Pre-Trial Advocacy

27 January

• Initial client interview; today we're talking about interviewing the plaintiff. Interviewing the defendant is similar, but from a different perspective, obviously.
• Client interview should be in person if at all possible. Sometimes you'll just get a call right near the statute of limitations or something, and you'll have to go via phone, but set up a meeting for soon after. The person who wins the case is the one that the jury likes the most. Just having the facts on your side doesn't necessarily mean you win. So seeing the person is important.

  From the initial interview, you can see if the client is someone that juries are going to like, if they've got a good story, etc. You may want to bring in another person from your practice, if it's a close call. Often times a first impression will allow you to tell whether the person is credible.

• Use open-ended questioning. Try to pull information from the client, don't supply things. You get the full story that way, but you also see how believable the person is, and how well they tell their story, and what they focus on.
• First step: conflicts check. Remember that the OLR hotline will give guidance if needed. You don't want to get conflicted out after you've put a bunch of work in. Don't just think about the client, but also the potential other players in the case: do you need to subpoena a client?
• The more witnesses you can discover initially, the better: you get to pick who you have to put on the stand for various facts, and also there's a chance to confirm the client's story (or not). The client always says they have a great case, but witnesses may not be as sure. Plus, it's way less costly if you can find out people you can just call on the phone. Encourage the client to let those folks know you'll be calling.
• Usually there will be some medical information. Ask hard questions about pre-existing conditions, etc. Get your client's records before they are deposed-- this is expensive, but important, so you're not blindsided. Find out about GP in addition to whatever acute care they've had. If the patient goes and gets the records, it can be cheaper, so if you can get the records (going back 10 years before the accident), it might be way less expensive.
• Find out who has paid so far (insurance, etc.): you'll have to pay them back, at least some, most likely.
• Find out how the injury has affected the plaintiff's life.
• If you're working for the defense, ask about notes, journals, diaries, and calendars. If they exist, ask whether their memory was better then than it is now.
• Consider following up with a summary letter-- it gets the client to point out any gaps in your understanding.
• Fee agreements must be confirmed in writing.
• CCAP and Google everyone. Does the defendant have a lot of unsatisfied judgments against him/her? If so, what are the chances you'll get paid?
• Initial interview demo:
  [background info skipped]

  Involvement in prior lawsuits? How did you find me?

  Paraphrasing about priorities: what does the client want?

  Were other people terminated?

  Very forward about drug and sex harrassment claims.

  Light marijuana usage, apparently. Maybe this was known at work; Barr knows it.

  Apparently the assistant is attractive. Pappas does not have hire/fire authority (but does periodic reviews). She is incompetent. Reviews were apparently not very positive. They went out for drinks sometimes; once per month, not in groups. They talk about work outside the office, she has never directly complained. He took her to Phoenix sales convention. There was a big conflict between them over her major screw-up at work.

  Pappas was unrepresented when employment contract was drafted. There were maybe some tweaks after the initial draft. He believes he signed it, but does not have a signed copy. Doesn't know for sure if Barr signed it.

  No breaches other than the firing.

  Fired by phone while on medical leave. He was off for 2-3 months? Hospitalized on and off for first month. Not clear who was minding the store in his absence. Hadn't kept in touch. Leave was OK'd, but not clear what other contact there was.

  Has not talked to Barr since termination, probably. Has not talked to anybody else after he got fired. He's 52. "Burned a lot of bridges" is the reason given for termination. He's a little older than most other management other than Barr.

  Pappas believes he is responsible for quadrupling of revenues: firmness, attention to detail, tough management. He hit all his numbers, got the bonuses mentioned in the contract.

  No written notice of termination.

  Claims to have records of his applications for other jobs, multiple interviews and offers.

  At Barr, Pappas was managing hundreds of accounts in 10 states. He's not clear on where headquarters is, but IL is probably it.

  He has customer data on his home computer. In fact, everything he needs to do his job. No writing from the company requesting return of company property.

  There was a "defined contribution plan" (e.g., 401(k)); it's still at Barr. Pappas contributed the max. He was maybe up for a bonus at the time he was fired.

  All association members can access the board. It's a company subscription-- so maybe it's not his personal password...

  Pappas hasn't talked to the other folks he interviewed with since King rescinded his offer: "we have some information that makes us not really in a position to hire you right now." Kind of vague.

  He just happened across the board posting; nobody told him about it. He has not contacted anyone to get the statement removed.

  After the whole story: what is it that you want me to do for you? I need a job, I need money, I want my reputation back. Bottom line is money.

  He doesn't count on personal support from individuals; company records are probably best source of performance data because he was unpopular.

  Anybody who is a member of the web site would know who the post was about.

• Once you enter into an attorney-client relationship, it's very hard to get out of it.
• If the client can't identify anyone who will support his claim, that's a big red flag.
• Was there prior breach (looking for job w/King before leaving Barr)?
• Need to prove King saw the posting, else the defamation claim kind of evaporates in terms of damages.
• For the memo, rely on the printed materials