Whether the aggrieved party or on the receiving end of another party’s litigious wrath, business owners are rarely enthused by the prospect of a lengthy, costly, and disruptive lawsuit. Add in the risk and uncertain outcome inherent in even seemingly straightforward disputes – there is no such thing as a “slam dunk” case – and the ordeal becomes even less palatable. Sometimes, however, a trip to the courthouse is inevitable if the parties – competitors, customers, suppliers, or others – cannot otherwise bridge their differences or if quick action is necessary to protect a party’s rights.
When litigation is imminent or if a summons and complaint arrive on a business owner’s doorstep, the attorney retained by the company to handle the case can play a determinative role in whether the conflict is resolved favorably and quickly or becomes a protracted and potentially catastrophic thorn in the company’s side.
However, your company’s lawyer will require more than their own talent, experience, and zealous advocacy to obtain a positive outcome. They’ll need your cooperation and trust. They’ll need you to facilitate the involvement of relevant personnel and the gathering of information and documents. And while your attorney can develop and implement a litigation strategy best suited to achieving your objectives, you’ll have to determine and convey to them precisely what those objectives are.
In sum, your attorney will need your cooperation and involvement to ensure there are no surprises which could derail the case or alter the overall case strategy. Strong collaboration not only improves the chances of a favorable resolution but also helps control costs and minimize disruption to business operations. Here are five ways to arm your attorney with the ammunition they’ll need to win your business litigation battle.
Honesty
If there is one thing litigators hate, other than losing, it is a surprise, especially if it comes from the other side. Unfortunately, one of the most common mistakes business owners make is withholding information from their attorney, especially information they think will hurt their case. But every relevant fact will come out during the discovery phase of the lawsuit. If it is something you didn’t previously share with your attorney, they could wind up with egg on their face, or worse, a case strategy that collapses because it was based on an incorrect or incomplete story of events.
Remember that anything you say, as well as anything your employees say, to your company’s attorney is protected by the attorney-client privilege. The rationale behind that cloak of confidentiality is to encourage complete and total honesty between clients and their lawyers. Exercise that privilege to the fullest extent possible by:
- Disclosing all relevant facts, even if unfavorable. Attorneys are trained to manage weaknesses, but they cannot prepare for what they don’t know.
- Providing full access to records. Contracts, emails, meeting notes, text messages, and financial data may all be relevant.
- Sharing prior legal history. Previous disputes or settlements may impact the current case.
Establish Clear Goals and Priorities
As noted, your attorney’s approach to your case should be laser-focused on achieving your goals. While your lawyer can provide you with counsel as to anticipated risks and chances of success, the potential costs – financial, operational, and reputational – of ongoing litigation, and the broader impact of the case on broader strategic business concerns, only you can determine and tell them what your ultimate objectives are.
Before reflexively standing on principle or asking your attorney to go scorched earth on the other party, ask yourself these questions:
- What are the costs of pursuing litigation compared to settlement?
- Is avoiding negative publicity more important than winning outright?
- Can your business afford lengthy distractions, operational disruptions, and a loss of productivity from key relevant employees, or is a quicker resolution preferable?
- If the dispute is with partners, vendors, customers, or employees, is there value in attempting to preserve or repair the long-term relationship with the other party?
- How much risk and expense can your company afford in this case?
Maintain Organized Documentation
As in any type of lawsuit, business litigation often turns on the quality and availability of evidence. Business owners can significantly assist their attorneys by maintaining well-organized records so they can easily gather and share those documents with their lawyer.
Following your attorney’s guidance:
- Gather contracts, correspondence, meeting minutes, and invoices into accessible files.
- Preserve electronic data by implementing a litigation hold to prevent deletion of emails or digital files that may become evidence.
- Inform employees involved in the dispute to retain relevant documents.
- Never destroy or alter potential evidence; doing so may result in a “spoliation” of evidence accusation, sanctions, or other negative consequences.
Regular Communication
Litigation can stretch over months or even years. Consistent communication ensures alignment and reduces misunderstandings. Business owners should schedule regular updates in a mutually agreed-upon mode, whether by email, phone or video calls, in-person meetings, or client portals. You should expect your attorney to respond promptly to your emails or calls, but you should also do the same when they contact you to ask for information or advise you of any developments in your case.
Trusting Your Attorney
While you may know your business and industry “inside out,” your business is not litigation. Conversely, your lawyer spends all day, every day, immersed in litigation. You hired them for their expertise, experience, skills, and judgment, so it behooves you to trust in all those qualities they bring to the table.
This does not necessarily mean you should remain a passive, silent observer of your own case. In fact, the attorney-client relationship is inherently collaborative, and you should feel free to ask your lawyer questions, seek clarification, and ensure you understand the upsides and risks of all available options. However, once a course of action is chosen, supporting your attorney’s strategic execution helps avoid mixed signals that could weaken your case.
If you are involved in or anticipate a business dispute, please contact Ansell Grimm & Aaron Litigation Associate Gabriel Blum.