The adage that "it is more difficult to build a house than it is to tear a house down" is a phrase often used by legal practitioners to describe the role of the parties to litigation. The adage refers to the role the plaintiff has as architect of the lawsuit in his/her pursuit of satisfying the appropriate burdens of proof. Conversely, the role of the defendant is to poke holes or tear the plaintiff(s)' story--or house--apart. The most important single advantage that the plaintiff has is the benefit to design a house strong enough to fully inform, yet withstand the attack.
It would seem to be obvious that upon building the house, two issues are paramount. One, building a house sufficiently durable to withstand the inevitable forces that will arise for the ultimate objective of two, receiving compensation for harms and/or injuries sustained. During the course of my career representing parties on each side of the "v," I've seen seemingly far too many plaintiff practitioners lose sight of the second and ultimate objective and opt for a house with more amenities and extras, at the cost of durability and through poor pre-pleading planning have had "the money" taken off the table. This is almost always in the form pleading themselves out of what would otherwise be available insurance coverage. Notably, this applies equally to both personal injury, as well as commercial litigation.
By way of example, in many construction contracts, many plaintiffs find it far too tempting to resist the urge and ultimately allege that a contractor performed a given task in a "poor workmanlike manner" which, in far too many circumstances is not be a covered event pursuant to an applicable policy of insurance. In such instances, it may well be recommended that just because you can plead "poor workmanship" and add that to your house, that one avoid the "extra amenity" in exchange for a stronger more durable house.
In personal injury actions that involve aspects of intentional acts but where there may be another available defendant, again, proper pre-pleading planning may be the difference between receiving a paper judgment and receiving actual compensation. The examples are plenty, but one such example may arise (and has frequently) in the context of "really excited bar bouncers" in the process of removing the subsequently unwelcome patron that ultimately suffers an injury as a result of the "conduct of removal." While there may be little harm to allege the "intentional conduct" of the bouncer, actual recovery may well lie with the responsibility of the employer. Careful pre-pleading planning as to the house you build against the employer may well make the difference whether the client will actually recover for the injuries, or simply have bragging rights. In such an event, the practitioner must be mindful of the improper conduct of the employer, for example, negligent supervision, retention or hire of the particular employee and remain focused there in anticipation of the inevitable denial of coverage based upon intentional act exclusions anticipated within a policy.
When practicing from the left side of the "v" the value of proper pre-pleading planning can not be emphasized too much and ultimately your efforts will not be unappreciated from those that practice from the right.
