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Being a litigator or trial attorney sometimes means going out on a limb with an untested or novel legal theory.
Testing the waters of a new theory, or even a new law, can be scary. Judges will often scrutinize your case a little more closely and you won't have the benefit of practice guides or precedent to tell you what to do. What's worse is that there's no clearly established precedent to rely upon either. But on the plus side, judges do like hearing cases of first impression.
Here are three tips on pursuing a novel litigation strategy:
When a legal theory is only novel in your jurisdiction, and has been tested elsewhere, if you get the test case, it can definitely be worth pursuing. However, before taking a novel approach, you still need to measure the benefits and weigh the risks. Definitely do not eschew a typical claim for a novel one as you can always plead both, and drop one before it goes to the jury or judge for deliberation.
There's no denying that attorneys work in the service industry. If you aren't working on a contingency, or even if you are, you may need to have a chat with your client before pursuing a novel theory. If a client actually reads a dismissal order where you got benchslapped, the client may start wondering why they are paying you.
However, even if a novel theory is a long shot, some clients may want to take the risk, particularly if there is some positive PR to be gained.
The most important consideration you should make before deciding to pursue a novel or untested theory is whether you can be sanctioned. Generally, so long as you have not made a frivolous claim and/or had an improper purpose for filing the claim you will be safe from sanctions under Rule 11 (though jurisdictional requirements do vary).
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