With many courts operating remotely or with social distancing guidelines, trial attorneys face new challenges. Here are some guidelines to keep things moving forward.
Remember the basics! Undertaking representation for a potential litigation client begins with a solid conflicts of interest check. After clearing your conflicts check, use a good client intake process and conduct a thorough client interview. Carefully consider whether to represent multiple clients in the same matter. Keep in mind that if a representation of multiple clients fails because of a conflict of interest, the lawyer will usually be forced to withdraw from representing ALL clients in that matter. (See Rule 1.7)
Next, be sure you have the requisite legal knowledge, skill, thoroughness and preparation for the representation. (See Rule 1.1) You may feel you can provide competent representation, but if the matter involves a unique or evolving area of the law, you may need to consider having experienced co-counsel. If you will be sharing fees with a lawyer not in your same firm, follow Rule 1.5(d) to be sure the division of fees is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation and agrees to be available for consultation with the client. This should be discussed with the client and included in the fee agreement.
When the matter is filed in a state court in Ohio after July 1, 2020, you will need to be aware of the amendments to the Ohio Rules of Civil Procedure that took effect July 1, 2020. These changes affect waiver of service, pretrial conferences, and disclosure of expert testimony. Discovery generally and ESI (electronically stored information) are also impacted by the amendments. You will want to check on procedures in your court as local court rules may still be in development regarding these amendments.
Communicating the practical impact of the new rules to clients will require focused communications and attention to active listening skills to ensure a reasonable understanding of the impact of these changes. The changes may require new trial or litigation strategies. Additionally, as litigators proceed with virtual depositions, pretrial hearings, hearings, mediations and perhaps even jury trials, client communication may require the litigator to explain using virtual technology.
Protecting client confidences while communicating electronically should also be discussed. Making sure the client understands the nuances of their matter and the legal options will allow them to make informed decisions about their representation. If the matter proceeds to settlement, special precautions may be required with social distancing to execute relevant documents.
Once the matter is concluded, the file closing letter with instructions for return of file to the client and a closed file client survey should be sent. This can also be an opportunity, as the lawyer prepares the file for return to the client, to evaluate procedures and strategy in handling the case. Following that with review of the returned closed file client survey can facilitate improvements for future litigation. There is a new way of doing business in our courts. Following these steps can help lawyers meet the challenges and keep the edge in litigation.
As always, if you have any questions, please feel free to call us at OBLIC. We are here to help!
Gretchen K Mote, Esq.
Director of Loss Prevention
Best Practices – Litigation
- Always run a conflicts of interest check
- Use client intake form
- Conduct good client interview
- Discuss representation & sign fee agreement
- Use good client communication to:
- Explain court process
- Discuss discovery & prepare client for virtual proceedings
- Keep client informed of status of case
- Conclude representation
- Send file closing letter & closed client survey – return client file
- Evaluate procedures & strategies
- Implement improvements for future litigation