Author: David S. Casey Jr.

A variety of weapons in a trial lawyer’s arsenal can help clinch a case before trial. Assessing the economic risk of trial is vital, as is creating a defense expectation that settlement is unlikely. Putting together a good discovery plan from the get-go is also important, because doing so is cost-effective and helps ensure optimal results.

Some tips for winning a case before trial include:

Hire fill-time investigators

A good investigator will thoroughly research a case before bringing suit. An investigation initiated at the beginning of a case places counsel in a far stronger position from the outset.

Work closely with investigators to identify factors that could bring a defendant’s actions within the scope of employment.

Keep defendants in the case

Identify all potential defendants early in the case. The absence of a critical defendant can ensure that you will not clinch the case before trial.

If the defendants know they will be forced to point the finger of responsibility at each other, they will be more interested in resolving the case before trial. As a general rule, keep all defendants in the litigation so that there is a truly adversarial atmosphere among the defendants at trial.

Forcing defendants to point fingers

Have the defendants indict themselves. To accomplish this, serve interrogatories on all defendants, pointedly asking each of them what facts place responsibility on the other defendants.

Assess the most damaging facts against each defendant, and use discovery to force an acknowledgement of the other defendants’ culpability. An adversarial environment is key to increasing the pressure among defendants and resolving the case.

Outwitting the experts

Under California law, a corporation or government entity can be compelled to produce the person from within its ranks who is the best expert in any given area.

If you destroy the integrity of a defense expert, defense counsel will usually begin to think about a settlement. However, this requires a great deal of work. Before taking a defense expert’s deposition, review the jury instructions the judge will read when instructing the panel on how to evaluate an expert.

With most jury instructions, the basis of the expert’s opinion is critical, as is comparing competing experts. If you have damaged the expert’s credibility either way at deposition, defense counsel will feel increased pressure to resolve the case.

Conducting background investigations

Thoroughly investigate the plaintiff’s background. Many lawyers have prepared cases all the way to trial only to watch helplessly as an undiscovered by damaging aspect of the plaintiff’s past surfaces.

Clinching the case before trial involves getting the desired result for the plaintiff and not being forced to settle on unfavorable terms. to achieve this, obtain all prior medical histories, employment histories and applications for health or life insurance before the plaintiff is deposed.

What type of witness does the plaintiff make?

The question is vital, because how a jury feels about the plaintiff often has a dramatic impact on the verdict and the defense evaluation.

Given the enormous impact that a plaintiff’s deposition can have on case resolution, it is important to take the time to fully prepare your client to ensure a positive outcome. Have a client come in before the deposition date and watch a videotape explaining the basic rules, then discuss potential problem areas the firm foresees at deposition. Research the client’s personal history, and review medical and employment histories to identify any other problem areas.

Handling objections

Conducting an effective deposition takes work. When preparing a case for trial, plaintiff counsel may occasionally run into aggressive litigators who try to interfere with the deposition to make it ineffective for use during trial. The breadth of discovery is usually sufficiently broad to allow questions that may lead to the discovery of potentially relevant information.

Make sure questions are properly asked and make sure they are answered

If opposing counsel states a speaking objection on the record, ignore it and tell the deponent to answer the question. Avoid engaging defense counsel verbally on the record.

Finding the right mediator

Select a good mediator. It is critical to find someone who has a fair and impartial record on both sides, because doing so increases the chance of resolution. A good mediator will develop a rapport with a plaintiff that encourages mutual trust. When case evaluations are made, the plaintiff is often more accepting of a reasonable settlement offer.

Ensuring client satisfaction

Clinching a case before trial is not always a win-win situation. A plaintiff counsel may consider the result outstanding, but the client may be dissatisfied. Often when this occurs, counsel has failed to spend the necessary time with the client.

A client is best served and representation is most satisfying when plaintiff counsel believes in a client’s case. Obtaining a result before trial requires acting in the best tradition of the adversarial process by being aggressive, methodical and thorough.