View the online version at http://us.practicallaw.

com/0-586-9448

Managing Litigation Checklist

PRACTICAL LAW LITIGATION

This Checklist provides a general overview of the „„Evaluate service of the complaint. If the company was not properly
served, it may move to dismiss the complaint at the appropriate
key steps involved in managing civil litigation time (see Commencing a Federal Lawsuit: Filing and Serving the
brought against a US company. It addresses Complaint Checklist (http://us.practicallaw.com/3-508-3550)).
„„Review the parties named in the complaint. The company's name
case assessment, budgeting, insurance, hiring
may be misspelled, the wrong company division or subsidiary
counsel, data preservation, litigation holds, may be named as a party or a party completely unrelated to the
preserving privilege, managing discovery, company may be named as a defendant instead of the company.
„„Check whether the statute of limitations for any of the claims has
preparing witnesses, going to trial, filing an run. If so, the company may move to dismiss those claims.
appeal and settlement negotiations. „„Assess litigation size and scope. Depending on the nature of the
case and the company's potential liability exposure, the company
must decide whether it should be represented by in-house counsel
Because litigation diverts human, financial and other resources or retain outside litigation counsel (see Hire Outside Counsel).
away from the company's core business activities, counsel should
„„Evaluate insurance policies. If the matter is covered by insurance,
manage it efficiently to minimize costs and its toll on the business.
the policy may require the insurer, instead of the company, to hire
This Checklist provides an overview of the key issues to consider when
outside counsel and supervise the defense of the litigation (see
managing civil litigation brought against a US company.
Insurance Considerations).
„„Initiate a litigation hold to preserve relevant documents and
PERFORM EARLY CASE ASSESSMENT evidence (see Issue a Litigation Hold).
While no one can predict whether or when a company may be sued, „„Review applicable contracts, if any, to determine whether the
when the company is sued, it must act quickly by performing a parties to the litigation are bound by an alternative dispute
preliminary case assessment as soon as the complaint is received to resolution clause. If so, the parties may be required to mediate or
help counsel prepare the company's best defense. Counsel should: arbitrate the dispute. For an overview of the mediation process in
„„Immediately inform management, the board of directors and the complex cases, see Practice Note, Complex Mediation: Key Issues
public relations department that the company has been sued (see and Considerations (http://us.practicallaw.com/1-575-6667)
Article, Managing Litigation PR (http://us.practicallaw.com/ and for an outline of the stages of a mediation, see Stages of a
0-101-7801)). Mediation Checklist (http://us.practicallaw.com/9-204-0392).
„„Instruct employees generally not to speak publicly about the
litigation unless specifically authorized to do so.
„„Review and advise on any necessary public communications. (For
a sample memo to instruct executives on dealing with the media,
see Practice Note, Dealing with the Media: Business Briefing (http://
us.practicallaw.com/5-513-4266).)

© 2015 Thomson Reuters. All rights reserved.

 Managing Litigation Checklist

HIRE OUTSIDE COUNSEL For other considerations when hiring separate outside counsel
„„If the company's legal department lacks the staff or expertise to for employees, see Conducting an Internal Investigation Checklist:
defend the company, it must hire outside litigation counsel. Determining Whether to Retain and Pay for Individual Counsel (http://
us.practicallaw.com/6-501-9464#a483485).
„„The factors to consider when engaging outside counsel include
the firm's:
INSURANCE CONSIDERATIONS
„„reputation;
„„Determine whether an insurance policy covers the company's
„„expertise in the areas of substantive and procedural law litigation costs because the insurer may reserve the right to
governing the case; select or approve the company's outside counsel (see Reevaluate
„„track record with similar cases in terms of size, scope and Insurance Coverage).
issues involved; „„If outside counsel is retained, in-house counsel should continue to
„„office size and location; play an active role throughout the litigation by:
„„knowledge of the forum, judges, client, adverse parties and „„asking questions about litigation strategy, posture and avenues
opposing counsel; for settlement;
„„conflicts; „„supervisingoutside counsel to keep them focused on the
„„billingrates and alternative fee arrangements (for more company's objectives and to minimize costs;
information on alternative fee arrangements, see Overview of „„keeping management, the board of directors, finance and
Counsel Fee Arrangements Chart (http://us.practicallaw.com/ accounting informed;
8-538-5965)); „„monitoring the litigation hold to ensure compliance (see Issue a
„„proposed litigation team, including non-attorney support and Litigation Hold);
technical staff; and „„managing the company's response to discovery requests and
„„relationships with litigation support vendors and preparing witnesses for depositions (see Supervise Discovery and
expert witnesses. Prepare Witnesses); and
„„If the company has never hired outside litigation counsel or seeks „„leading settlement negotiations (see Settle the Case).
to change current counsel, it may wish to invite several firms to
participate in a "beauty contest" or bidding process where they: PERFORM COMPREHENSIVE CASE ASSESSMENT
„„present their capabilities to the company; After hiring outside counsel, the company and its counsel should
„„introduce the proposed trial team, including all partners, meet to thoroughly evaluate the case and to fully understand
associates and legal assistants who may staff the litigation; the risks and costs involved in defending the company. This
„„submit a bid that includes a detailed estimate of all fees and comprehensive evaluation should include:
costs anticipated in defending the company through trial; and „„Investigation of the relevant facts. This usually involves conducting
„„provide a list of previous engagements for similar litigation an internal company investigation (see Conducting Internal
matters along with client references. Investigations Toolkit (http://us.practicallaw.com/2-502-1874)). To
ensure the proper creation and maintenance of the attorney-client
For additional issues to consider before signing an engagement letter privilege and the work product protection over communications
with outside counsel, see Standard Documents: made, or documents created, during the investigation, see
„„Engagement (Retainer) Letter: Hourly Fee Arrangement (http:// Practice Note, Internal Investigations: US Privilege and Work Product
us.practicallaw.com/6-521-3395). Protection (http://us.practicallaw.com/3-501-8418).
„„Engagement (Retainer) Letter: Alternative Fee Arrangement (http:// „„Review of legal claims brought against the company. Counsel
us.practicallaw.com/4-523-3525). should first obtain a basic understanding of the key legal issues
„„Engagement (Retainer) Letter: Contingency Fee Arrangement underlying the claims. Common types of business litigation
(http://us.practicallaw.com/0-521-9300). include claims of:
„„antitrustviolations (see Practice Note, US Antitrust Laws:
SEPARATE COUNSEL FOR EMPLOYEES Overview (http://us.practicallaw.com/9-204-0472));
„„If an employee is named as a party to a lawsuit, the company must „„intellectualproperty infringement (see Practice Note, Intellectual
determine whether it may need to retain separate outside counsel Property: Overview (http://us.practicallaw.com/8-383-4565));
to represent that employee. „„harassment (see Practice Note, Harassment (http://
„„Before engaging outside representation, counsel should consider us.practicallaw.com/9-502-7844));
whether the employee: „„defectiveproducts (see Practice Note, Product Liability Claims,
„„may be individually liable; and Defenses and Remedies (http://us.practicallaw.com/2-504-1711));
„„has an actual or potential conflict of interest with the company. „„securitiesviolations (see Practice Note, US Securities Laws:
Overview (http://us.practicallaw.com/3-383-6798)); and

2 © 2015 Thomson Reuters. All rights reserved.

 Managing Litigation Checklist

„„general corporate liability (see Criminal and Civil Liability for „„To help the company prepare a litigation budget and manage
Corporations, Officers and Directors (http://us.practicallaw. the company's litigation deadlines and other responsibilities, the
com/6-501-9459)). litigation budget or outline should cover the following stages:
„„Consideration of counterclaims and defenses. „„initial pleadings, pre-answer motions and responsive pleadings;
„„An understanding of the forum, judge, adverse parties, opposing „„factdiscovery, including the costs to locate documents and
counsel and potential jury pool involved in the litigation. If the witnesses and retain outside e-discovery and other vendors;
complaint was filed in state court, the company should consider „„expert discovery;
any advantages to removing the case to federal court. For key
„„filing dispositive motions;
factors to consider when deciding to remove a case from state to
federal court, see Practice Note, Removal: Why Remove? (http:// „„pretrial preparations, including filing pretrial motions, the
us.practicallaw.com/2-533-3069). pretrial conference, trial witness preparation and staging a
mock trial;
„„Identification of key witnesses inside and outside the company.
„„trial; and
„„Locating and preserving documents and other information,
including electronically stored information (ESI), such as e-mails „„post-trial motions and appeals.
(see Practice Note, Practical Tips for Preserving ESI (http:// „„The budget should address for each of the above stages:
us.practicallaw.com/8-500-3688)). „„the legal issues involved;
„„Preparation of a litigation budget (see Litigation Budget Toolkit „„deadlines;
(http://us.practicallaw.com/1-576-7265)).
„„objectives,
such as "prepare and file an answer" and "take five
„„Assessment of the company's risk tolerance. depositions;" and
„„Evaluating insurance coverage. „„which members of the litigation team should meet each
„„Considering settlement options (see Settle the Case). objective, along with an estimated number of hours needed to
complete the involved tasks, attorney and legal assistant billing
For additional factors to consider when assessing the case, see rates and related expenses including copying charges, meals,
Practice Note, Case Assessment and Evaluation (http://us.practicallaw. travel and accommodations, court reporters and transcript
com/4-525-8907). costs, filing fees and outside vendors and consultants.
„„Because each state and federal court in the US is governed by
JOINT DEFENSE AGREEMENTS
separate rules of procedure and evidence covering every litigation
If there are multiple non-affiliated defendants in the case, the
stage, the company should consult and comply with the relevant
company should consider entering into a joint defense agreement to
rules and laws for a particular forum, such as:
help in:
„„the Federal Rules of Civil Procedure (FRCP), which govern
„„Sharing confidential information with other defendants without
litigation procedure in federal courts. (For links to key primary
waiving available privileges.
resources that relate to procedural issues for each federal
„„Spreading the cost of legal fees and other litigation expenses. appellate and district court, see Practical Law's Court Rules
(http://us.practicallaw.com/resources/us-court-rules) home
For a sample joint defense agreement, see Standard Document, Joint
page.); and
Defense and Confidentiality Agreement (http://us.practicallaw.com/
2-501-9461). „„state-specific laws governing court structure and litigation
procedure (see Litigation Overview: State Q&A Tool (http://
us.practicallaw.com/6-573-9227)).
PREPARE A LITIGATION BUDGET
„„A detailed litigation budget aids in: For more detailed information on putting together a litigation
budget, see Standard Document, Litigation Budget Template (http://
„„assessing case merits;
us.practicallaw.com/7-525-8883). For additional resources to help
„„deciding whether to settle a case early to minimize the company prepare a litigation budget, see Litigation Budget
litigation costs; Toolkit (http://us.practicallaw.com/1-576-7265). For a chart showing
„„communication with outside counsel; the main litigation tasks defense counsel face, see Case Assessment
„„managing attorneys' fees and related litigation expenses; Decision Tree and Costs Worksheet (http://us.practicallaw.com/
3-525-9318).
„„advising company management, the board of directors, finance
and accounting;
„„complying with financial reporting requirements; and
„„accountability.

© 2015 Thomson Reuters. All rights reserved. 3

 Managing Litigation Checklist

REEVALUATE INSURANCE COVERAGE „„Collect responsive data. Because of the cost associated with

„„As the size and scope of the company's business evolves, the collecting and analyzing voluminous ESI, the company or its
company should periodically reevaluate the type and amount of its outside counsel may wish to retain an e-discovery vendor or
insurance coverage. other legal process outsourcing provider (see Questions to Ask a
Prospective E-Discovery Vendor Checklist (http://us.practicallaw.
„„When the company is sued, a thorough evaluation of the
com/9-520-3516) and Practice Note, Legal Process Outsourcing in
company's insurance coverage is necessary to ensure that
Litigation (http://us.practicallaw.com/5-583-2706)).
attorneys' fees and other litigation costs are covered.
„„Send periodic litigation hold reminder notices to document
„„Factors to consider include:
custodians (see Standard Document, Litigation Hold Reminder
„„the types of insurance coverage the company holds; (http://us.practicallaw.com/7-544-4927)).
„„the scope of policy coverage; „„Monitor and enforce litigation hold compliance (see Standard
„„notice requirements for filing claims and other claims Document, Data Collection Log Template (http://us.practicallaw.
procedures and deadlines; com/4-554-1623)).
„„triggeringevents, legal claims and other issues identified in „„Lift the litigation hold when the matter concludes (see Standard
the complaint; Document, Litigation Hold Lift Notice (http://us.practicallaw.com/
„„exclusions and conditions that limit coverage; and 7-544-8925)).
„„the insurer or insured's ability to choose outside counsel and For an explanation of the key issues the company should consider
control the company's defense. when issuing a litigation hold, see Practice Note, Implementing a
Litigation Hold (http://us.practicallaw.com/8-502-9481) and Litigation
For more information about insurance policies and coverage, see
Hold Toolkit (http://us.practicallaw.com/2-545-9105).
Insurance Policies and Coverage Toolkit (http://us.practicallaw.com/
4-506-1171).
PRESERVE ATTORNEY-CLIENT PRIVILEGE AND WORK
PRODUCT PROTECTION
ISSUE A LITIGATION HOLD
Counsel must take steps to preserve the attorney-client privilege and
„„The company should issue a litigation hold when it:
to maintain work product protection for the company. For example:
„„reasonably anticipates litigation or a government investigation;
„„Throughout the litigation, the company must take affirmative
„„becomes aware of litigation; steps to preserve the attorney-client privilege and the work
„„learns that it has a duty to preserve; product protection as failure to do so may result in waiver, leading
„„receives a cease and desist letter; to the company's production of privileged communications and
protected documents and other materials.
„„is served with a complaint;
„„To preserve the attorney-client privilege and the work product
„„receives a subpoena; or
protection counsel should:
„„receives a formal order of investigation from a regulatory body.
„„check applicable privilege standards in the court where the
„„Depending on the court where the litigation is pending, counsel litigation is pending, such as whether to provide Upjohn
should urge the company to issue a timely litigation hold to warnings to employees to ensure that privileges remain with
avoid adverse consequences for the company, such as monetary the company;
sanctions, adverse inference jury instructions and evidence
„„train employees about the attorney-client privilege and the
preclusion (see Practice Note, E-Discovery Case Tracker: Sanctions
work product doctrine (see Standard Document, Attorney-Client
(http://us.practicallaw.com/9-556-2745)).
Privilege and Work Product Protection: Presentation Materials
„„For an effective litigation hold, counsel should: (http://us.practicallaw.com/7-560-0786));
„„stop the destruction of all relevant documents, physical „„limitcorrespondence and other communications (especially
evidence and ESI. (For issues to consider when preserving ESI in electronic communications) about the litigation to those with a
federal litigation, see Practice Note, Practical Tips for Preserving "need to know;"
ESI (http://us.practicallaw.com/8-500-3688) and if the
„„adviseemployees and others involved in the litigation to avoid
company was sued in state court, counsel should consult local
forwarding protected electronic communications;
e-discovery rules); and
„„segregate hard copies of protected documents in a separate
„„develop a litigation hold plan that involves the company's legal
file in a secure office to be accessed only by counsel and those
and IT departments, key employees and outside counsel. For a
working under counsel's direction;
sample litigation hold notice, see Standard Document, Litigation
„„avoid discussion of confidential matters in public places,
Hold Notice (http://us.practicallaw.com/0-501-1545).
including in the company's elevator and lobby;
„„Identify all custodians of relevant documents and other
„„limit the use of speaker-phone conversations when discussing
information and all locations where they may be found.
litigation-related matters; and

4 © 2015 Thomson Reuters. All rights reserved.

 Managing Litigation Checklist

„„mark documents as "Privileged and Confidential" or "Attorney- „„For more information on the Rule 26(f) conference, see Rule 26(f)
Client Privileged Communication," although this step alone Conference Checklist (http://us.practicallaw.com/7-554-1645).
does not ensure that a court will rule that the documents are „„During discovery, and depending on the court where the litigation
privileged if the issue is disputed. is pending, counsel should be prepared to address any discovery
„„If the company has employees located outside the US, counsel devices that the company may serve, or be served with, including:
must ensure the proper privilege rules are applied to any „„initial disclosures in federal court (see Standard Document,
communications. For an overview of privilege law in 20 foreign Initial Disclosures (http://us.practicallaw.com/1-531-5947));
jurisdictions, see Practice Note, A World Tour of the World of
„„requests for production of documents (see Document Discovery
Privilege (http://us.practicallaw.com/9-205-5802).
Toolkit (http://us.practicallaw.com/7-529-3645));
For a comparison of the attorney-client privilege and the work „„interrogatories (see Interrogatories in Federal Court Toolkit
product doctrine, see Attorney-Client Privilege and Work Product (http://us.practicallaw.com/9-555-3345));
Doctrine Comparison Chart (http://us.practicallaw.com/7-541-3186). „„subpoenas. Counsel should consult relevant local rules for
For issues that arise when applying the attorney-client privilege in subpoenas issued in state court litigation. For more information
corporations, see Practice Note, Attorney-Client Privilege: Identifying about the use of subpoenas in federal court (see Practice
the Attorney and the Client: Corporate Clients (http://us.practicallaw. Notes, Subpoenas: Using Subpoenas to Obtain Evidence (http://
com/9-502-8339#a898355). For additional resources on preserving us.practicallaw.com/0-503-1893) and Subpoenas: Responding to
privileges, see Attorney-Client Privilege and Work Product Doctrine a Subpoena (http://us.practicallaw.com/1-503-1741));
Toolkit (http://us.practicallaw.com/0-501-1475).
„„deposition
notices (see Deposition Toolkit (http://us.practicallaw.
com/3-532-3606));
SUPERVISE DISCOVERY
„„requestsfor admission in federal court (see Requests for
„„After the company issues a litigation hold, it should begin to Admission in Federal Court Toolkit (http://us.practicallaw.com/
identify relevant witnesses, documents and other information in 8-571-2585)); and
preparation for discovery.
„„expertdisclosures and reports (see Practice Note, Experts: Expert
„„Because discovery and evidence rules can vary significantly Reports (http://us.practicallaw.com/1-572-8028)).
between state and federal court, counsel should always check
„„Counsel should prepare a privilege log if the company intends
the relevant local discovery rules (see Practical Law's Court Rules
to withhold documents from production on the grounds of the
(http://us.practicallaw.com/resources/us-court-rules) home page).
attorney-client privilege, the work product doctrine or other
„„If a Rule 26(f) conference under FRCP 26(f) or a similar case applicable privilege (see Standard Document, Privilege Log (http://
management conference under a state's local rules is required, us.practicallaw.com/7-381-2093)).
counsel should be prepared to discuss:
„„the nature of the claims, counterclaims and defenses raised in For an overview of the issues to consider during the discovery phase
the case; of a federal litigation, see Discovery: Overview (Federal) Checklist
(http://us.practicallaw.com/w-000-1568).
„„timing for disclosures;
„„document production and deposition issues;
PREPARE WITNESSES
„„e-discovery parameters (see E-discovery Toolkit (http://
„„Generally, after the company produces documents and other
us.practicallaw.com/8-503-1078));
information in response to discovery requests, opposing counsel
„„privilege issues, including the need for a confidentiality notices the depositions of company employees and executives.
agreement with a claw-back provision through which the For a sample deposition notice for use in federal litigation, see
inadvertent disclosure of privileged information may be Standard Document, Notice of Deposition (Fed. R. Civ. P. 30(b)(1)
corrected (see Standard Document, Confidentiality Agreement (http://us.practicallaw.com/2-520-8485)).
(Order)(Federal) (http://us.practicallaw.com/2-535-4542)
„„In-house counsel should participate alongside outside counsel
and Standard Clauses, Privilege Waiver Clause with Claw-Back
when preparing the company's witnesses for their depositions.
Provision (http://us.practicallaw.com/2-501-4958)). In addition
to a claw-back provision, parties can further protect themselves „„Steps involved in witness preparation include:

from waiving privilege by asking the court to enter an order „„preparing an outline of deposition topics to cover with
under Federal Rule of Evidence (FRE) 502(d)(see Standard the witness;
Document, Fed. R. Evid. 502(d) Order (http://us.practicallaw. „„assembling a binder of the most important documents to review
com/2-526-0807)); with the witness;
„„discovery costs. To estimate the costs of producing and „„meeting with each employee individually to explain the nature
reviewing documents and ESI, see Standard Document, Budget of the case, discuss the employee's role in assisting with the
Template: Document Production (http://us.practicallaw.com/8- company's defense and confirm deposition dates, locations and
544-6025) and Budget Template: Reviewing an Opposing Party's witness availability; and
Documents (http://us.practicallaw.com/5-545-8185); and
„„settlement possibilities.

© 2015 Thomson Reuters. All rights reserved. 5

 Managing Litigation Checklist

„„conducting a witness preparation session before the deposition SETTLE THE CASE
to review deposition rules and ask the witness mock deposition Throughout the litigation's pendency, the company should evaluate
questions (see Deposition Rules for Witnesses Checklist (http:// whether to settle the case. Factors to consider include:
us.practicallaw.com/3-547-8146)).
„„The strengths and weaknesses of the company's case.
For an outline of the key steps involved in preparing witnesses for „„The company's liability exposure and risk tolerance.
depositions, see Practice Note, Depositions: Preparing to Defend a
„„The parties' size and respective resources to litigate through trial.
Deposition (http://us.practicallaw.com/4-544-5706).
„„The uncertainty of the litigation's outcome, especially for

COMPANY DEPOSITIONS UNDER FRCP 30(B)(6) jury trials.

„„In federal civil litigation, an adversary may notice the deposition „„Litigation costs and their share of the company's annual

of the company under FRCP 30(b)(6) in addition to noticing legal budget.

depositions of individual employees and executives. The company „„The potential for adverse publicity or other negative impact on the
and counsel must then designate one or more individuals to testify company's reputation.
on the company's behalf about information known or reasonably „„Stock price fluctuations, if the company is publicly traded.
available to the company.
„„Disruption to company operations, productivity and
„„Even if there is no employee at the company with personal business relationships.
knowledge about the topics listed in the Rule 30(b)(6) deposition
„„The likelihood that other parties will file suit against the company
notice, the company and counsel must identify and prepare one or
if it loses the pending litigation.
more corporate representatives to testify about those topics.
„„Insurance issues.
„„In addition to the witness preparation steps discussed above,
defending a Rule 30(b)(6) deposition of the company involves: „„Tax consequences of paying or receiving settlement proceeds. For
an explanation of tax withholding and reporting requirements for
„„careful review of the topics listed in the Rule 30(b)(6) deposition
settlement payments in employment-related disputes, see Practice
notice. (For a sample Rule 30(b)(6) deposition notice, see
Note, Settlement Payments for Employment-Based Claims: Taxation
Standard Document, Notice of Deposition (Fed. R. Civ. P. 30(b)(6))
and Reporting (http://us.practicallaw.com/7-535-5006).
(http://us.practicallaw.com/7-521-3489).);
„„objecting to overbroad or excessive deposition topics; For resources on how to settle a lawsuit and other issues related
to settlement, see Settling a Lawsuit Toolkit (http://us.practicallaw.
„„moving for a protective order if the parties cannot resolve issues
com/1-529-6307). For key issues to consider when entering into a
concerning the scope of the Rule 30(b)(6) deposition;
settlement agreement, see Settlement Agreement Drafting Issues
„„investigating which former and current employees may make Checklist (http://us.practicallaw.com/2-501-1790). For a sample
the best witnesses to testify on the company's behalf; and settlement agreement, see Standard Document, Settlement
„„designating the Rule 30(b)(6) witness or witnesses. Agreement and Release: A US Example (http://us.practicallaw.
com/2-503-1929). For a sample stipulation of dismissal (sometimes
For key issues to consider when preparing a corporate representative
used when the parties enter into a joint stipulation of dismissal to
to testify on the company's behalf, see Practice Note, How to Prepare
discontinue the litigation if settling a federal civil case), see Standard
for and Successfully Defend a Rule 30(b)(6) Deposition (http://
Document, Stipulation of Dismissal (http://us.practicallaw.com/
us.practicallaw.com/9-504-9935).
9-526-6165).
EXPERT WITNESS DEPOSITIONS
„„Although they generally require less preparation than lay
PREPARE FOR TRIAL
witnesses, counsel must prepare expert witnesses for „„If the case does not settle during an earlier litigation stage, the
their depositions. company and counsel must prepare for a trial before a judge or
„„In most cases, however, counsel should focus on the content of the
a jury.
expert's report. „„While outside counsel performs many of the tasks associated with
trial preparation, in-house counsel can:
For a summary of the likely topics to be covered at an expert's
„„update management and the board of directors and manage
deposition, see Practice Note, Depositions: Deposing an Expert: Topics
their expectations on the trial's outcome;
Asked About at Most Expert Depositions (http://us.practicallaw.com/2-
579-1967#a394248). For additional resources to assist counsel with „„choose litigation support vendors and jury consultants;
the use of experts in federal civil litigation, see Expert Toolkit (http:// „„revise the initial trial budget based on changes in case strategy,
us.practicallaw.com/5-590-5665). discovery outcomes and court rulings on motions and
other issues;
„„respond to press inquiries and other public relations issues;
„„review pretrial motions (see Practice Note, Preparing for Trial in
Federal Court: Motions in Limine (http://us.practicallaw.com/9-
576-7025#a356353));

6 © 2015 Thomson Reuters. All rights reserved.

 Managing Litigation Checklist

„„prepare a proof matrix (see Standard Document, Proof Matrix „„updating its corporate policies, like its document retention
(http://us.practicallaw.com/5-522-5426)); policy (see Records Management Toolkit (http://us.practicallaw.
„„attend the pretrial conference and review the pretrial order, com/2-520-1257));
briefs, exhibit and witness lists and deposition designations. The „„purchasing a legal hold software system;
Federal Rules of Evidence govern the admissibility of evidence „„using a litigation tracking tool (see Standard Document,
in a federal trial, but if the case is pending in state court, Litigation Management Template (http://us.practicallaw.com/
counsel should consult relevant local rules; 9-584-1365)); and
„„comment on trial counsel's proposed opening statement and „„applying a methodology such as "Lean Six Sigma" to improve
closing argument; the efficiency of the company's legal department (see Practice
„„select trial demonstratives; Note, Applying Lean Six Sigma Methods to Litigation Practice
„„prepare trial witnesses, if they are company employees (http://us.practicallaw.com/9-549-6388)).
or executives;
„„attend a mock trial (see Practice Note, Mock Jury Exercises
(http://us.practicallaw.com/3-556-4766));
„„lead settlement negotiations;
„„participatein jury selection by reviewing jury questionnaires and
attending the voir dire; and
„„co-chair the trial.
For a comprehensive list of counsel's pretrial tasks, see Corporate
Counsel Trial Readiness Checklist (http://us.practicallaw.com/5-506-
5277). For key pretrial issues to consider in federal court, see Practice
Note, Preparing for Trial in Federal Court (http://us.practicallaw.com/
9-576-7025).

FILE AN APPEAL
If the company loses the case after a trial, it should consider
whether to file an appeal. For a comparison of state-specific laws
governing appeals, see Initial Civil Appeals: State Q&A Tool (http://
us.practicallaw.com/1-571-5587) and Additional Civil Appeals: State
Q&A Tool (http://us.practicallaw.com/6-572-8101).
For guidance on commencing an appeal from a federal district court
to the second, ninth or federal circuits, see:
„„Second Circuit Civil Appeals Toolkit (http://us.practicallaw.com/
2-523-5771).
„„Ninth Circuit Civil Appeals Toolkit (http://us.practicallaw.com/
2-523-5790).
„„Federal Circuit Appeals Toolkit (http://us.practicallaw.com/
5-535-3579).

TRACK THE LITIGATION

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