A legally recognized claim is referred to as a "cause of action." The law imposes time limits for suing on different causes of action, commonly referred to as "statues of limitation." If an action is not filed within such time limits, the action becomes "time barred." A time-barred cause of action no longer exists. This is perhaps the most damaging mistake a plaintiff can make.
Improper Causes of Action
A fact pattern may give rise to various causes of action. Although the relief awarded under these causes of action may be similar, there may be other advantages to pleading all causes of action in the alternative. For example, the causes of action may have different statutory time limitations, or one may be easier to prove. Prior to the trial, plaintiff will be able to choose which cause of action will be best to proceed on, and dismiss the remaining causes of action. I believe the second largest mistake a plaintiff can make is to plead causes of action that are not available, or fail to plead other available causes of action.
Litigation revolves around facts. Perhaps 90% of a litigator's time and energy is spent on discovering and analyzing the facts of the case. A properly-planning litigation strategy will entail a discovery plan. Since opposing parties sometimes tend to hide the ball so to speak, a good discovery plan not only seeks to discovery all relevant facts, witnesses and documents, and also commences early enough to allow time for any necessary motions before the court. Perhaps the third largest litigator mistake is to fail to propound proper discovery requests, or to do so in an untimely manner.
Missing ADR Opportunities
With the large backlog in most courthouses, courts often encourage parties to participate in alternative dispute resolution (ADR) programs. Such programs include mediation, arbitration, and settlement conferences. Often times, the ADR neutral is able to speak to the parties and point out the weaknesses and strengths of each cases. If this results in a resolution of the case, the parties may be able to cutoff any future litigation costs. If no resolution is reach, the parties are nevertheless educated about the possible weaknesses in their cases and can attempt to better prepare for trial. Perhaps the fourth larges mistake a plaintiff can make is to refuse to participate in ADR programs.
Poor Trial Preparation
Trial is the ultimate resolution of a lawsuit. Although most cases are resolved without a trial, it would be the ultimate mistake to properly prepare for the trial from the early stages. Each of the above get the party one step closer to trial preparation, but more that that is needed. A well-planned trial will consider much more than the cold facts of the case and the applicable law. The finder of facts will also have to be impressed with a proper presentation. Experienced litigation attorneys often hire consulting firms well in advance of trial to help them rehearse trial questioning, evidence display (such as Powerpoint presentation), and even the demographics of the venue where the suit will be filed. Poor trial preparation is perhaps the fifth mistake a plaintiff can make.
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