Defense Counsel Toolkit: Sharpening Your Discovery and Motion Practice Knife
By Steven N. Joseph
(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)
Thrive and Survive. A few weeks ago, Michael Young of Hepler Broom posed the question on what makes Claims Adjusters and In-House Counsel crazy. I did not address the many things that does, but wrote on how to focus the handling of your case to bring a bit more happiness for the insurance client or in-house counsel and how that becomes a reward that brings happiness to you as well.
This article focuses on the little things that might go unnoticed by the claims professional or in-house counsel, but by making a subtle shift, you will get noticed as an attorney who separates him or herself from the pack, and it could also make a significant impact on the outcome of a case.
Let me give you a very typical situation. A lawsuit is filed against an insured and it is submitted to the insurance carrier. Many times, in a professional liability setting in particular, the insured sends in the complaint with hand written notations on the side of many of the allegations. Usually, these hand written notations are hard to make out, but typically, the scribble is something along the lines of “no way!!” or “not true” or “absolutely ridiculous”.
The insurance representative contacts the insured, and we learn that the insured vehemently rejects all of the allegations. The case is assigned to defense counsel, and defense counsel submits an initial evaluation and litigation plan. Defense counsel is of the opinion that liability is questionable, and the initial strategy is to file interrogatories and request for production of documents, and then proceed to depose the plaintiff after receiving the answers to discovery.
This is factory work. The case just proceeds through the basic steps until everything becomes gray and confused inside the litigation sausage, and once the sausage is made, the case gets resolved.
However, this is not the way every case should be handled. I started my career working in a plaintiff’s personal injury law firm. While many defense counsel sees many plaintiff lawyers as being lazy (and some may be), it was my experience working on the plaintiff side that when we got interrogatories, that was a cause for celebration.
I can’t tell you how many times that we had a case and the statute of limitations was a serious issue. The question was when did the plaintiff discover the injury. One answer puts you outside the time period, and the claim would be barred. A different answer would put you within the time period, and the claim can proceed.
So, we would get interrogatories. Amazingly, every single time this was an issue, we got an interrogatory on when the “discovery” occurred. In preparing the answers for our client, we made sure we gave the right answer, and the case proceeded.
The other benefit for the plaintiff’s counsel is that it gives the plaintiff an opportunity to see the kind of questions that will be asked in his or her deposition. It literally became a script for the deposition.
Sometimes, on the insurance claims side, defense counsel sends a report on the plaintiff’s deposition and makes the comment that the plaintiff was very well prepared. However, defense counsel unwittingly was part of the reason that the plaintiff was very well prepared. The plaintiff studied the script!
We see many complaints that is drafted in a way that overstates the plaintiff’s claims. I have seen many good defense counsel, instead of doing the usual, and go about issuing rote interrogatories, take the plaintiff’s deposition cold. It gets noticed right after the answer gets filed. The plaintiff has only the complaint that was filed as the script. The plaintiff signed an affidavit that everything plead in the complaint is true. By taking the plaintiff’s deposition without the script, the plaintiff can contradict what was plead in the complaint. So, which it true – the allegations made in the complaint, or the testimony given in the deposition.
You have now taken a bite out of the plaintiff’s case by calling his or her credibility into question.
Another tool in defense counsel’s tool box that is underutilized is the “Request for Admissions”. Now, there may be a valid reason not to file them because the answers themselves may create a question of fact that defense counsel wants to avoid if the plan is to file a summary judgment motion.
If this is not an issue that is of concern, the Requests for Admissions should be utilized, and can be effectively implemented (sometimes right after the plaintiff made a number of admissions in deposition you took right after the answer was filed).
Do not think that I am saying this because my expectation is that the plaintiff’s attorney will admit to everything, and the case will then magically go away. I even expect that, for the most part, the Request for Admissions will either be objected to or denied. However, part of litigation is to create the psychology of the litigation. If your side issues a number of Request for Admissions on the plaintiff, the hope and expectation is that this document will be forwarded to the plaintiff. If the plaintiff believes that the case is a strong one, the Request for Admissions can be an opportunity to create some doubt in this position. If the case ultimately gets resolved on some compromised monetary basis, the doubt created can result in a more beneficial result for the defense client – something that makes greater business sense.
We have now reached the close of discovery and defense counsel recommends that we file a motion for summary judgment. Defense counsel even gives the opinion that there is a strong chance that it will be granted.
It’s a “no-brainer”! We instruct defense counsel to go ahead and file the summary judgment motion, and of course, it gets denied. Defense counsel never gives the reason that motion was denied was because the motion was bad. The motion was superb. The brief was amazing. Like reading Shakespeare! But….unfortunately, the Judge just not grant any motions for summary judgment. In fact, it is the Judge’s reputation that he does not grant them.
So, I am not going to go where you think I am going. Why did defense counsel recommend the motion in the first place?
Yes. That is the question. But, I am not bothered by that. Quite frankly, I believe the fact that you can file a motion for summary judgment, win or lose, states a belief that the other side’s case is weak. So, even if you lose, we do not abandon the position of a weak case on the other side.
My issue is the drafting. I had the privilege of spending a summer during law school clerking for the Honorable Gustave Diamond in Federal Court in the Western District of Pennsylvania. My job, as a summer intern, was review the briefs and check case citations. But, Judge Diamond always made a comment that stuck with me. He said “If I can’t see why the party bringing the motion believes they will win in the first paragraph of the brief; it is very unlikely that the motion will be granted.”
It is a very plain common sense rule. Think about it. If it takes you till page 14 of the brief to say why you think you are right, and the other side can say that clearly on page 1, who will have the advantage?
The claims professional or in-house counsel may not be this savvy, but they do read the briefs. They will feel a lot more comfortable, even when the motion is denied, when they get what they agreed to pay for on page 1 as opposed to page 14.
Thurvival. Thrive and Survive. If you do the same thing that everyone else is doing, you will just blend in and at the end of the day, you may survive just like everyone else. But, if you take these common sense steps, you may make a big difference for your client’s case, and you will get noticed.
Isn’t Thurvival much better than just Survival?
