order per C.R.C.P. 16(f)(2)
- 35 days before trial: Deadline to file pre-trial motions and motions in limine
- 30 days before trial: Deadline to complete court-mandated ADR
- 30 days before trial: File Trial Management Order
- 25 days before trial: Deadline to designate deposition or other preservation testimony for proponent of testimony per C.R.C.P. 16(f)(3)(IV)(D)
- 15 days before trial: last day to serve statutory offer of settlement
- 10 days before trial: Rebuttal designations regarding parties' preservation testimony per C.R.C.P. 16(f)(3)(IV)(D)
- 10 days before trial: Deadline to file trial briefs per C.R.C.P. 16(f)(3)(VI)(D)
- 5 days before trial: Reply designations regarding parties' preservation testimony per C.R.C.P. 16(f)(3)(VI)(D)
- 3 days before trial: Submit designated deposition and preservation testimony per C.R.C.P. 16(f)(3)(VI)(D)
- 3 days before trial: Submit jury instructions and verdict forms per C.R.C.P. 16(g)
** Request for testimony by telephone: as soon as possible per Rule 43(f)(i)(1)
TRIAL DATE
+ 15 days after Order or Judgment: File Bill of Costs and Request for Attorneys' Fees
+ 45 days after Order or Judgment: File Notice of Appeal per C.A.R. 4(a)
Additional considerations:
- See C.R.C.P. 38 regarding jury fee deadlines
- With the 2012 revisions to the C.R.C.P., there is no longer a 3-day extension of time for service by fax, e-mail, or electronic service.
- Motion to strike must be filed within 20 days of relevant pleading per C.R.C.P. 12(f)
- Legal holidays: New Years Day, MLK, Presidents' Day, Memorial Day, Labor Day, Columbus Day, Vetgerans' Day, Thanksgiving, Christmas, any other day court is closed.
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Thoughts & Best Practices:
- Calendar all known deadlines immediately
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This case calendar and court deadlines checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Tuesday, June 22, 2010
Thursday, June 17, 2010
Statutory Offer of Settlement (Litigation Checklist)
This statutory offer of settlement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy. The statutory offer of settlement, a tort reform measure passed in Colorado, is governed by C.R.S. Section 13-17-202. It is very similar to the offer of judgment procedure governed in federal court by F.R.C.P. 68. If an offer of settlement is rejected and the rejecting plaintiff ultimately recovers less than the offer of settlement, then the defendant can recover costs (but not attorneys' fees) incurred after the offer was made.
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Checklist:
- Offers of settlement may be served by either the plaintiff or defendant, but must be served more than 14 days before the start of trial (or before the start of a hearing on damages if that issue is reserved for after trial on the issue of liability).
- State that, unless accepted, this offer constitutes a confidential communication made in the context of settlement negotiations pursuant to either C.R.E. 408 or F.R.E. 408. Making confidentiality a condition of acceptance may invalidate the statutory nature of the offer. Martin v. Minnard, 862 P.2d 1014 (Colo. App. 1993).
- State terms of offer of settlement: [offeror] offers to settle this lawsuit on the following terms in exchange for a dismissal with prejudice of all claims asserted by plaintiff against defendant: [payment amount and/or other terms].
- Do not include non-monetary terms in the offer. URS Group, Inc. v. Tetra Tech FW, Inc., 181 P.3d 380 (Colo. App. 2008). Non-monetary terms include the requirement that a party release "all future claims related to the subject of the litigation." Id.
- Make sure the terms of the offer are unambiguous.
- State that this offer of settlement will be deemed rejected if not accepted within 14 days after service of the offer.
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Thoughts & Best Practices:
- Calendar key times to reconsider making an offer of settlement, e.g. immediately upon answering a claim, before hiring experts or other significant recoverable costs, before filing a dispositive motion, etc.
- Be clear which claims, and which parties, are covered by the offer of settlement (e.g. "offers to settle all claims by plaintiff X against defendant Y").
- Offers of settlement can be withdrawn during the 14 day statutory period by service of a written withdrawal of offer. C.R.S. Section 13-17-202(1)(a)(V). Be prepared to withdraw an offer quickly when applicable (e.g. after grant of partial motion for summary judgment in your favor, etc.).
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This statutory offer of settlement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Offers of settlement may be served by either the plaintiff or defendant, but must be served more than 14 days before the start of trial (or before the start of a hearing on damages if that issue is reserved for after trial on the issue of liability).
- State that, unless accepted, this offer constitutes a confidential communication made in the context of settlement negotiations pursuant to either C.R.E. 408 or F.R.E. 408. Making confidentiality a condition of acceptance may invalidate the statutory nature of the offer. Martin v. Minnard, 862 P.2d 1014 (Colo. App. 1993).
- State terms of offer of settlement: [offeror] offers to settle this lawsuit on the following terms in exchange for a dismissal with prejudice of all claims asserted by plaintiff against defendant: [payment amount and/or other terms].
- Do not include non-monetary terms in the offer. URS Group, Inc. v. Tetra Tech FW, Inc., 181 P.3d 380 (Colo. App. 2008). Non-monetary terms include the requirement that a party release "all future claims related to the subject of the litigation." Id.
- Make sure the terms of the offer are unambiguous.
- State that this offer of settlement will be deemed rejected if not accepted within 14 days after service of the offer.
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Thoughts & Best Practices:
- Calendar key times to reconsider making an offer of settlement, e.g. immediately upon answering a claim, before hiring experts or other significant recoverable costs, before filing a dispositive motion, etc.
- Be clear which claims, and which parties, are covered by the offer of settlement (e.g. "offers to settle all claims by plaintiff X against defendant Y").
- Offers of settlement can be withdrawn during the 14 day statutory period by service of a written withdrawal of offer. C.R.S. Section 13-17-202(1)(a)(V). Be prepared to withdraw an offer quickly when applicable (e.g. after grant of partial motion for summary judgment in your favor, etc.).
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This statutory offer of settlement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Answer (Litigation Checklist)
This checklist for drafting an answer to a complaint and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Calendar the deadline to file an answer or other responsive pleading: within 21 days after being served with the summons and complaint in Federal Court, F.R.C.P. 12(a), or within 20 days after service of the summons and complaint in Colorado, C.R.C.P. 12(a).
- Consider asking for an extension of time to answer or otherwise respond (be sure to state "or otherwise respond," or opposing party could argue any motion under Rule 12(b) is untimely).
- Begin to build a litigation plan for this lawsuit (review legal requirements for claims asserted, discuss claims with client, etc.).
- Identify the required elements of all claims asserted (part of the litigation plan).
- Determine if a complaint in state court can and should be removed to federal court.
- Determine whether there are grounds to file a motion to dismiss, a motion for a more definite statement, or a motion to strike.
- Determine whether venue is proper, and file a motion for a change of venue if appropriate.
- Respond appropriately to each allegation in complaint:
-- Admit or deny any allegation that is either true or false in its entirety.
-- Admit any portion of allegation which is true, stating "defendant denies the remainder of the allegations contained in Paragraph X of the complaint."
-- Where you have insufficient knowledge to admit or deny, state so, but conclude that "and therefore defendant denies the allegations of Paragraph X of the complaint."
-- If an allegation states a legal conclusion, state so and add that "therefore no response is required. However, to the extent a response is required, defendant denies the allegations of Paragraph X."
-- If an allegation makes a conclusion about the meaning of a legal document or purports to summarize such document, state that "the document speaks for itself and no response is required. However, to the extent a response is required, defendant denies the allegations of Paragraph X."
- Include a reservation of rights and general denial: "defendant denies that plaintiff is entitled to judgment in its favor or for any relief whatsoever, including the relief requested in paragraphs (x) through (x) of plaintiff’s prayer for relief. Defendant denies any allegations in the complaint to which it did not specifically respond. Defendant reserves the right to assert any additional and further defenses as may be revealed by discovery or otherwise."
- Identify and plead all appropriate affirmative defenses (alternately called additional defenses). Despite the reservation of rights above, it may not be possible to amend an answer to add affirmative defenses at a later date, so review a comprehensive list of affirmative defenses.
- Determine whether it is appropriate to file a counterclaim, a cross-claim, a third-party complaint, or to move to join additional defendants to this action. Per F.R.C.P. 13(a) and C.R.C.P. 13(a), if a counterclaim "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim" and "does not require adding another party over whom the court cannot acquire jurisdiction," then it is a compulsory counterclaim and must be asserted concurrently with the answer.
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Thoughts & Best Practices:
- When considering a motion to dismiss that will likely result in the opportunity to amend the pleading or a motion for more a definite statement, weigh whether the advantage gained by forcing the plaintiff to re-plead or amend will outweigh the disadvantage of highlighting the weaknesses in plaintiff's complaint so that they can be fixed. Would it be better to save this argument for a motion for summary judgment, or even for trial?
- Consider what advantages can be gained by electing to admit some allegations that could be properly contested--e.g. cost control, reduction in scope of discovery, narrowing the issues to those where your client has the more compelling argument, etc.?
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This answer checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Calendar the deadline to file an answer or other responsive pleading: within 21 days after being served with the summons and complaint in Federal Court, F.R.C.P. 12(a), or within 20 days after service of the summons and complaint in Colorado, C.R.C.P. 12(a).
- Consider asking for an extension of time to answer or otherwise respond (be sure to state "or otherwise respond," or opposing party could argue any motion under Rule 12(b) is untimely).
- Begin to build a litigation plan for this lawsuit (review legal requirements for claims asserted, discuss claims with client, etc.).
- Identify the required elements of all claims asserted (part of the litigation plan).
- Determine if a complaint in state court can and should be removed to federal court.
- Determine whether there are grounds to file a motion to dismiss, a motion for a more definite statement, or a motion to strike.
- Determine whether venue is proper, and file a motion for a change of venue if appropriate.
- Respond appropriately to each allegation in complaint:
-- Admit or deny any allegation that is either true or false in its entirety.
-- Admit any portion of allegation which is true, stating "defendant denies the remainder of the allegations contained in Paragraph X of the complaint."
-- Where you have insufficient knowledge to admit or deny, state so, but conclude that "and therefore defendant denies the allegations of Paragraph X of the complaint."
-- If an allegation states a legal conclusion, state so and add that "therefore no response is required. However, to the extent a response is required, defendant denies the allegations of Paragraph X."
-- If an allegation makes a conclusion about the meaning of a legal document or purports to summarize such document, state that "the document speaks for itself and no response is required. However, to the extent a response is required, defendant denies the allegations of Paragraph X."
- Include a reservation of rights and general denial: "defendant denies that plaintiff is entitled to judgment in its favor or for any relief whatsoever, including the relief requested in paragraphs (x) through (x) of plaintiff’s prayer for relief. Defendant denies any allegations in the complaint to which it did not specifically respond. Defendant reserves the right to assert any additional and further defenses as may be revealed by discovery or otherwise."
- Identify and plead all appropriate affirmative defenses (alternately called additional defenses). Despite the reservation of rights above, it may not be possible to amend an answer to add affirmative defenses at a later date, so review a comprehensive list of affirmative defenses.
- Determine whether it is appropriate to file a counterclaim, a cross-claim, a third-party complaint, or to move to join additional defendants to this action. Per F.R.C.P. 13(a) and C.R.C.P. 13(a), if a counterclaim "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim" and "does not require adding another party over whom the court cannot acquire jurisdiction," then it is a compulsory counterclaim and must be asserted concurrently with the answer.
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Thoughts & Best Practices:
- When considering a motion to dismiss that will likely result in the opportunity to amend the pleading or a motion for more a definite statement, weigh whether the advantage gained by forcing the plaintiff to re-plead or amend will outweigh the disadvantage of highlighting the weaknesses in plaintiff's complaint so that they can be fixed. Would it be better to save this argument for a motion for summary judgment, or even for trial?
- Consider what advantages can be gained by electing to admit some allegations that could be properly contested--e.g. cost control, reduction in scope of discovery, narrowing the issues to those where your client has the more compelling argument, etc.?
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This answer checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Wednesday, June 16, 2010
Motion to Remand (Litigation Checklist)
This motion to remand checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- State basis for remand (procedural, jurisdictional, abstention).
- A motion to remand based on a procedural defect in the removal process must be filed within 30 days of the filing of the notice of removal. 28 U.S.C. 1447(c).
- A motion to remand based on lack of jurisdiction may be filed any time prior to entry of final judgment by the federal court.
- There is a presumption against removal jurisdiction, and the court must strictly construe the removal statute. Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982).
- The party seeking removal has the burden of proving the jurisdictional and procedural requirements for removal. Laughlin v. Prudential Ins. Co., 882 F.2d. 187 (5th Cir. 1989).
- If, after removal, the plaintiff seeks to join parties that would destroy the diversity jurisdiction basis for removal, the court may deny joinder or permit joinder and remand the case. 28 U.S.C. 1447(e).
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Thoughts & Best Practices:
- Even if federal court has jurisdiction on removal related to a bankruptcy proceeding, consider asking court to abstain from exercising jurisdiction pursuant to 28 U.S.C. 1334(c)(1) and remand.
- Consider seeking costs associated with removal and remand. “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal.” 28 U.S.C. §1447(c). “[T]he district court does not have to find that the state court action has been removed in bad faith as a prerequisite to awarding attorney’s fees.” Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 322 (10th Cir. 1997).
- If remand is granted, follow up with federal court regarding notification to state court--various courts apply different procedures, but the Clerk for the District of Colorado has previously sent a letter to the applicable state court notifying it of remand and enclosing the docket, usually as .pdf files on CD. Courts may be flexible in adopting varying procedures when warranted.
- If remand is granted, consider filing a status report with the state court to update the court on proceedings during removal. If necessary, request status conference to determine the effect of proceedings while removed on proceedings at the state court.
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Example Forms:
- Motion To Remand (asking Bankruptcy Court to abstain from exercising jurisdiction underly Finley)
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This motion to remand checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- State basis for remand (procedural, jurisdictional, abstention).
- A motion to remand based on a procedural defect in the removal process must be filed within 30 days of the filing of the notice of removal. 28 U.S.C. 1447(c).
- A motion to remand based on lack of jurisdiction may be filed any time prior to entry of final judgment by the federal court.
- There is a presumption against removal jurisdiction, and the court must strictly construe the removal statute. Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982).
- The party seeking removal has the burden of proving the jurisdictional and procedural requirements for removal. Laughlin v. Prudential Ins. Co., 882 F.2d. 187 (5th Cir. 1989).
- If, after removal, the plaintiff seeks to join parties that would destroy the diversity jurisdiction basis for removal, the court may deny joinder or permit joinder and remand the case. 28 U.S.C. 1447(e).
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Thoughts & Best Practices:
- Even if federal court has jurisdiction on removal related to a bankruptcy proceeding, consider asking court to abstain from exercising jurisdiction pursuant to 28 U.S.C. 1334(c)(1) and remand.
- Consider seeking costs associated with removal and remand. “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal.” 28 U.S.C. §1447(c). “[T]he district court does not have to find that the state court action has been removed in bad faith as a prerequisite to awarding attorney’s fees.” Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 322 (10th Cir. 1997).
- If remand is granted, follow up with federal court regarding notification to state court--various courts apply different procedures, but the Clerk for the District of Colorado has previously sent a letter to the applicable state court notifying it of remand and enclosing the docket, usually as .pdf files on CD. Courts may be flexible in adopting varying procedures when warranted.
- If remand is granted, consider filing a status report with the state court to update the court on proceedings during removal. If necessary, request status conference to determine the effect of proceedings while removed on proceedings at the state court.
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Example Forms:
- Motion To Remand (asking Bankruptcy Court to abstain from exercising jurisdiction underly Finley)
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This motion to remand checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Notice of Removal (Litigation Checklist)
This notice of removal checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy. It addresses the removal of cases from state to federal court.
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Checklist:
- Only the defendant, and not the plaintiff, may removal an action to federal court. See 28 U.S.C. 1441(a).
- File Notice of Removal with both state court where action is currently pending and federal court where to which action is to be removed
- File motion to intervene to file notice of removal if removing party is not party to state action (i.e. where removing party is debtor and state court actions will impact adjudication of bankruptcy filing)
- 28 U.S.C. Section 1452(a) provides authority for removal
- Set forth procedural background: when state court case was filed, what claims asserted in state court action
- Attach a copy of state court complaint and all process and proceedings filed in state court (attach only to filing of notice in federal court)
- Must file notice of removal in federal court within 30 days of receipt of copy of the initial pleading setting forth the claim or cause of action sought to be removed. 28 U.S.C. 1446. If the case is not facially removable until service of an amended complaint, the 30 day period does not begin to run until service of that amended complaint.
- Set forth basis of federal court jurisdiction, either diversity jurisdiction pursuant to 28 U.S.C. 1332 or federal question jurisdiction pursuant to 28 U.S.C. 1331.
- Where removal is based on diversity jurisdiction, set forth the basis for diversity and state that the amount in controversy exceeds $75,000 as required by 28 U.S.C. 1332(a).
- Where removal is based based on federal question jurisdiction, state the specific basis in federal law or the United States Constitution (e.g. exclusive jurisdiction over "all civil proceedings arising under Title 11" per 28 U.S.C. 1334(b)).
- Serve notice of removal on counsel for all parties to the removed action.
- File a copy of the notice of removal with the state court from which the action is to be removed. If removing party is not a party to the state court action (i.e. in many bankruptcy proceedings), it may be necessary to file a motion to intervene to file the notice of removal with the state court.
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Thoughts & Best Practices:
- Consider the case management, congestion of the dockets, discovery, and trial differences between federal court and state court prior to seeking removal--do they favor your client? For example, are you focusing on resolving this case by dispositive motion, and therefore would prefer the federal case management practice of staying the case while a motion for summary judgment is pending?
- Will removal eliminate a "home-court advantage" or change the demographics/leanings of the potential jury pool in your favor?
- Compare the advantage of keeping the assigned judge in state court versus the potential selection of judges at the federal court.
- Remember that a notice of removal must be signed pursuant to Rule 11, so sanctions may be imposed for improperly removal of a case.
- Where the case consists of more than one separate and independent causes of action, consider whether removal is still desirable if portions of the case (i.e. those not subject to federal question jurisdiction) are remanded and the case proceeds simultaneously in both state and federal courts.
- When seeking removal based on federal question jurisdiction, if the basis for federal question jurisdiction is not clear on the face of the complaint, consider whether the "Artful Pleading" or "Complete Preemption" doctrines may apply.
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Example Forms:
- Notice of Removal (Locked Version) (To be filed with federal court)
- Notice of Removal (Publicly Editable Version, please make improvements and comment below to describe changes)
- Notice of Filing of Notice of Removal (Locked Version) (To be filed with state court)
- Notice of Filing of Notice of Removal (Publicly Editable Version, please make improvements and comment below to describe changes)
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This notice of removal checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Only the defendant, and not the plaintiff, may removal an action to federal court. See 28 U.S.C. 1441(a).
- File Notice of Removal with both state court where action is currently pending and federal court where to which action is to be removed
- File motion to intervene to file notice of removal if removing party is not party to state action (i.e. where removing party is debtor and state court actions will impact adjudication of bankruptcy filing)
- 28 U.S.C. Section 1452(a) provides authority for removal
- Set forth procedural background: when state court case was filed, what claims asserted in state court action
- Attach a copy of state court complaint and all process and proceedings filed in state court (attach only to filing of notice in federal court)
- Must file notice of removal in federal court within 30 days of receipt of copy of the initial pleading setting forth the claim or cause of action sought to be removed. 28 U.S.C. 1446. If the case is not facially removable until service of an amended complaint, the 30 day period does not begin to run until service of that amended complaint.
- Set forth basis of federal court jurisdiction, either diversity jurisdiction pursuant to 28 U.S.C. 1332 or federal question jurisdiction pursuant to 28 U.S.C. 1331.
- Where removal is based on diversity jurisdiction, set forth the basis for diversity and state that the amount in controversy exceeds $75,000 as required by 28 U.S.C. 1332(a).
- Where removal is based based on federal question jurisdiction, state the specific basis in federal law or the United States Constitution (e.g. exclusive jurisdiction over "all civil proceedings arising under Title 11" per 28 U.S.C. 1334(b)).
- Serve notice of removal on counsel for all parties to the removed action.
- File a copy of the notice of removal with the state court from which the action is to be removed. If removing party is not a party to the state court action (i.e. in many bankruptcy proceedings), it may be necessary to file a motion to intervene to file the notice of removal with the state court.
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Thoughts & Best Practices:
- Consider the case management, congestion of the dockets, discovery, and trial differences between federal court and state court prior to seeking removal--do they favor your client? For example, are you focusing on resolving this case by dispositive motion, and therefore would prefer the federal case management practice of staying the case while a motion for summary judgment is pending?
- Will removal eliminate a "home-court advantage" or change the demographics/leanings of the potential jury pool in your favor?
- Compare the advantage of keeping the assigned judge in state court versus the potential selection of judges at the federal court.
- Remember that a notice of removal must be signed pursuant to Rule 11, so sanctions may be imposed for improperly removal of a case.
- Where the case consists of more than one separate and independent causes of action, consider whether removal is still desirable if portions of the case (i.e. those not subject to federal question jurisdiction) are remanded and the case proceeds simultaneously in both state and federal courts.
- When seeking removal based on federal question jurisdiction, if the basis for federal question jurisdiction is not clear on the face of the complaint, consider whether the "Artful Pleading" or "Complete Preemption" doctrines may apply.
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Example Forms:
- Notice of Removal (Locked Version) (To be filed with federal court)
- Notice of Removal (Publicly Editable Version, please make improvements and comment below to describe changes)
- Notice of Filing of Notice of Removal (Locked Version) (To be filed with state court)
- Notice of Filing of Notice of Removal (Publicly Editable Version, please make improvements and comment below to describe changes)
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This notice of removal checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Thursday, June 10, 2010
Motion for In Camera Examination or Review (Litigation Checklist)
This motion for in camera examination or review checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy. The law governing requests for in camera examinations is not well settled, but here is a general guide:
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Checklist:
- Confer. Treat this much like a motion to compel, where the court will be very skeptical of any motion that does not set forth extensive efforts to confer and resolve without involving the court.
- Set forth standard of review: "[B]efore a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability." U.S. v. Zolin, 491 U.S. 554, 574-75 (1989).
- But remind court that burden of demonstrating applicability of privilege lies with proponent of privilege. Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996).
- In Colorado, courts must conduct an in camera review and apply a balancing test prior to ordering disclosure. See Martinelli v. Dist. Court, 612 P.2d 1083 (Colo. 1980).
- Request court order opposing party to deliver specified documents to it under seal for in camera review to determine applicability of privilege/work product doctrine and/or to determine the appropriate extent of redaction.
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Thoughts & Best Practices:
- Make sure your own house is in order first: when you open the in camera review door, is your own privilege log ready for scrutiny? Consider seeking a non-waiver agreement and preemptively disclosing some or all of your own privileged/work product documents.
- Ensure privilege logs are exchanged prior to depositions where it may be possible to ask if, for example, a document was really prepared in anticipation of litigation or an email was really sent primarily to obtain legal advice.
- Watch our for the practice of hiding documents by "cc'ing" counsel. Pointing out this pattern alone may be enough to justify an in camera review, and this may be a good question to ask at certain depositions (i.e. "at what point did you begin copying your attorney on all emails related to X?").
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
This motion for in camera examination checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Confer. Treat this much like a motion to compel, where the court will be very skeptical of any motion that does not set forth extensive efforts to confer and resolve without involving the court.
- Set forth standard of review: "[B]efore a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability." U.S. v. Zolin, 491 U.S. 554, 574-75 (1989).
- But remind court that burden of demonstrating applicability of privilege lies with proponent of privilege. Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996).
- In Colorado, courts must conduct an in camera review and apply a balancing test prior to ordering disclosure. See Martinelli v. Dist. Court, 612 P.2d 1083 (Colo. 1980).
- Request court order opposing party to deliver specified documents to it under seal for in camera review to determine applicability of privilege/work product doctrine and/or to determine the appropriate extent of redaction.
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Thoughts & Best Practices:
- Make sure your own house is in order first: when you open the in camera review door, is your own privilege log ready for scrutiny? Consider seeking a non-waiver agreement and preemptively disclosing some or all of your own privileged/work product documents.
- Ensure privilege logs are exchanged prior to depositions where it may be possible to ask if, for example, a document was really prepared in anticipation of litigation or an email was really sent primarily to obtain legal advice.
- Watch our for the practice of hiding documents by "cc'ing" counsel. Pointing out this pattern alone may be enough to justify an in camera review, and this may be a good question to ask at certain depositions (i.e. "at what point did you begin copying your attorney on all emails related to X?").
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
This motion for in camera examination checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Wednesday, June 09, 2010
Motion for Admission Pro Hac Vice in Colorado (Litigation Checklist)
This motion for admission pro hac vice in Colorado checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Admission of an out-of-state attorney to practice in Colorado is governed by C.R.C.P. 221.
- Under Rule 221, an attorney in good standing from any other jurisdiction in the United States may, in the discretion of a Colorado court of record, be permitted to participate before the Court in a trial, argument and other proceeding in the particular case in which the attorney is employed, provided that a member in good standing of the Bar of the State of Colorado is associated in such cause at all stages of the case.
- Attorney moving for admission pro hac vice must verify by affidavit that:
-- Currently licensed to practice law in [name of state]
-- Has not been admitted pro hac vice to practice law in the State of Colorado for the preceding 5 years
-- Has not been publicly disciplined, suspended or disbarred in any Court
-- Who attorney is representing, and that client has been notified of this motion
-- Acknowledgement that attorney is subject to all applicable provisions of the Coloarado Rules of Professional Conduct and the Colorado Rules of Civil Procedure, that such rules have been read and will be followed throughout the pro hac vice admission and that this motion complies with those rules
-- For the purposes of representation of [client name], attorney has associated with [name of Colorado attorney], [ Bar#], who is a member in good standing of the Bar of the State of Colorado
- State that client has been provided with a copy of this motion
- State that a copy of this motion is being filed with the Clerk of the Colorado Supreme Court at the Attorney Registration Office, 1560 Broadway, Suite 1810, Denver, Colorado 80202 along with a check for the required fee of $250.00.
- Attach notarized affidavit that the verified motion for admission pro hac vice was sworn to or affirmed and signed by [name of moving attorney]
- File motion with the Court and serve on all counsel
- Sample verified motion for admission pro hac vice
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This motion for admission pro hac vice in Colorado checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Admission of an out-of-state attorney to practice in Colorado is governed by C.R.C.P. 221.
- Under Rule 221, an attorney in good standing from any other jurisdiction in the United States may, in the discretion of a Colorado court of record, be permitted to participate before the Court in a trial, argument and other proceeding in the particular case in which the attorney is employed, provided that a member in good standing of the Bar of the State of Colorado is associated in such cause at all stages of the case.
- Attorney moving for admission pro hac vice must verify by affidavit that:
-- Currently licensed to practice law in [name of state]
-- Has not been admitted pro hac vice to practice law in the State of Colorado for the preceding 5 years
-- Has not been publicly disciplined, suspended or disbarred in any Court
-- Who attorney is representing, and that client has been notified of this motion
-- Acknowledgement that attorney is subject to all applicable provisions of the Coloarado Rules of Professional Conduct and the Colorado Rules of Civil Procedure, that such rules have been read and will be followed throughout the pro hac vice admission and that this motion complies with those rules
-- For the purposes of representation of [client name], attorney has associated with [name of Colorado attorney], [ Bar#], who is a member in good standing of the Bar of the State of Colorado
- State that client has been provided with a copy of this motion
- State that a copy of this motion is being filed with the Clerk of the Colorado Supreme Court at the Attorney Registration Office, 1560 Broadway, Suite 1810, Denver, Colorado 80202 along with a check for the required fee of $250.00.
- Attach notarized affidavit that the verified motion for admission pro hac vice was sworn to or affirmed and signed by [name of moving attorney]
- File motion with the Court and serve on all counsel
- Sample verified motion for admission pro hac vice
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This motion for admission pro hac vice in Colorado checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Initial Client Interview (Litigation Checklist)
This initial client interview checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Describe situation that causes potential client to seek legal advice
- Describe internal/external factual investigations to date
- Has potential client sought counseling/representation from other attorneys?
- Company details (legal name, d/b/a, f/k/a, address, corporate form, state of incorporation, affiliates/subsidiaries/parents)
- Insurance information (if applicable)
- Key personnel name and contact information (general counsel, relevant outside counsel, appropriate business decision-maker/person with settlement or budgetary authority, risk manager, involved employees, etc.)
- Other involved parties (potential defendants, plaintiffs, third-parties, witnesses, etc.)
- What papers/pleadings/letter have you received/been served with regarding this matter?
- Discuss scope/nature of potential damages at stake
- Describe any press releases, communications, or other outside statements you have made related to this matter
- Describe concerns, how this matter fits in to your larger business situation/strategy, and what your goals/objectives are for this matter
- Describe desired timeline for matter
- Explain general process of litigation and considerations in this matter (tailored to client's level of legal sophistication)
- Discuss options related to billing method/budget for representation
- Discuss the issue of statutes of limitation (may be appropriate to state the general statute of limitation for certain claims, but to explain that you have not researched the facts or law for this particular case and therefore cannot give an opinion as to the instant statute of limitations prior to being retained)
- Conclude with a clear statement of the timing and nature of next steps: e.g., this is only an initial interview, there is no attorney-client relationship until parties have signed an engagement letter; discuss whether it is appropriate to send a draft engagement letter (or to send a non-engagement letter) at this time.
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Thoughts & Best Practices:
- When discussing goals/objectives, discuss the complete spectrum from "this is the ideal outcome," to "this would be acceptable," to "this must be avoided at any expense."
- Consider whether it is appropriate to send either an engagement letter or non-engagement letter following the initial interview to avoid any confusion over status of representation.
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This initial client interview checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Describe situation that causes potential client to seek legal advice
- Describe internal/external factual investigations to date
- Has potential client sought counseling/representation from other attorneys?
- Company details (legal name, d/b/a, f/k/a, address, corporate form, state of incorporation, affiliates/subsidiaries/parents)
- Insurance information (if applicable)
- Key personnel name and contact information (general counsel, relevant outside counsel, appropriate business decision-maker/person with settlement or budgetary authority, risk manager, involved employees, etc.)
- Other involved parties (potential defendants, plaintiffs, third-parties, witnesses, etc.)
- What papers/pleadings/letter have you received/been served with regarding this matter?
- Discuss scope/nature of potential damages at stake
- Describe any press releases, communications, or other outside statements you have made related to this matter
- Describe concerns, how this matter fits in to your larger business situation/strategy, and what your goals/objectives are for this matter
- Describe desired timeline for matter
- Explain general process of litigation and considerations in this matter (tailored to client's level of legal sophistication)
- Discuss options related to billing method/budget for representation
- Discuss the issue of statutes of limitation (may be appropriate to state the general statute of limitation for certain claims, but to explain that you have not researched the facts or law for this particular case and therefore cannot give an opinion as to the instant statute of limitations prior to being retained)
- Conclude with a clear statement of the timing and nature of next steps: e.g., this is only an initial interview, there is no attorney-client relationship until parties have signed an engagement letter; discuss whether it is appropriate to send a draft engagement letter (or to send a non-engagement letter) at this time.
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Thoughts & Best Practices:
- When discussing goals/objectives, discuss the complete spectrum from "this is the ideal outcome," to "this would be acceptable," to "this must be avoided at any expense."
- Consider whether it is appropriate to send either an engagement letter or non-engagement letter following the initial interview to avoid any confusion over status of representation.
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This initial client interview checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Tuesday, June 08, 2010
Motion to Amend (Litigation Checklist)
This motion to amend a complaint checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Confer & certification pursuant to C.R.C.P. 121 1-15(8)
- Set forth legal standard (see case law, below)
- If any applicable statute of limitation has run, set forth the basis for the amendment relating back per Rule 15(c) (see below)
- Explain claims/counter-/cross-claims to be added, and explain why they were not included in initial pleadings
- Attach proposed amended complaint/counter-/cross-claims
- Request court to grant motion and accept proposed amended complaint as filed
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Case Law, Thoughts & Best Practices:
- Consider relation back: Rule 15(c) states that, for purposes of the statute of limitations, "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." If the amendment changes the party against whom a claim is asserted, it still relates back if the party being brought in to the lawsuit "(1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that,m but for a mistake concerning the identity of the party, the action would have been brought against him." The US Supreme Court recently construed the nearly identical federal rule in Krupski v. Costa Crociere, S.p.A. (--- U.S. ----, decided June 7, 2010), holding that relation back turns on what the party to be added knew or should have known, not on the amending party's knowledge or timeliness in seeking amendment.
- Rule 15(a) of the Colorado Rules of Civil Procedure provides that a party may amend its pleadings by leave of court and that such “leave shall be freely given when justice so requires.” See also Stuart v. Frederick R. Ross Investment Co., 773 P.2d 1107, 1110 (Colo. App. 1988) (“Only if an opposing party can demonstrate prejudice to it . . . is the denial of a motion to amend appropriate.”), cert. denied (1989).
- Colorado law allows an amendment of the pleadings “at any stage of the litigation process so long as undue delay does not result and other parties are not prejudiced by such amendments.” Nelson v. Elway, 971 P.2d 245, 249 (Colo. App. 1998) (allowing an amended pleading after remand from appeals process).
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This motion to amend complaint checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Confer & certification pursuant to C.R.C.P. 121 1-15(8)
- Set forth legal standard (see case law, below)
- If any applicable statute of limitation has run, set forth the basis for the amendment relating back per Rule 15(c) (see below)
- Explain claims/counter-/cross-claims to be added, and explain why they were not included in initial pleadings
- Attach proposed amended complaint/counter-/cross-claims
- Request court to grant motion and accept proposed amended complaint as filed
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Case Law, Thoughts & Best Practices:
- Consider relation back: Rule 15(c) states that, for purposes of the statute of limitations, "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." If the amendment changes the party against whom a claim is asserted, it still relates back if the party being brought in to the lawsuit "(1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that,m but for a mistake concerning the identity of the party, the action would have been brought against him." The US Supreme Court recently construed the nearly identical federal rule in Krupski v. Costa Crociere, S.p.A. (--- U.S. ----, decided June 7, 2010), holding that relation back turns on what the party to be added knew or should have known, not on the amending party's knowledge or timeliness in seeking amendment.
- Rule 15(a) of the Colorado Rules of Civil Procedure provides that a party may amend its pleadings by leave of court and that such “leave shall be freely given when justice so requires.” See also Stuart v. Frederick R. Ross Investment Co., 773 P.2d 1107, 1110 (Colo. App. 1988) (“Only if an opposing party can demonstrate prejudice to it . . . is the denial of a motion to amend appropriate.”), cert. denied (1989).
- Colorado law allows an amendment of the pleadings “at any stage of the litigation process so long as undue delay does not result and other parties are not prejudiced by such amendments.” Nelson v. Elway, 971 P.2d 245, 249 (Colo. App. 1998) (allowing an amended pleading after remand from appeals process).
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This motion to amend complaint checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Entry of Appearance (Litigation Checklist)
This entry of appearance checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy. In Colorado, an appearance must be entered pursuant to D.C.COLO.LCivR 11.1.A (Federal Court) or C.R.C.P. 121 Section 1-1 (State Court).
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Checklist (covers both state and federal requirements):
- Appearance may be entered by pleading, motion, or any other personally signed paper. Entry of appearance in open court allowed for in federal rules only.
- Must be signed, thought facsimile shall have the same effect as original signatures, but you must maintain original signature page.
- Must state: identity of party for whom the appearance is made; attorney's office address; attorney's phone number; attorney's email address; attorney's registration number (state courts only)
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Thoughts & Best Practices:
- Consider tactical advantage of entering appearances of multiple attorneys working on case immediately, or at a specific later date.
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This entry of appearance checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist (covers both state and federal requirements):
- Appearance may be entered by pleading, motion, or any other personally signed paper. Entry of appearance in open court allowed for in federal rules only.
- Must be signed, thought facsimile shall have the same effect as original signatures, but you must maintain original signature page.
- Must state: identity of party for whom the appearance is made; attorney's office address; attorney's phone number; attorney's email address; attorney's registration number (state courts only)
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Thoughts & Best Practices:
- Consider tactical advantage of entering appearances of multiple attorneys working on case immediately, or at a specific later date.
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This entry of appearance checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Notice to Set Trial (Litigation Checklist)
This notice to set trial checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Address body of motion "To Clerk of Court and Counsel of Record"
- "Please take notice that [who will call whom] [when] to set this matter for a [length of trial]"
- State that you have requested a jury trial if applicable
- If you plan to coordinate potential dates with counsel before the setting, say so
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Thoughts & Best Practices:
- To the extent that any claims/counterclaims are equitable and you want an advisory jury, say so.
- If responding to a notice to set, ensure cross- or counterclaims are set for trial to a jury if so desired.
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This notice to set trial checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Address body of motion "To Clerk of Court and Counsel of Record"
- "Please take notice that [who will call whom] [when] to set this matter for a [length of trial]"
- State that you have requested a jury trial if applicable
- If you plan to coordinate potential dates with counsel before the setting, say so
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Thoughts & Best Practices:
- To the extent that any claims/counterclaims are equitable and you want an advisory jury, say so.
- If responding to a notice to set, ensure cross- or counterclaims are set for trial to a jury if so desired.
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This notice to set trial checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Non-Engagement Letter (Litigation Checklist)
This non-engagement letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Clear statement that you have not been engaged and do not represent [person/firm] in certain matter.
- Advise non-client that there may be statute of limitations issues that require matter to be addressed by a specified time.
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Thoughts & Best Practices:
- Send a non-engagement letter whenever you discuss engagement with a potential client, but either party decides not to move forward with the engagement.
- Similarly, send a non-engagement letter if a client refuses to return a signed copy of an engagement letter as requested, or if a client fails to pay the requested retainer.
- Send non-engagement letter if potential client sent you significant information for review, even if you never discussed engagement.
- Probably best not to advise non-client of actual dates when statutes of limitations will run because this sets up its own malpractice issues if you're wrong. Instead, advise client that statutes of limitations may exist for specific claims, but that you have not performed research required to determine exactly when these dates are for non-client's claims.
- Consider sending non-engagement letter when contacted by multiple parties but you only end up representing one/some of them (e.g. corporation, directors, employees of that corporation, etc.).
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This non-engagement letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Clear statement that you have not been engaged and do not represent [person/firm] in certain matter.
- Advise non-client that there may be statute of limitations issues that require matter to be addressed by a specified time.
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Thoughts & Best Practices:
- Send a non-engagement letter whenever you discuss engagement with a potential client, but either party decides not to move forward with the engagement.
- Similarly, send a non-engagement letter if a client refuses to return a signed copy of an engagement letter as requested, or if a client fails to pay the requested retainer.
- Send non-engagement letter if potential client sent you significant information for review, even if you never discussed engagement.
- Probably best not to advise non-client of actual dates when statutes of limitations will run because this sets up its own malpractice issues if you're wrong. Instead, advise client that statutes of limitations may exist for specific claims, but that you have not performed research required to determine exactly when these dates are for non-client's claims.
- Consider sending non-engagement letter when contacted by multiple parties but you only end up representing one/some of them (e.g. corporation, directors, employees of that corporation, etc.).
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This non-engagement letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Engagement Letter (Litigation Checklist)
This engagement letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Thank you for giving [name/firm] the opportunity to serve you
- You have asked us to [define scope of requested engagement]
- If necessary, state specific exclusions from scope of engagement (e.g. tax advice)
- Explain billing arrangement & fees [billing method/rate]
- If this is a contingency fee agreement, have you complied with all requirements of C.R.C.P. Chapter 23.3?
- Billing timeline [e.g. bill monthly, ask that invoices are paid within 30 days]
- Retainer, if any, and procedure for use/replenishment of retainer. Statement that receipt of this retainer is a prerequisite to the commencement of representation
- You have agreed to [furnish specified documents] [perform specified acts] before I start working (if applicable)
- Conflict check: cannot work for you if there is a conflict; tell all potential conflicts; we have no conflicts with respect to the following entities and persons [list]; please let me know immediately if there are any involved in this matter
- Explain document retention/destruction policy
- State that engagement will commence once a signed copy of this document is returned (if applicable) and all conditions set forth above have been met
- Thank prospective client again for opportunity
- Signature of all parties represented (if necessary--i.e. contingency fee agreements)
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Thoughts & Best Practices:
- If for any reason you do not proceed with engagement (even before a draft engagement letter is sent), or if you only represent one/some of several parties that contacted you about a specific matter, consider whether a non-engagement letter is appropriate.
Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This engagement letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Thank you for giving [name/firm] the opportunity to serve you
- You have asked us to [define scope of requested engagement]
- If necessary, state specific exclusions from scope of engagement (e.g. tax advice)
- Explain billing arrangement & fees [billing method/rate]
- If this is a contingency fee agreement, have you complied with all requirements of C.R.C.P. Chapter 23.3?
- Billing timeline [e.g. bill monthly, ask that invoices are paid within 30 days]
- Retainer, if any, and procedure for use/replenishment of retainer. Statement that receipt of this retainer is a prerequisite to the commencement of representation
- You have agreed to [furnish specified documents] [perform specified acts] before I start working (if applicable)
- Conflict check: cannot work for you if there is a conflict; tell all potential conflicts; we have no conflicts with respect to the following entities and persons [list]; please let me know immediately if there are any involved in this matter
- Explain document retention/destruction policy
- State that engagement will commence once a signed copy of this document is returned (if applicable) and all conditions set forth above have been met
- Thank prospective client again for opportunity
- Signature of all parties represented (if necessary--i.e. contingency fee agreements)
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Thoughts & Best Practices:
- If for any reason you do not proceed with engagement (even before a draft engagement letter is sent), or if you only represent one/some of several parties that contacted you about a specific matter, consider whether a non-engagement letter is appropriate.
Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This engagement letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Monday, June 07, 2010
Settlement Agreement (Litigation Checklist)
This settlement agreement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- All parties listed correctly with address and full legal name
- Recitals sufficient to identify nature and extent of claims
- Recitals identify consideration where necessary
- Payment: agreement specifies amount, form, and timing of payment(s), and where necessary the categorization of the payment (e.g. "lost profits" vs. "pain and suffering").
- Dismissal: agreement specifies nature, form, and timing of dismissal of claims
- Release language: check that scope covers all intended past, present, and future claims; states that release covers all claims, whether known or unknown, arising out of any (actions/agreement) as of (date)
- Indemnity provision: is one needed? Check Colorado Uniform Contribution Among Tortfeasors Act, C.R.S. Section 13-50.5-105, which generally eliminates the need for indemnification provisions in settlement of tort claims.
- Integration clause: e.g., "This agreement contains all agreements made between the parties. No prior agreement, representation or understanding pertaining to the same shall be valid or of any force or effect."
- No oral modification clause: e.g., "This agreement may not be supplemented or amended except in a subsequent writing signed by all parties."
- Voluntary and knowingly clause:, e.g., "The parties and each of them acknowledge that they have read this agreement and understand all of its terms, and that this agreement this agreement is executed voluntarily, without duress, and with full knowledge of its legal significance."
- Dispute resolution: clause stating method of resolution of disputes arising out of agreement (timing, arbitration, litigation, etc.) and attorneys' fees provision (e.g., "each party shall bear its own attorneys' fees with regard to the lawsuit and negotiation and preparation of this agreement; in any action to enforce or interpret this agreement, the party prevailing on the more substantial part of its claims or defenses, if any, shall be awarded its reasonable attorneys' fees and other costs and expenses arising from such action")
- Further assurances clause: e.g, "each party shall execute and deliver such further documents another party from time to time reasonably requests, and shall cooperate in connection with further matters in the Lawsuit, to effect and confirm the purposes of this agreement."
- No admission of liability clause: e.g., "Neither this agreement nor any of the terms or provisions hereof shall be construed as an acknowledgement or admission of wrongdoing or liability on the part of any party."
- Counterparts clause: e.g., "This agreement may be executed in counterparts, each of which shall be deemed an original."
- Choice of law clause: e.g., "The laws of the State of Colorado shall govern the validity, enforcement, and construction of this Agreement."
- Confidentiality clause: e.g., "Each party to this agreement agrees that it is confidential. Each party further agrees to maintain the terms and conditions of the agreement and the full contents thereof in confidence, and not to disclose or permit the disclosure of this agreement tor the terms and contents hereof to any third person or entity. Notwithstanding the foregoing, a party may disclose the terms and conditions of this agreement to its bankers, auditors, affiliated companies and other third parties on a need-to-know basis. A party to this agreement may also disclose the terms hereof if required by law to make such disclosure."
- Signature blocks for all settling parties
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Thoughts & Best Practices:
- Consider whether the release language should/must include: past, present and future constituents, shareholders, investors, affiliates, owners, officers, directors, employees, agents, successors and assigns, parent companies, subsidiaries, predecessors and successor corporations or entities.
- Consider the time-scope of the release: e.g., "...whether known or unknown, now existing or arising at any time in the future, liquidated or unliquidated arising out of any and all agreements, events, acts, omissions or conduct occurring at any time prior to and including the date of this agreement."
- Does any party to the release require specific approval or authority to enter into release? If so, ensure that a statement to that effect is included.
- Recitals: look to the interface between the recitals and the release language--do the recitals adequately set forth the factual basis to define the scope of what is, and what is not being released?
- Consider whether there are tax implications for the payor or payee, and whether any payments should be categorized to address tax implications.
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Example Form:
- Click Here for Template Settlement Agreement (Locked)
- Click Here for Publicly Editable Settlement Agreement (Please feel free to add improvements to this form, and comment below describing changes)
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This settlement agreement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- All parties listed correctly with address and full legal name
- Recitals sufficient to identify nature and extent of claims
- Recitals identify consideration where necessary
- Payment: agreement specifies amount, form, and timing of payment(s), and where necessary the categorization of the payment (e.g. "lost profits" vs. "pain and suffering").
- Dismissal: agreement specifies nature, form, and timing of dismissal of claims
- Release language: check that scope covers all intended past, present, and future claims; states that release covers all claims, whether known or unknown, arising out of any (actions/agreement) as of (date)
- Indemnity provision: is one needed? Check Colorado Uniform Contribution Among Tortfeasors Act, C.R.S. Section 13-50.5-105, which generally eliminates the need for indemnification provisions in settlement of tort claims.
- Integration clause: e.g., "This agreement contains all agreements made between the parties. No prior agreement, representation or understanding pertaining to the same shall be valid or of any force or effect."
- No oral modification clause: e.g., "This agreement may not be supplemented or amended except in a subsequent writing signed by all parties."
- Voluntary and knowingly clause:, e.g., "The parties and each of them acknowledge that they have read this agreement and understand all of its terms, and that this agreement this agreement is executed voluntarily, without duress, and with full knowledge of its legal significance."
- Dispute resolution: clause stating method of resolution of disputes arising out of agreement (timing, arbitration, litigation, etc.) and attorneys' fees provision (e.g., "each party shall bear its own attorneys' fees with regard to the lawsuit and negotiation and preparation of this agreement; in any action to enforce or interpret this agreement, the party prevailing on the more substantial part of its claims or defenses, if any, shall be awarded its reasonable attorneys' fees and other costs and expenses arising from such action")
- Further assurances clause: e.g, "each party shall execute and deliver such further documents another party from time to time reasonably requests, and shall cooperate in connection with further matters in the Lawsuit, to effect and confirm the purposes of this agreement."
- No admission of liability clause: e.g., "Neither this agreement nor any of the terms or provisions hereof shall be construed as an acknowledgement or admission of wrongdoing or liability on the part of any party."
- Counterparts clause: e.g., "This agreement may be executed in counterparts, each of which shall be deemed an original."
- Choice of law clause: e.g., "The laws of the State of Colorado shall govern the validity, enforcement, and construction of this Agreement."
- Confidentiality clause: e.g., "Each party to this agreement agrees that it is confidential. Each party further agrees to maintain the terms and conditions of the agreement and the full contents thereof in confidence, and not to disclose or permit the disclosure of this agreement tor the terms and contents hereof to any third person or entity. Notwithstanding the foregoing, a party may disclose the terms and conditions of this agreement to its bankers, auditors, affiliated companies and other third parties on a need-to-know basis. A party to this agreement may also disclose the terms hereof if required by law to make such disclosure."
- Signature blocks for all settling parties
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Thoughts & Best Practices:
- Consider whether the release language should/must include: past, present and future constituents, shareholders, investors, affiliates, owners, officers, directors, employees, agents, successors and assigns, parent companies, subsidiaries, predecessors and successor corporations or entities.
- Consider the time-scope of the release: e.g., "...whether known or unknown, now existing or arising at any time in the future, liquidated or unliquidated arising out of any and all agreements, events, acts, omissions or conduct occurring at any time prior to and including the date of this agreement."
- Does any party to the release require specific approval or authority to enter into release? If so, ensure that a statement to that effect is included.
- Recitals: look to the interface between the recitals and the release language--do the recitals adequately set forth the factual basis to define the scope of what is, and what is not being released?
- Consider whether there are tax implications for the payor or payee, and whether any payments should be categorized to address tax implications.
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Example Form:
- Click Here for Template Settlement Agreement (Locked)
- Click Here for Publicly Editable Settlement Agreement (Please feel free to add improvements to this form, and comment below describing changes)
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This settlement agreement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
Thursday, June 03, 2010
Rule 5(c) Motion (Litigation Checklist)
This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It addresses the use of Rule 5(c) motions to simplify pleading where there are a large number of defendants. Both F.R.C.P. Rule 5(c) and C.R.C.P. Rule 5(c) allow any party to file a motion requesting that defendants' pleadings be deemed served on all parties merely by serving plaintiff, and counterclaims or cross-claims in defendants' pleadings are deemed denied by all other parties. This is especially useful in cases, such as mechanics' lien foreclosures, where there are usually many defendants all of whom must assert cross-claims against all other defendants to assert priority of their claims.
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Checklist:
- State that Rule 5(c) permits the court, on a motion or its own initiative, to invoke deemed denials and service under that rule.
- Set forth the reasons why the instant case will result in numerous cross-claims or counterclaims.
- State that "The filing of these various responsive pleadings will unduly clutter the record and work a hardship on the parties."
- Include proposed order.
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Thoughts & Best Practices:
- Consider using Rule 5(c) motion in mechanics' lien foreclosure actions, interpleaders, other actions that will generate a complicated web of counter- and cross-claims.
- However, consider whether the utility of a Rule 5(c) order will outweigh the lack of potential admissions to certain allegations in counter- or cross-claims, and prepare to make requests for admission through written discovery to address the lack of a truly responsive pleading (where appropriate, consider opposing Rule 5(c) motion on these grounds, and if denied use as argument to expand number of requests for admission permitted).
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
This post is part of my Coloradolitigation checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- State that Rule 5(c) permits the court, on a motion or its own initiative, to invoke deemed denials and service under that rule.
- Set forth the reasons why the instant case will result in numerous cross-claims or counterclaims.
- State that "The filing of these various responsive pleadings will unduly clutter the record and work a hardship on the parties."
- Include proposed order.
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Thoughts & Best Practices:
- Consider using Rule 5(c) motion in mechanics' lien foreclosure actions, interpleaders, other actions that will generate a complicated web of counter- and cross-claims.
- However, consider whether the utility of a Rule 5(c) order will outweigh the lack of potential admissions to certain allegations in counter- or cross-claims, and prepare to make requests for admission through written discovery to address the lack of a truly responsive pleading (where appropriate, consider opposing Rule 5(c) motion on these grounds, and if denied use as argument to expand number of requests for admission permitted).
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
This post is part of my Coloradolitigation checklist approach to litigation knowledge management and litigation strategy.
Wednesday, June 02, 2010
Bill of Costs (Litigation Checklist)
This Bill of Costs checklist is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. In Colorado, C.R.C.P. 54(d) states that “costs shall be allowed as of course to the prevailing party.” Prevailing plaintiffs can recover costs, C.R.S. 13-16-104, as can prevailing defendants, C.R.S. 13-16-105. C.R.S. 13-16-122 specifies what items may be recovered as “costs,” though this list is not inclusive. See Am. Water Development, Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994).
Checklist:
- Timing: Bill of Costs must be filed within 15 days “of the entry of order or judgment, or within such greater time as the court may allow.” C.R.C.P. 121 Section 1-22(1)
- Confer with opposing party (party to be taxed) per C.R.C.P. 121 Section 1-15(8). Include affidavit from attorney stating that costs to be taxed are reasonable and necessary solely for the purpose of this litigation.
- Include invoices/bills reflecting costs to be taxed were actually billed to client.
- Include a proposed order.
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Thoughts & Best Practices:
- Consider negotiating a release of right to appeal in exchange for not seeking Bill of Costs; file motion for extension of 15 day deadline to file Bill of Costs if negotiations require more time.
- Bill of costs should be styled a “Bill of Costs and Motion to Approve Bill of Costs.”
- Review C.R.S. 13-16-122 (list of allowable costs) and case law (below) at outset of case to ensure that costs are being billed in a recoverable manner. Statements that applicable requirements are met should be included in affidavit and referenced in motion:
-- Copying expenses incurred for use in this case are recoverable under C.R.S. § 13 16-122(1)(f). See Nguyen v. Regional Transp. Dist., 987 P.2d 933, 936 (Colo. App. 1999); Harvey v. Farmers Ins. Exch., 983 P.2d 34, 41 (Colo. App. 1998) (within court’s discretion to award photocopying charges incurred solely for benefit of particular litigation)
-- Reasonable telephone expenses are properly awarded as costs. Harvey, 983 P.2d at 41-42 (allowing costs for long-distance telephone calls because calls were not commingled with any of the general costs of doing business or the costs of other litigation).
-- Delivery charges also are awardable as costs. See Harvey, 983 P.2d at 41 (court acted within its discretion when awarding delivery costs incurred solely for the benefit of the particular litigation).
-- Pursuant to C.R.S. § 13-16-122(1)(a) docket fees are recoverable as costs.
-- A court reporter’s fee is awardable under C.R.S. § 13-16-122(1)(d), as well as the costs associated with depositions which are needed in order to develop a defense “in light of the facts known to counsel at the time” the depositions were taken. Cherry Creek School v. Voelker, 859 P.2d 805 (Colo. 1993).
-- Computerized legal research costs are awardable if: (1) the client is billed for the computerized legal research separately from attorneys’ fees; (2) the computerized legal research was necessary; and (3) the costs requested for the computerized legal research are reasonable. See Roget v. Grand Pontiac, Inc., 5 P.3d 341, 348-49 (Colo. App. 1999). If these requirements are met, the Court may award costs for computerized legal research. Pueblo Bancorporation v. Lindoe, Inc., 37 P.3d 492, 500 (Colo. App. 2001), aff’d 63 P.3d 353 (Colo. 2003).
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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC.
This post is part of my Coloradolitigation checklist approach to litigation knowledge management and litigation strategy.
Checklist:
- Timing: Bill of Costs must be filed within 15 days “of the entry of order or judgment, or within such greater time as the court may allow.” C.R.C.P. 121 Section 1-22(1)
- Confer with opposing party (party to be taxed) per C.R.C.P. 121 Section 1-15(8). Include affidavit from attorney stating that costs to be taxed are reasonable and necessary solely for the purpose of this litigation.
- Include invoices/bills reflecting costs to be taxed were actually billed to client.
- Include a proposed order.
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Thoughts & Best Practices:
- Consider negotiating a release of right to appeal in exchange for not seeking Bill of Costs; file motion for extension of 15 day deadline to file Bill of Costs if negotiations require more time.
- Bill of costs should be styled a “Bill of Costs and Motion to Approve Bill of Costs.”
- Review C.R.S. 13-16-122 (list of allowable costs) and case law (below) at outset of case to ensure that costs are being billed in a recoverable manner. Statements that applicable requirements are met should be included in affidavit and referenced in motion:
-- Copying expenses incurred for use in this case are recoverable under C.R.S. § 13 16-122(1)(f). See Nguyen v. Regional Transp. Dist., 987 P.2d 933, 936 (Colo. App. 1999); Harvey v. Farmers Ins. Exch., 983 P.2d 34, 41 (Colo. App. 1998) (within court’s discretion to award photocopying charges incurred solely for benefit of particular litigation)
-- Reasonable telephone expenses are properly awarded as costs. Harvey, 983 P.2d at 41-42 (allowing costs for long-distance telephone calls because calls were not commingled with any of the general costs of doing business or the costs of other litigation).
-- Delivery charges also are awardable as costs. See Harvey, 983 P.2d at 41 (court acted within its discretion when awarding delivery costs incurred solely for the benefit of the particular litigation).
-- Pursuant to C.R.S. § 13-16-122(1)(a) docket fees are recoverable as costs.
-- A court reporter’s fee is awardable under C.R.S. § 13-16-122(1)(d), as well as the costs associated with depositions which are needed in order to develop a defense “in light of the facts known to counsel at the time” the depositions were taken. Cherry Creek School v. Voelker, 859 P.2d 805 (Colo. 1993).
-- Computerized legal research costs are awardable if: (1) the client is billed for the computerized legal research separately from attorneys’ fees; (2) the computerized legal research was necessary; and (3) the costs requested for the computerized legal research are reasonable. See Roget v. Grand Pontiac, Inc., 5 P.3d 341, 348-49 (Colo. App. 1999). If these requirements are met, the Court may award costs for computerized legal research. Pueblo Bancorporation v. Lindoe, Inc., 37 P.3d 492, 500 (Colo. App. 2001), aff’d 63 P.3d 353 (Colo. 2003).
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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC.
This post is part of my Coloradolitigation checklist approach to litigation knowledge management and litigation strategy.
Tuesday, June 01, 2010
Discovery Plan (Litigation Checklist)
This discovery plan is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. Discovery is possibly the most frustrating, tedious, expensive, and time consuming part of the litigation process. It is also among the most important. It’s my sense that discovery is usually put off, delegated to the lowest possible level, or otherwise neglected. I think this presents a huge opportunity, as the party that properly develops a discovery plan and invests the time up-front to prepare for and execute that plan will generally enjoy a significant advantage. Below is my stock discovery plan, though this plan itself should be periodically evaluated and modified to best meet the needs of each individual case:
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Discovery Plan:
- Send litigation hold letter to client
- Identify evidence required for all elements of each claim, defense, and damages (as viewed from all sides of the case)
- Identify evidence on both sides that will require expert opinion, and develop Expert Discovery Plan
- Identify/brainstorm document and witness sources (known/potential/unknown) of each element of evidence required—this, along with information bearing on witness credibility, should identify the general scope of “Relevant Information” in the case.
- Discuss and set timeline for collection of all Relevant Information with client
- Discuss and set timeline/extension of time for filing initial disclosures, documents, necessity of a protective order, and exchange of privilege logs with opposing party as appropriate
- Consider using a modified Case Management Order to streamline or better organize discovery. Negotiate stipulated modified case management order if possible, consider filing disputed modified case management order if appropriate.
- File proposed/stipulated protective order
- Conduct initial interview, as well as follow-on interviews with client/employees about knowledge of Relevant Information and location/nature of documents
- Bates label documents received from client
- Conduct single review of documents for:
-- (1) Privileged and work product documents
-- (2) Relevance
-- (3) Index documents by which element of claim, defense, damages, or credibility to which they pertain (i.e. document either relates to element, damages, or credibility or is not relevant)
- Make privilege log
- File initial disclosures
-- Motion to compel initial disclosures
- Identify non-parties that may have Relevant Information
- Interview non-parties regarding Relevant Information
- Issue subpoenas duces tecum to non-parties re: Relevant Information
-- Motion to quash subpoena
- Review opposing party’s initial disclosures and index by which element of claim, damages, or credibility to which they pertain
- Identify holes in Relevant Information and determine whether written discovery, depositions, or both will be used to address holes
- Identify what additional Relevant Information will be needed before trial in support or defense of motions for summary judgment, etc.
- Identify evidentiary issues regarding Relevant Information, make plans to develop needed foundation in discovery or prepare necessary objections to discovery
- Identify ideal order of discovery (i.e. which written discovery request do you want before certain depositions or vice versa, which discovery disputes need to be resolved before certain depositions, timing and nature of 30(b)(6) deposition, etc.)
- Confer with opposing party on depositions and availability of deponents
- Written discovery requests
-- Interrogatories
-- Requests for Production
-- Requests for Admission
-- Requests for Admission of Genuineness
- Responding to discovery requests
- Deciding whether to take video depositions
- When to consider depositions on written questions
- Notice depositions
- Notice 30(b)(6) deposition & “Exhibit A”
- Taking depositions
- Taking 30(b)(6) depositions
- Defending depositions
- Defending 30(b)(6) depositions
- Deposition objections & disputes
- Verification & corrections
- Continually update Relevant Information Index as discovery proceeds
- Discovery disputes
- Motion to Compel
- Motion for In Camera Examination
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Best Practices:
- Invest time up-front in developing a discovery plan and in following through on that plan—time spent on discovery early is generally a good investment.
[checklists and best practices for each of the steps in the discovery process can be found at the individual links above]
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.
-
Discovery Plan:
- Send litigation hold letter to client
- Identify evidence required for all elements of each claim, defense, and damages (as viewed from all sides of the case)
- Identify evidence on both sides that will require expert opinion, and develop Expert Discovery Plan
- Identify/brainstorm document and witness sources (known/potential/unknown) of each element of evidence required—this, along with information bearing on witness credibility, should identify the general scope of “Relevant Information” in the case.
- Discuss and set timeline for collection of all Relevant Information with client
- Discuss and set timeline/extension of time for filing initial disclosures, documents, necessity of a protective order, and exchange of privilege logs with opposing party as appropriate
- Consider using a modified Case Management Order to streamline or better organize discovery. Negotiate stipulated modified case management order if possible, consider filing disputed modified case management order if appropriate.
- File proposed/stipulated protective order
- Conduct initial interview, as well as follow-on interviews with client/employees about knowledge of Relevant Information and location/nature of documents
- Bates label documents received from client
- Conduct single review of documents for:
-- (1) Privileged and work product documents
-- (2) Relevance
-- (3) Index documents by which element of claim, defense, damages, or credibility to which they pertain (i.e. document either relates to element, damages, or credibility or is not relevant)
- Make privilege log
- File initial disclosures
-- Motion to compel initial disclosures
- Identify non-parties that may have Relevant Information
- Interview non-parties regarding Relevant Information
- Issue subpoenas duces tecum to non-parties re: Relevant Information
-- Motion to quash subpoena
- Review opposing party’s initial disclosures and index by which element of claim, damages, or credibility to which they pertain
- Identify holes in Relevant Information and determine whether written discovery, depositions, or both will be used to address holes
- Identify what additional Relevant Information will be needed before trial in support or defense of motions for summary judgment, etc.
- Identify evidentiary issues regarding Relevant Information, make plans to develop needed foundation in discovery or prepare necessary objections to discovery
- Identify ideal order of discovery (i.e. which written discovery request do you want before certain depositions or vice versa, which discovery disputes need to be resolved before certain depositions, timing and nature of 30(b)(6) deposition, etc.)
- Confer with opposing party on depositions and availability of deponents
- Written discovery requests
-- Interrogatories
-- Requests for Production
-- Requests for Admission
-- Requests for Admission of Genuineness
- Responding to discovery requests
- Deciding whether to take video depositions
- When to consider depositions on written questions
- Notice depositions
- Notice 30(b)(6) deposition & “Exhibit A”
- Taking depositions
- Taking 30(b)(6) depositions
- Defending depositions
- Defending 30(b)(6) depositions
- Deposition objections & disputes
- Verification & corrections
- Continually update Relevant Information Index as discovery proceeds
- Discovery disputes
- Motion to Compel
- Motion for In Camera Examination
-
Best Practices:
- Invest time up-front in developing a discovery plan and in following through on that plan—time spent on discovery early is generally a good investment.
[checklists and best practices for each of the steps in the discovery process can be found at the individual links above]
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Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
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This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.
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