F A L L 2 0 1 6I N T E R N A T I O N A L S O C I E T Y O F P R I M E R U S L A W F I R M S

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10 T H E P R I M E R U S P A R A D I G M

Proactive Defense Litigation: Tactics to Employ for Early ResolutionThe approach to civil litigation by the defense industry as a whole is cyclical; however, it has and always will remain a results-oriented practice. With the infusion of litigation monitoring software over the past decade, the claims climate has changed. The three primary factors that corporations consider when faced with ligitation are as follows:

1. End result;

2. Costs incurred;

3. Timeliness of the process.

With the above factors in mind, the general counsel looks for the seasoned defense attorney to quickly implement several practical strategies to quickly achieve the best results. This article outlines some initial tactics and methods that can be utilized by in-house or outside counsel. Many litigators and trial attorneys have been trained over the past 30 years to “bunker down” in battle and to win at all costs in defending clients in lengthy litigation proceedings. Sometimes that approach is necessary and effective, depending upon the type of case involved and the parties’ appetite for a trial. However, with routine cases, corporations do not want their lawyers to win a battle but to “lose the war” when it comes to excessive defense costs and protracted litigation. The “bunker down” approach to litigation is usually disfavored. Immediate and proactive strategic planning must be implemented upon the initial review of the claim. The end result of concluding litigation at a low reasonable cost is not likely when the litigation approach is reactive as opposed to proactive.

Identifying Personal IssuesUpon an initial assignment, the initial steps are vital. Early identification of personal issues pertaining to the plaintiff can provide the roadmap for the initial litigation strategy. One of the best initial tools is often Google or other search engines. The following issues should be explored during the initial pleading stage, especially before the plaintiff’s attorney starts advising his or her client

to remove or privatize information as party depositions become scheduled.

A. Family Life and Background: Discover whether there are resident relatives of plaintiff, where do her children or spouse (possibly former spouse) reside, are in-laws involved with plaintiff on a day to day basis?

B. Employment: Find out where, and for whom, does plaintiff work, who are the prior employers, what are the patterns in terms of departures from employment.

C. Co-Workers and Supervisors: Identify any co-workers, supervisors, or prior supervisors.

D. Social Media: Research all public postings by plaintiff, family members and employers. Social media posts often contain photos of plaintiff before and after an incident.

E. Criminal Searches: Conduct criminal background searches immediately through government sponsored sites so that information is obtained before any depositions are conducted.

F. Medical Providers: If plaintiff’s attorney has forwarded medical records on a pre-litigation basis to the insurance carrier, conduct general searches on the treating physicians and surgeons.

Sample Case StudyThe following is a sample fact pattern for consideration:

Plaintiff is a 68-year-old widow who resides in Bronx County, New York, in an apartment with her son, her

Nor th Amer i ca – Un i t ed S ta tes

Thomas J. Dargan is a partner with Lewis

Johs Avallone Aviles, LLP. His practice focuses

on the representation of commercial clients in

transportation law and complex civil litigation.

He defends numerous corporate and commercial

clients in state and federal courts involving

commercial litigation and casualty defense

litigation, including catastrophic trucking

accidents, construction accidents, employment

matters, products liability, dram shop actions and

premises security.

Lewis Johs Avallone Aviles LLPOne CA Plaza, Suite 225Islandia, New York 11749

631.240.0486 Phone631.755.0117 Fax

lewisjohs.comtjdargan@lewisjohs.com

Thomas J. Dargan

F A L L 2 0 1 6 11

daughter-in-law and her two-year-old grandson. She is claiming neck, back, right shoulder and right knee injuries as a result of a light impact, hit-in-the-rear motor vehicle accident between defendant’s box truck and plaintiff’s Toyota Camry. She was treated and released the same day from the ER and missed an initial three months from work as a cashier at the local supermarket. She missed another three months from work after arthroscopic knee surgery was performed to repair an allegedly torn medial meniscus. The surgery was performed by Dr. X, a ubiquitous presence in litigation circles.

Upon assignment, the defendant must quickly identify proximate cause as his or her primary defense to damages. An agreed upon plan must be established. It is agreed that a thorough informal search upon plaintiff and her family is in order and the following information is obtained:

A. Plaintiff’s son and daughter-in-law are working young parents and they have a two-year-old son residing in the same apartment with plaintiff. The daughter-in-law commutes to Manhattan from the Bronx as a marketing executive with a major broadcasting company. The son is a local carpenter.

B. Plaintiff works for a local supermarket chain that has a company Facebook page and several blurbs/photos regarding the employees of the month and their company gatherings.

C. The long-time manager of the supermarket is easily identified during a Google search regarding the supermarket.

D. Plaintiff is not active on any social media platforms; however, a quick search on plaintiff’s son reveals that he is very active on Facebook and posts photographs almost daily. Several photos of the plaintiff are seen during the initial brief search.

E. Dr. X, the orthopedic surgeon who performed ambulatory surgery on the plaintiff 11 months following the accident, was the subject of a fraud investigation several years prior to the accident.

What should the defendant attorney do with said information? A strategy conference call should be held. An under-utilized tool by defense attorneys is a simple one, i.e, a non-party deposition. Authority to conduct non-party depositions of family members and co-workers should be explored before party depositions and expert discovery proceedings even begin. In most state court jurisdictions, a party may serve the state equivalent of Rule 74 deposition subpoena/notice once issue is joined in the case.

Non-Party DepositionsThe above sample fact pattern highlights some easily identifiable sources of future impeachment evidence. The traditional litigation chronology is to serve an Answer to the Complaint, along with discovery demands and a notice to depose plaintiff. The depositions and discovery process in general are often delayed for months or years. The quick non-party deposition approach to the above fact patterns is effective on many levels. Non-party depositions of the plaintiff’s family members and supervisor in the above fact scenario may yield surprising results. The mere service of the subpoena and notice directly upon the son and daughter-in-law may rattle the family and spur more reasonable negotiations due to inconvenience on the plaintiff’s part. If plaintiff is undeterred by the non-party deposition subpoena, the depositions themselves may have a chilling effect on their claim. In reality, the daughter-in-law in the above case, which was based on a real fact pattern, did not want to be dragged into her mother-in-law’s personal injury claim. It was evident that their relationship was a bit strained anyway. When the daughter- in-law was asked about whether she knew of the plaintiff’s prior neck injury

claim, the daughter-in-law was angered and expressed displeasure regarding her involvement in the case and a heated conference was held outside of the deposition among plaintiff’s attorney and all of the family members. The deposition of the son regarding his child and whether the plaintiff was a loving grandmother/caretaker yielded answers regarding how active and wonderful the plaintiff was regarding the everyday life of the two-year-old grandson. The overall result of the depositions of the family members was that (a) the family did not want their lives disrupted based upon this light impact claim, and (b) that a picture was painted of the plaintiff as an active 68-year-old grandmother who was fully involved in the grandson’s life, often as a babysitter and playmate (and not as a disabled, immobile sufferer). After an Offer of Judgment was served immediately following the non-party depositions, the case settled before party depositions were conducted and before experts were retained. A Rule 68 offer can be made at any time after the plaintiff’s lawsuit is filed, so long as it is filed at least fourteen days before trial. Fed. R. Civ. P. 68(a). The above case settled at a figure under the reserve amount initially set by the carrier based upon the unfavorable liability scenario and the surgery to the knee. By an overwhelming margin, most civil cases are resolved prior to trial. Early litigation tactics, such as early background searches and non-party depositions, can provide several pieces of evidence to help defendants “win the settlement.” Defense attorneys often wait for the court to mandate mediation after all of the party and expert depositions are conducted rather than trying to win the case in the initial pleadings or discovery stages. Controlling the timing of discovery and non-party discovery leads to obtaining maximum leverage in the litigation process and the best, most cost effective results for the client. A simple approach is often the best.