2. What Every New Attorney Needs to Know About the Life of a Civil Lawsuit
Part I: Overview of a civil suit &
Plaintiff’s vs Defendant’s Case
Professor Steven P. Byrne ’ Professor Don G. Forgey ’77
Byrne & Associates Lewis Brisbois Bisgaard & Smith
Part II: Meeting your client –
the intake interview
Professor Reagan E. Boyce ‘06
Brutzkus Gubner Rozansky Seror Weber LLP

3. Civil Lawsuit Overview

4. The “Parts” of a Civil Lawsuit
The Intake interview – meeting the client [Tonight]
Starting the Lawsuit: PLEADINGS & MOTIONS [Week 3]
Discovery [Weeks 4, 5 & 6 ]
Alternative Dispute Resolution [Week 8]
Trial [Weeks 7 & 9]

5. Civil Litigation in State Court
See Civil Lawsuit Timeline

6. Plaintiff’s Case
Professor Steven P. Byrne
AKA “Counsel for Plaintiff”

7. Planning, Drafting and Filing Complaints and Responsive Pleadings
Plaintiff’s Case
Planning, Drafting and Filing Complaints and Responsive Pleadings
Plaintiff’s Case –
Development of a Theme of the Case – What is your case about?
Consider available causes of action
What facts are favorable to each cause of action?
What facts are unfavorable?
Is your theory supported by the law?
Complete your legal research prior to preparing pleadings.
Review authority that supports your opponent’s claim.
Consider Jury instructions as a guide.
Ethical/Professional responsibility.

8. 3) Evidence in support of your case.
Identify witnesses as soon as you can.
Identify documents and other tangible evidence available.
Identify evidentiary issues which could be problematic.
(e.g. inadmissable or illegally obtained evidence)
4) Anticipate possible defenses to your client’s claim
Evidence in support of each defense
Can you do or say anything to defeat the defense?
5) Government Claim
Action against public entity. Determine whether the claim is one for which a written claim must be presented to a public entity before maintaining action [Gov. Code , 945.4].

9. 6) Proper Court
Jurisdiction
Limited Jurisdiction Court.
Unlimited Jurisdiction.
Venue - Proper court (location) in which to file.
Court realignment in Los Angeles County
All Personal injury cases are filed in Central or
Unlawful Detainer (evictions) in hub courts
Probate in Central
Who is your audience?
Jury trial or a court trial.
Do you need to humanize your client or dehumanize your opponent (Is your client an individual or a corporation - why this may matter)

10. Preparation of the Complaint
Contents
a. Capacity of plaintiff [CCP ].
b. Residence (generally optional)
[CC , ; CCP ].
Name, capacity, and residence of defendants
d. Fictitious name allegations, if appropriate [see CCP 474].
e. Agency allegations, if appropriate.
Other facts showing proper venue, if required
[CCP 396a].
g. Facts constituting cause of action [CCP (a)].

11. h. Prayer for relief [CCP 425.10(b)].
i. Joinder of other causes of action of plaintiff or of co-plaintiffs with cause of action against defendant(s) [CCP (a)].
Joinder of parties.
Permissive.
Plaintiffs. [CCP 378(a)].
Defendants.[CCP 379(a)].
Compulsory.
Persons required as parties [CCP 389(a)].
Reluctant co-plaintiff [CCP 382].

12. Drafting the Complaint.
Mandatory format requirements [Cal. Rules of Ct. 201]
Traditional (non-form pleading)
Judicial Council Form Pleadings
Attachments - Causes of Action
Contract
Personal Injury, Property Damage, Wrongful Death
Unlawful Detainer

13. 3. Signing. The Complaint must be signed by the attorney of record
3. Signing. The Complaint must be signed by the attorney of record. [CCP 128.7]
4. Verification. Not always required. By affidavit or declaration if verification is required or desired [CCP 2009, ].
Execution of verification [CCP 446]:
Individual plaintiff
Authorized officer if the plaintiff is not an individual.
By Counsel if plaintiff is not in the county in which counsel has offices or is unable to verify it or when facts are within attorney's knowledge.

14. 5. Additional documents required to be filed with the Complaint
Summons - Judicial Council form is required. [Gov Code 68511; Cal. Rules of Ct 982]. Original for issuance by Court Clerk and copies to conform
Civil Case Cover Sheet
Addendum to Civil Case Cover Sheet
Alternative Dispute Resolution (ADR) forms
Certificate of merit [claim for professional negligence of architect, engineer, or land surveyor [CCP (a)].
Notice of Related Cases, if any. [Ca. Rules of Ct., Rule 804(a)]
Cover sheets or other papers required by local court rule.

15. How many copies should you make?
6. Copies of Pleadings.
How many copies should you make?
Original for filing.
Copy for service on each defendant.
Copy for office file.
Copy for client
Additional copies as desired.

16. 7. Filing Complaint
Most lawyers use an Attorney Service.
Select the court with proper venue and subject matter jurisdiction. See Section 1A(6) above.
Deliver Summons, Complaint and related papers to court clerk filing window Fax filing, Electronic Filing
Pay filing fee [Gov. Code , ]

17. Service on Defendants–
Most lawyers use a Registered process server with an attorney service or the County Sheriff.
Have a conformed copy of the summons served on each defendant, together with a copy of the complaint and all other documents [CCP ].
Proof of Service. The person who served the pleadings must prepare and file a separate declaration of service for each defendant [CCP et seq.]
A Party to the action may not serve the pleadings.

18. Default –
If a defendant fails to respond in a timely manner.
Request for entry of default. [CCP 585].
Declarations in support of entry of judgment [CCP 585].

19. Defendant’s Case
Professor Don G. Forgey
AKA “Counsel for Defendant”

20. Defendant’s Case –
Development of a theme to counter Plaintiff’s theme.
Review the claims asserted
What facts support each cause of action?
What facts are unfavorable?
Is your theory (i.e. defense) supported by the law?
Complete your legal research prior to preparing pleadings
Review authority that supports your opponent's claim
Consult Jury instructions as a guide

21. Evidence in support of your case
Identify witnesses as soon as you can
Identify documents and other tangible evidence available
Identify evidentiary issues which could be problematic
Evaluate the possible defenses your client has to the claim
Evidence in support of each defense
Can the Plaintiff do or say anything to defeat that defense

22. 5) Government Claim
Action against public entity. Determine
whether the claim is one for which a
written claim must be presented to a
public entity before maintaining action
[Gov. Code , 945.4].
Improper Court
Jurisdiction
Limited Jurisdiction Court
Unlimited Jurisdiction
Venue - inconvenient forum [CCP 396, 397]

23. 7) Delay in prosecution
Statutes of Limitations
Failure to serve in a timely manner
[CCP 583 et sec]
8) Who is your audience?
Jury trial or a court trial.
Do you need to humanize your client or dehumanize your opponent (is your client an individual or a corporation - why this may matter)

24. Defendant’s Initial Pleadings
Answer
Traditional format or Judicial Council form pleading
Judicial Council
Contract
Personal Injury, Property Damage, Wrongful Death
Unlawful Detainer
Affirmative Defenses (Appendix 2)
Prayer for Relief

25. Demurrer - Defect in Complaint
Lack of subject matter jurisdiction
[CCP (a)]
Failure to state sufficient facts
[CCP (e)]
Uncertain pleading [CCP (f)]
Other grounds
Motion to Strike [CCP ]

26. Motion to transfer to proper court [CCP 396b]
Petition to Compel Arbitration [CCP ]
Cross-Complaint (State) or Counter Claim (Fed)
Compulsory [CCP (a)]
Permissive
Third Party Claims (Indemnification, Contribution)

28. Meeting your Client for the First Time
The Intake Interview
Professor Reagan E. Boyce’06
Brutzkus Gubner Rozansky Seror Weber LLP

29. Client Intake Checklist
Client’s full name
Client’s contact information:
Address
Work phone
Home phone
Fax
Mobile
Note: Ask Client what would be their preferred method of communication and whether there is anyone else who needs to be in the reporting loop. Caution: Be careful to maintain the attorney-client communication privilege.
Note: Good idea to confirm potential client’s identity by asking for some form of picture identification such as a CDL or Passport.

30. Client Intake Checklist
Names of potential adverse parties and their contact information.

31. Client Intake Checklist
Brief description of the nature of dispute, issue or request for legal services

32. Client Intake Checklist
What is the prospective client’s objective and can it realistically be obtained?
Note: If the objective is unlikely to be achieved, is this a client you really want?

33. Client Intake Checklist
Is there an urgency? When does the matter need to be addressed and how?

34. Client Intake Checklist
Client documents needed:
Correspondence, s, fax transmissions
Agreements/contracts/warranties
Photographs
Plans and specifications
Insurance policies
Medical records/lab reports/x-ray films
Law enforcement reports, such as Traffic Collision Report, Arrest Report, Vehicle Inspection Report.
Note: If the prospective client did not bring all of the relevant documents to the initial interview, when will they be provided?

35. Client Intake Checklist
Have any other attorneys
been involved?
If so, obtain their names, the identity of the
potential party they represent, and pertinent
contact information

36. Client Intake Checklist
Fee arrangement:
Deposit
Hourly rates
Attorneys
Partners
Associates
Paralegals
Administrative
Contingency
Mixed
How will costs be handled?

37. Client Intake Checklist
Fee Agreement:
When will it be prepared, signed and returned to attorney?  
Note: Be careful to advise potential client that representation does not start until the signed fee agreement has been received.

38. Client Intake Checklist
Reporting requirements:
When (e.g.; monthly, quarterly, after important developments)
What should be reported
Summary of current facts
Procedural developments
Next steps
Budget
Objectives
Recommendations
Method of reporting (e.g.; formal letter, , telephone call)

39. Written Fee Agreements

40. Written Fee Agreements
Hourly litigation matters
Required for services over $1000
Client must be provide with a duplicate copy of the fully executed agreement
Basis for compensation must be set out
Responsibilities of attorney
Responsibilities of client
Failure to comply with above renders agreement voidable at option of client. Thereafter, attorney entitled to a “reasonable” fee.
Hourly non-litigation matters (Note: Subject to same above requirements as hourly litigation matters.)

41. Written Fee Agreements
Contingency cases
Same requirements as hourly matters
Plus, a statement of the contingency fee amount, an explanation as to how disbursements and costs will affect the contingency fee and client’s recovery, and an explanation of how related matters are to be compensated that are not part of the contingency agreement.
Flat-rate projects

42. Written Fee Agreements
No malpractice insurance. Attorney must inform the client in writing if the representation will exceed 4 hours.
Fee Agreements are examined in light most favorable to client because the Attorney-Client relationship is a fiduciary relationship.
Fee Agreement must be signed by both the attorney and the client.
Standard fees, rates and charges should be set-out clearly and enumerated in detail. Be over inclusive here.
Surcharges and mark-up may be ethical issues.

43. Written Fee Agreements
Fee Agreements must disclose nature of the duties and services to be performed by attorney.
Billings must state amount, rate and basis for attorney fees and costs (e.g.; 2.0 hours at $300/hour was spent on a particular project such as drafting of a proposed complaint). A bill for “services rendered” is not sufficient.
Information in a Fee Agreement is to be both a detailed disclosure and set forth in an understandable format.
Always take the time to explain the terms of the agreement to and determine that the client understands its terms.

44. Who is the Client?

45. Client Communications Who the client is will determine how communication happens

46. Do’s and Don’ts of Client Communications
- Importance of responding to the client
Never fail to return a call or
Work out a system with your secretary, receptionist, assistant for managing client communications

47. How do you address the client?
Who is allowed to communicate with the client
Verify who is signing the letter, progress report, etc.
communications, sending letter in pdf attachment, not Word document
Letter communications
Person to person or telephone communications

48. Corporate vs. Private Client Communications

49. Progress Reports Letter versus Formal Report
Corporate Client minimum reporting requirements
SAMPLE REPORT TO CORPORATE CLIENT

50. OUTLINE FOR REPORT TO CLIENT AND INSURANCE COMPANY PROVIDING DEFENSE

51. Client/Insurance Company Report
Executive Summary
Condensed high level review of relevant facts, procedural status, liability assessment and itemization of damages claimed.

52. Client/Insurance Company Report
Detailed Summary of Case Facts
Much more in depth recitation of the facts of the case as known on the date of the report.

53. Client/Insurance Company Report
Procedural Status of Case
Detailed chronology and description of the pleadings filed to date and the dates on which they were filed.

54. Client/Insurance Company Report
Discovery Plan
When will the following be commenced and completed:
Interrogatories;
Document Productions, including SDTs to non-party witnesses;
Request for Admissions;
Depositions, including parties and non-party witnesses;
Defense medical examinations;
Site inspections.

55. Client/Insurance Company Report
Court and Jurisdiction
Explanation of where the case is filed and why.

56. Client/Insurance Company Report
Parties
Plaintiffs;
Defendants;
Others who may be responsible but are not yet named parties.

57. Client/Insurance Company Report
Trial Judge
Identification of the judge who is likely to preside over the trial of the action, including:
Educational background
Experience prior to becoming a judge
Date of appointment or election
Previous experience with this judge

58. Client/Insurance Company Report
Plaintiff’s Counsel and Firm
Identify the attorney who is likely to be lead trial counsel for the action, including educational background, prior experience with cases of this type, success rate, and any previous experience with this attorney.
Defense Counsel Who Will Try this Case Describe background and experience.

59. Client/Insurance Company Report
Analysis of Complaint and Causes of Action
Review law applicable to each cause of action and the facts necessary to establish the claim.

60. Client/Insurance Company Report
Liability Analysis
Assess the likelihood of prevailing against the claims of plaintiff and any cross-complaints versus other persons or entities (e.g.; indemnity claims, express or equitable).

61. Client/Insurance Company Report
Damages Analysis
Evaluate the value of this case, including:
An assessment of injuries to plaintiff
Monetary losses such as loss of income
Medical expenses past and future
Residual long-term deficits
General damages
Punitive damages
Any liens in existence

62. Client/Insurance Company Report
Trial Strategy
Assessment of themes of the case and its presentation from the perspective of both plaintiff and defendant,
identification of expected witnesses (lay and experts),
documentary evidence needed,
motions in limine,

63. Client/Insurance Company Report
jury instructions,
verdict forms,
jury verdict research results,
joint and several exposure potential,
desirability of having appellate counsel attend trial.

64. Client/Insurance Company Report
Settlement Potential
What is the current status of any settlement discussions? Is there a mediation conference or other form of ADR set or anticipated? If so, when, where, who will attend and who with preside over conference.

65. Client/Insurance Company Report
Anticipated Outcome
Duration of trial;
Estimated cost through trial;
Likelihood of a favorable verdict.

66. First Impression - Body language?
Handshake, firm
Eye contact
Tone of voice
Dealing with difference in age between you and the client

67. Managing Client Expectations

68. Document your Client Communications
Always send a written letter confirming strategy, advice on course of action, client decision on course of action, decisions regarding settlement decisions
If you recommend a course of action, send a confirming letter
Keep record of communications

69. Dealing with Difficult Clients
Ending the client relationship
Refusing to take a case

70. HANDOUTS SAMPLE WRITTEN FEE AGREEMENT SAMPLE INTAKE QUESTIONNAIRE
OUTLINE FOR CORPORATE CLIENT PROGRESS REPORTS
CASE EVALUATION REPORT
“POWER POSES” IDENTIFIED

71. Sleazy vs Leadfoot The Intake Interviews

72. Intake Interview Exercise
Leadfoot
FILMS