CHAPTER THREE

CASE EVALUATION AND STRATEGY

CHAPTER OBJECTIVES

After the preliminary factual investigation is done, the lawyer must decide whether to take the case.  If the lawyer decides to take the case, you will assist the lawyer with developing a litigation strategy and completing any pretrial requirements.  Before beginning the exercises, review the specific objectives for this chapter of the text.

·         How to establish the terms of the attorneyclient agreement

·         How a lawyer's fee is charged

·         What steps to take in planning the litigation

·         How to develop a litigation strategy

·         What prefiling requirements should be considered

TESTING YOUR COMPREHENSION

Test your comprehension of Chapter 3 by answering each of the following questions.  Circle true or false for each answer.  Although the answers may be found in the main text, try to answer each questions before referring to the text.

1.                                 T          F          The terms of the attorneyclient relationship should be formally established with a written agreement.

2.                                 T          F          A contingency fee arrangement is where the lawyer receives a percentage of the recovery received by the client.

3.                                 T          F          A lawyer's fee includes outofpocket expenses incurred by a lawyer on behalf of the client.

4.                                 T          F          A retainer is the hourly fee paid by the client to the lawyer.

5.                                 T          F          A litigation plan is not necessary for most cases since you and the lawyer will already have defined the client's objectives after the initial client interview.

6.                                 T          F          Statutory notice requirements must be complied with or else suit will be barred.

7.                                 T          F          If a claim is based upon breach of contract, a notice to sue is never necessary.

8.                                 T          F          If a contract contains an arbitration clause, the dispute must be submitted to arbitration.

9.                                 T          F          Administrative procedures usually must be exhausted before claims may be brought in court against governmental bodies.

10.                                T          F          Minors and incompetents can sue either individually or through their legal guardians.

11.        T          F          A person may never be deposed before a lawsuit is filed.

12.                                T          F          A demand letter should always be signed by the paralegals drafting the letter.

APPLYING YOUR KNOWLEDGE

Answer the following questions by applying the information you have learned from the main text.  If you need more space for some of the questions, use a separate sheet of paper.

1.         What potential conflicts, if any, do you see between lawyers and their clients in contingency fee arrangements?  If there is a potential for any conflict, why do jurisdictions still permit contingency fee arrangements?

2.         Why are ambiguities and omissions in attorneyclient agreements strictly construed against the lawyer?

3.         This chapter has covered in extensive detail the establishment of the terms of the attorneyclient relationship.  Why is it important for you, as a paralegal, to be familiar with this information?

4.         If a fee is shared with another lawyer outside the principal lawyer's firm, why must this fact be disclosed to the client and the clients permission obtained?

5.         What is the purpose of an attorney's lien?  What type of notice is required, and who must receive such notice? 

6.         Once the lawyer decides to take the case, why is it good practice to have the client sign authorization forms to obtain records?

7.         Why is it important for you and the lawyer to keep in close communication with the client?

8.         What is meant by the phrase "theory of the case"?  Why is it good practice to develop a theory of the case?  How would you go about developing a theory of the case.

9.         What are the steps which must be taken when planning discovery?  What is the purpose of each step?

10.        Why is it important to plan the settlement approach as part of the litigation planning.

11.        Why do administrative remedies need to be exhausted before filing suit against a governmental agency?

12.        A lis pendens gives notice to interested parties of a dispute involving an interest in real property or tangible personal property.   Why may the notice be filed only after a lawsuit is filed?  Why is the notice filed in the public records?

PROJECTS FOR RESEARCH AND WRITING

Each of the following projects requires you to prepare documents from the information you have learned in the main text.  In some instances, you will also need to conduct some basic legal research.  Once you have finished each of the projects, place the projects in your litigation guide for future reference.

1.         The terms of any attorneyclient relationship should be established in writing.   Assume that your firm has decided to take on the representation of the Samsons in hypothetical number 1 on an hourly basis.  Make a list of the types of information that should be included in any formal written agreement.  It is not necessary to actually write up the agreement.

2.         Having written your list of terms to include in the fee agreement, you should now write the hourly fee agreement letter.  Unless instructed otherwise, for purposes of this assignment assume the following additional facts in writing the agreement:  the total damages suffered by the Samsons were $18,000, the lawyer is charging a fee at the hourly rate of $90, and a retainer of $1,200 is required prior to representation of the client.  Use the sample in the text at page 71 and the sample on the following page as guides for including all the necessary details.   Although you are drafting the agreement, remember that the agreement should be prepared for the attorney's signature.

FEE AGREEMENT LETTER

Dear ____________________

As we discussed in my office yesterday, I have agreed to represent you in connection with _________________(insert what services the attorney will render). 

Fees for representing you will be based on ____________________

_____________________________________________________.

My present hourly rate is ______ per hour.  You have agreed to provide a retainer of __________ prior to commencement of my representation of you.

In addition to my fee, there will also be certain costs expended on your case, such as ____________________________________________.

You will be responsible for paying all such costs, regardless of the outcome in the case.

[insert information about the rendering of monthly statements and the use of the retainer]

Please confirm that this letter correctly reflects the terms of our agreement by singing and dating the enclosed copy of this letter on the spaces provided.

[insert any concluding information]

Sincerely.

________________

[name of attorney]

[insert signature and date lines]

3.         Once your law firm decides to accept the representation of the client, several steps must be taken to get the relationship off to a good start.  These steps are discussed at pages 70-75 of the main text.  Draft a list of these steps and place the list in your litigation guide.  The list may then be used as a checklist once you are in practice to insure that each step is carefully followed.

4.         If the lawyer decides not to take a case, a letter declining representation should be sent to the client.  Assume that your firm has decided to decline the representation of Mr. Kester in hypothetical number 3 and that the statute of limitations on personal injuries in your state is one year.  The statute will run in exactly two months.  Draft a letter to Mr. Kester declining representation.  Remember, although you will be drafting the letter, the letter should be signed by the lawyer.  You may use the letter in the appendix as a sample.

5.         Assume that your firm is representing Derrick Mason in hypothetical number 4.  What authorization forms should you have Mr. Mason sign?  Draft a sample authorization form.  You may use the authorizations contained in the main text and in the appendix as samples. 

6.         Prepare a list of the basic steps in a litigation plan.  Put the list in your litigation guide and use the list as a checklist once you are in practice.  Now, using Novelty Products, Inc. v. Gift Ideas, Inc. (Chapter 3, page 80) as a sample, prepare a litigation plan for Shamrock Enterprises in hypothetical number 2.

7.         Demand letters are frequently used in contract cases.  Assume that your firm represents Novelty Products, Inc.  Using the facts at page 81 of the main text, write a demand letter to Gift Ideas, Inc.  Refer to the samples in the main text at page 94 and in the appendix.

8.         Before drafting any pleadings, a number of prefiling requirements must be considered.  Make a checklist of all the necessary prefiling requirements, and place the checklist in our litigation guide for future reference.