Civil Litigation Process Map: Pre-litigation (Federal)

By: The Practical Guidance Civil Litigation Team

This process map resource kit provides an overview of the key stages in the lifecycle of a typical federal court litigation, as well as comprehensive resources providing step-by-step guidance on the most common tasks associated with the pre-litigation phase that you will typically work on in your litigation, including detailed practice notes, annotated templates, and checklists.

WHILE NOT EVERY LITIGATION IS IDENTICAL, MOST FEDERAL court litigations follow the same general lifecycle. The process map below provides a visualization of this lifecycle starting with the pre-litigation phase through final judgment and appeal.

Many of these lifecycle stages have multiple phases covering critical tasks you will typically work on in your federal court litigation.

For practical guidance on other stages and associated tasks throughout the litigation lifecycle, see: 

• Civil Litigation Process Map: Initial Pleadings (Federal)
• Civil Litigation Process Map: Settlement Discussions and Mediation (Federal)
• Civil Litigation Process Map: Preanswer Motions (Federal)
• Civil Litigation Process Map: Responsive Pleadings (Federal)
• Civil Litigation Process Map: Rule 26(f) Conference and Rule 26(a) Initial Disclosures (Federal)
• Civil Litigation Process Map: Discovery (Federal)
• Civil Litigation Process Map: Summary Judgment (Federal)
• Civil Litigation Process Map: Pretrial Preparations and Trial (Federal)

Litigation Process Map

Pre-litigation

The pre-litigation stage of your federal court litigation will likely include the following phases:

• Initial client meeting/early case assessment
• Client engagement and retention
• Budgeting
• Document preservation
• Issuing a litigation hold

Pre-litigation Phases

Initial Client Meeting/Early Case Assessment

The initial client interview is a vital first step in assessing the strength of a potential case and informs the retention decision from both the client’s and lawyer’s perspectives. At its conclusion, the interview will underscore the eventual framing and assessment of the litigation itself.

The following Practical Guidance resources will guide you through the initial client meeting and early case assessment phase of the pre-litigation stage of your federal court litigation.

Client Engagement/Retention

After meeting with the prospective client and evaluating the case, you must decide whether you will enter into a formal attorney-client relationship with that prospective client. If you agree to take on the litigation, you and the client must execute an engagement letter formalizing, among other things, the precise scope of the contemplated legal work. If you decide to decline representation, consider sending a non-engagement letter to formally notify the potential client of your decision.

The following Practical Guidance resources will guide you through the client engagement and retention phase of the pre-litigation stage of your federal court litigation.

Budgeting

Preparing a litigation budget ensures transparency in attorney-client relationships and requires an attorney to think holistically about his or her litigation strategy in a given case. Budgeting takes into consideration each phase of the litigation and the projected number of hours each timekeeper will spend on each task.

As part of the budgeting phase, you may also encounter the growing presence of for-profit investments in federal litigation. Litigation financing involves third-party financiers and companies investing in a case in exchange for a share of any settlement or judgment in favor of the plaintiff. This also includes a pre-agreed sharing of a contingency fee as a payment for the funds advanced to finance the litigation.

The following Practical Guidance resources will guide you through the budgeting phase of the pre-litigation stage of your federal court litigation.

Document Preservation

Document preservation is a critical phase of any federal court litigation. When a party knows that evidence under its control is relevant to pending litigation or should know that evidence may be relevant to future litigation, the party has an obligation to preserve that evidence.¹ Breach of the duty to preserve relevant evidence with a culpable state of mind gives rise to spoliation.

The following Practical Guidance resources will guide you through the document preservation phase of the pre-litigation stage of your federal court litigation.

Issuing a Litigation Hold

A litigation hold is an organization’s written instructions to its employees to preserve documents and information in their possession, custody, or control relevant to a pending or anticipated lawsuit to ensure that the organization complies with its preservation duties. The purpose of the hold is to ensure that the materials in question will be available for future discovery in the litigation.

Once the duty to preserve is triggered, a party organization generally must:

• Suspend its routine document retention/destruction policy
• Put in place a litigation hold to ensure the preservation of relevant documents under its control²

The following Practical Guidance resources will guide you through the litigation hold phase of the pre-litigation stage of your federal court litigation

To find this article in Practical Guidance, follow this research path:

RESEARCH PATH: Civil Litigation > Resource Kits

1. Silvestri v. GMC, 271 F.3d 583, 591 (4th Cir. 2001); Kronisch v. United States, 150 F.3d 112 (2nd Cir. 1998). 2. Orbit One Communs. v. Numerex Corp., 271 F.R.D. 429, 437 (S.D.N.Y. 2010).