Instructions to New RPA Plaintiffs

Instructions to New RPA Plaintiffs

Many times a lawyer has kicked himself/herself for not having told the client something important, when finding out that it is now too late to inform the client.

This happens too often during depositions (examinations of the client under oath, before a court reporter), when it generally is too late to brief the client on something which the client should know, to help the client in his/her case. For example, the c lient should always be told prior to the deposition (and during the deposition, if need be) not to volunteer information to the other side.

In RPA litigation, it is important for the client to know at the outset of the lawsuit (and especially before it is commenced) not to throw away any business records, including any data processing files, diskettes or even old computers (which have informa tion still stores in the hard disk).

This information may be needed to prove damages, and failure to preserve all of such information can make the case more costly and less rewarding. Accordingly, make it a point to tell everyone in the business not to throw away any records or data process ing files, or old computers, until the RPA litigation is over.

Also, the client should be told to always remain in touch with the attorney because of the speed (generally within 5 business days) with which the attorney needs to respond to motions. If the client is going away for more than a day, the client should ke ep the attorney informed.

From a communications standpoint, it is essential that the client have a standalone fax unit which is not connected to either the voice telephone line or any online services, to enable the lawyer to send fax communications speedily, and not have to wait f or a single telephone line to be cleared of all competing uses.

Also, if warranted, the client should have a beeper to enable him/her to be notified to get in touch with the attorney.

The attorney's time, being provided on a contingency basis, should not be wasted by having the attorney spend additional time trying to communicate with the client. The time wasted will be taken away from someone's case, probably the client's own case, a nd reduce the value of the case, or in extreme situation even cause the case to be lost.

The client should not waste the attorney's time by calling all the time and especially by remaining on the telephone chatting about the case generally and other subjects which come to mind. The fact that the attorney is not charging the client $250 per ho ur for the attorney's time is no excuse or license for the client to waste the attorney's time.

The client should respond immediately to all requests by the attorney, realizing that probably the attorney is over-worked and is making the request at the last moment, as is the case with many busy attorneys. When the attorney requests that something be done within a specific time frame, the client should ensure that it is completed within that requested time. Otherwise, the attorney may have to spend time obtaining an adjournment or, worse, lose a critical motion or other aspect of the case because of the client's failure to respond in time.

The client should not talk with anyone about the case, or at least any of the opposition. This instruction is designed to prevent any opponent from putting words in the client's mouth, by claiming falsely that the client had made some type of admission a gainst interest relating to the case. This instruction is not intended to discourage any possibility of settling the case.

Make sure you provide your attorney with all of your addresses, telephone numbers and fax numbers (including beeper numbers), and that you also provide the telephone and fax numbers of someone who always should be able to reach you.

When important events take place relating to the lawsuit, make contemporaneous notes of such events, which will make it easier for you to recollect what actually transpired.

Please don't confront your attorney with the statements made by other attorneys, paralegals or legal secretaries about how they would do something different, especially if these persons are not well-acquainted with the case. Your attorney can waste a lot of time trying to undo the effect that these off-the-top-of-the-head statements can have when made to a client seeking support about his/her case from every person he/she meets in a bar, diner, bus, train or plane. You will find that the advice being re ceived from your lawyer, who is most acquainted with the case, will be of much higher quality than the statements made by an acquaintance for 30 minutes at a neighborhood watering hole.

You could look for 1-2 other persons to join with you as plaintiffs in the RPA action, although this is not essential when the costs of litigation are kept under control.

Remember that you must read and approve the complaint before it is filed, and you should remember that you did this. The opposing attorney undoubtedly will ask you about this during the deposition he/she will take of you, as the plaintiff. A lawyer feels silly during a deposition when his/her client states that he/she did not read the complaint.

The reason, no doubt, that the client testifies that way is to try to reduce the opportunities for attack by the defendant's lawyer, but this is not the result. Instead, the opposing attorney will possibly attack the whole case and ask that it be thrown out for failure of the plaintiff to have read and approved the complaint.

What the client must know is that he/she should be a stand-up person with respect to the lawsuit, and defend it every way he/she can, by reading and understanding the complaint, and being prepared to support the allegations with whatever information the p laintiff knows.

When dealing with more than one plaintiff in a lawsuit, it is generally better than each plaintiff receive whatever damages he/she proves, and not try to enter into an agreement with the other plaintiffs for an award-sharing arrangement. These sharing ar rangements can backfire because they reduce the incentive for each plaintiff to work hard to prove damages, knowing that the plaintiff's interest is in the overall recovery. But when all of the plaintiffs come to the same conclusion, you will find that n one of the plaintiffs have any great interest in spending time and money in the proof of their own damages, and the whole case suffers as a result.

Another thing which plaintiffs should realize at the outset is that they have to live their lives and conduct their business as if no litigation is taking place. If they can do a business deal which might reduce the value of the case, most lawyers would say go ahead and take care of business. Don't unnecessarily try to hurt the case, but if business dictates that you do something, such as terminate your business, you should generally do what good business dictates. But consult with your lawyer first, t o see what impact your proposed action could have on the case and yourself.

Although there are many more things which should be said, particularly about how to conduct yourself during a deposition, these things will have to wait for another article and day.

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Copyright © 1997, 1999 by Carl E. Person