In-House Counsel—Instant Experts

Being served with a summons often seems like a journey in which you do not know where you stand, how you got there, or how you can get to where you want to be. It can challenge even experienced trial lawyers. Below is a description of some of the basics, which should assist you in identifying the first steps in handling a claim.

1. Immediately instruct the company to preserve all electronic and paper documents. Suspend all document retention or backup policies or practices that might otherwise lead to the deletion or overwriting of any information.
2. What is the due date to answer or otherwise plead? Review the applicable rules of the forum, and docket the date.
3. When and how was service made? Was service proper?
4. Is there insurance that covers plaintiff’s claims? Read the policies. Notify the insurers in writing.
5. Has anything already occurred in the case? Check the docket sheet, a listing of the filings in the action maintained by the court. You typically can obtain docket sheets electronically or through the court clerk.
6. Is there an arbitration agreement?
7. Is there a forum selection clause?
8. Is there a choice of law clause?
9. Can you move to dismiss on the ground that the company is not subject to personal jurisdiction where it was sued?
10. If in federal court, is there federal subject matter jurisdiction? Is diversity properly pled?
11. If in state court, is the action removable? What is the due date to remove the case to federal court? Docket the date.
12. Is there a better forum? Consider a motion to dismiss on the grounds of forum non conveniens, or to transfer pursuant to 28 U.S.C. § 1404 or 1406.
13. Is there a prior pending or related action?
14. Did the plaintiff make a jury demand? If not, should the defendant make a jury demand?
15. Was the proper defendant named?
16. Are there other necessary parties that should or must be joined?
17. Who is the plaintiff? Who is plaintiff’s counsel? Collect available information.
18. What is the court? Many courts have “local rules” that apply specifically to actions in that court. Find and read the local rules, which should be available on the court website (if online) or by calling the clerk of the court.
19. Who is the judge? Read her or his biography. Does he or she have any standing orders?
20. What are the plaintiff’s claims? What are the company’s potential defenses? What are the facts? Who are the witnesses? Where are the documents? Summarize this information in a memorandum to the file for your, and your outside counsel’s, future reference.
21. Does your company have any counterclaims against the plaintiff, cross-claims against other defendants, or third-party complaints against other parties?

More information about the book The In-House Counsel’s Essential Toolkit

Related CLE

What Works? Best Practices for an IP Trial as Viewed from the Bench and Bar
What Works? Best Practices for an IP Trial as Viewed from the Bench and Bar is an online course that engages the advice of prominent judges and outside and in-house counsel specializing in intellectual property litigation. The panel not only identifies what the best practices are, but also probe to find out why they are considered "best." They discuss, inter alia, brief-writing tips, the use of technology to explain cases, demonstrative evidence, the use of ELMO, the proper use of PowerPoint slides, forum selection, and more.

Featured Faculty: Mark T. Banner, Dale Cendali, Hon. T.S. Ellis III, Hon. Susan Illston, Robert G. Krupka, William F. Lee, Hon. Paul R. Michel, Kimberly A. Moore, Joseph R. Re

Section of Intellectual Property Law, Section of Science and Technology Law, and the ABA Center for Continuing Legal Education

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