Prosecuting and Defending RICO Claims
If you’ve read my previous few posts, you may think that I hold a generally negative opinion of civil RICO. Not true! Although I am cautious and meticulous during pre-litigation investigation, once we decide to “pull the trigger” and file a case, my litigation team is relentless in pursuing it. By the time we file the complaint, we have decided that the defendant deserves to be “pulled through the knothole.” We are aggressive because we can be – we have done our homework and we know we have a good case. We have the forensic proof in hand and supported by at least one expert’s report and affidavit. This approach often overwhelms the unsuspecting defendant and his unprepared counsel.
On the other hand, if we’re defending, we undertake a thorough investigation of our own as soon as the defendant retains us. Because of the complexity of defending civil RICO claims, most experienced lawyers require a large retainer to support an early concentration of efforts, including engaging one or more experts. Since the linchpin of a RICO claim is damage, most cases require us to hire a forensic accountant or certified fraud examiner right out of the starting blocks. From day one, we commit to a tenacious discovery effort. Delay in launching comprehensive discovery is not an option. Work must commence immediately to marshal the facts and law necessary to move for dismissal of the case at the earliest possible time. The defendant’s reputation is at stake and, as his counsel we must make every effort get the RICO claims dismissed as soon as possible. Then, we can concentrate on defending against the other claims, if any. If our motion to dismiss is not granted, then our efforts shift to eliminating the RICO claims on summary judgment. Sometimes, we file a motion to dismiss for failure to state a claim and a motion for summary judgment at the same time. This gives the judge an opportunity to learn a lot about the facts and applicable defenses very early in the case.
Of course, while we are working our defense we expect that a well-prepared plaintiff’s lawyer will already have his opposition to our motion to dismiss and motion for summary judgment ready to go.
RICO lawsuits are demanding, exciting, and exhausting for both sides. Lawyers and their clients engaged in these cases better be prepared for the sting of battle – they better “. . . love the smell of napalm in the morning. . . .” ala Robert Duvall, Lt. Col. Bill Kilgore, in Apocalypse Now --
Kilgore: Smell that? You smell that?
Lance: What?
Kilgore: Napalm, son. Nothing in the world smells like that.
[kneels]
Kilgore: I love the smell of napalm in the morning.
