Developing a litigation strategy for your case

By John Allison 

Whether you are representing a plaintiff or a defendant in a civil lawsuit, a clearly defined litigation strategy that is designed to achieve the client’s objectives should guide the preparation and presentation of your case. 

The plaintiff’s litigation strategy should be developed before suit is filed. A defendant’s litigation strategy should be developed before filing an answer and well before responding to pretrial discovery. Opportunities for achieving the client’s objectives can be missed if tactical decisions are made ad hoc and are not guided by strategic considerations.

Your litigation strategy will guide tactical issues such as these:


       —  The causes of action that are asserted in the complaint, and the parties who are named as defendants.


      —  How the allegations in the complaint are answered, the affirmative defenses that are asserted, and whether any third-party defendants are brought into the case.


      —  Whether to demand a jury trial.


      —  The pretrial discovery tools that will be most effective for your client in this case.


      —  The sequence and timing of pretrial discovery.


      —  Whether to seek a case management order.


      —  Whether to proactively seek any limitations on the scope of pretrial discovery.


      —  The expert witnesses you need to retain, and whether any of them should be retained as consulting experts rather than as testifying experts.


      —  Whether, and when, to seek summary judgment or partial summary judgment.


      —  When, and how, to initiate settlement discussions with opposing counsel.


A litigation strategy should be developed with the goal of maximizing the chance for a favorable outcome in court.  The goal of the litigation process is to win, however “winning” might be defined by your client. 

Although more than 90 percent of civil lawsuits are settled before trial, it is a mistake to prepare a case on the assumption that it will probably settle. By preparing to win, you will be in a good position to achieve a favorable settlement for your client or to try the case if it does not settle.

Since a litigation strategy should be developed early in the case, it is subject to change. New evidence, absent witnesses, pretrial rulings and changes in the client’s situation may require a change in the litigation strategy. The strategy should be reviewed and updated periodically to ensure that the client’s interests and objectives are always paramount.

John Allison is a professional career coach backed by years of experience as a successful lawyer. He is the founder of The Coach for Lawyers and author of The Art of Practicing Law: A Practical Guide for Lawyers. 


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