For businesses, legal disputes and litigation can be problematic. Businesses not only bear costs associated with litigation in the form of attorney’s fees, but also costs associated with the time spent by employees on the dispute. Employees of a business involved in a legal dispute may spend time gathering relevant records, preparing for and attending depositions, and making decisions about the handling of the case. If the matter is not resolved prior to trial, additional employee time will be required for the trial. In addition, there can be emotional costs associated with legal disputes as they are mentally taxing on the involved parties.
With all this in mind, I would like to share three tips that I believe can help keep litigation costs down and help to achieve a desired result in a legal dispute.
Tip 1: Communicate early and often
Good communication between attorneys and clients increases the probability of success in a matter. The more your attorney knows about your case and the more documentation he or she has to support your position, the better off you will be.
Seemingly minor details like a three-year-old e-mail or company document, an obscure memo, or a recollection of a conversation with the opponent can make a difference in legal disputes. Only through effective communication and flow of information will your attorney have access to these potential gems. Further, talking with your attorney about the legal dispute may help alleviate stress and concerns you have about the case. Spending the time on the front end with your attorney will likely save you in emotional and financial cost on the back end.
Tip 2: Be appropriately engaged in the dispute
Somewhere on the theoretical continuum between complete disengagement and being overly concerned about a case is the sweet spot of appropriate engagement. For example, when your attorney sends you those extremely tedious discovery requests from your opponent, try to review them carefully and provide complete responses. If you can’t figure out what the requests mean (and this is not uncommon – sometimes they just don’t make sense), call your attorney and ask. That’s textbook appropriate engagement. Does active participation raise your costs in that time is spent on the litigation and not on your business? Perhaps, but being engaged in the case can save on costs down the road by contributing to a better result.
Like communication, engagement requires the cooperation of both parties, so your attorney must be prepared to engage with you as well. Assuming this cooperation is achieved, partnering with your attorney in a legal dispute, will always pay dividends in the result. There may be occasions where it is nearly impossible for you to devote time to your dispute due to other business or personal pressures. A good partnership with your attorney, however, will allow you to persevere and achieve the best result under the circumstances.
Tip 3: Consider Alternative Dispute Resolution
Alternative Dispute Resolution (“ADR”) is resolving your dispute, before or during litigation, outside the courtroom. The most popular ways ADR methods are mediation and binding arbitration. Mediation and arbitration have become extremely popular as the costs of litigation rise. Often, retired judges or experienced attorneys serve as mediators or arbitrators and preside over your dispute. For example, Monterey County Superior Court has a court-directed mediation program that is often used to resolve ongoing litigation at early stages before litigation costs mount.
As a former prosecutor with significant trial experience, I understand that some cases must be tried in the courts. There are many potential reasons why a case may be difficult to settle. Perhaps the parties’ positions on settlement are too far apart or there are novel or complex legal issues that make it difficult to evaluate case value. That being said, the vast majority of cases do settle and ADR can be an efficient way to settle a dispute at a fraction of the cost of taking a case to trial, and potentially through appeal. Chances are, your attorney has already considered some form of ADR for your dispute and would be happy to explore the topic with you further.
I hope your business never has to deal with legal disputes or litigation, but if it does, the three tips above are meant to provide some suggestions on how you can positively impact your case if you find yourself involved in a legal dispute or litigation.
This article is intended to address topics of general interest and should not be construed as legal advice.
© 2017 Noland, Hamerly, Etienne & Hoss, Nick Smith