Here are 10 simple ways to lose a lawsuit ...
Misstep No. 1: Hire A Law Firm And Not A Lawyer.
Law firms do not write briefs or argue in court; lawyers do. No matter how impressive its reputation, a law firm is only as good as the lawyers who are working on your case. Most mid-sized companies that contact a law firm for the first time will not get that firm’s best litigators. And that senior and polished attorney who attended the first meeting may not be the attorney who actually does the work on your case. You need to identify, and develop a comfort level with, the attorney who will serve as your guide (and bodyguard) through the litigation process.
Misstep No. 2: Hire The “Top” Firm In Chicago.
There are a number of large, well-known law firms in Chicago with truly outstanding litigation attorneys. These firms, however, are designed to service large public corporations. With their rate structures, they rarely can handle a small to medium- sized lawsuit in a cost-effective manner. If you end up incurring legal fees that are disproportionate to the amount in dispute, you will have lost your case regardless of what the judge or jury decided. What you need is the lawyer in Chicago who is best suited to your case.
Misstep No. 3: Find Someone To Say What You Want To Hear.
The pressure on lawyers to generate legal business, and the competition for clients, can be intense. In this environment, many attorneys will tell you, as a prospective client, what they think you want to hear. This approach is encouraged by the fact that at the start of a case, many clients are angry and hold a highly partisan view of the facts. You are hiring a lawyer, not a cheerleader. What you need is a lawyer who is willing and able to give you the bad news with the good; to offer you a realistic assessment of your chances of prevailing in the dispute; and to recommend a sensible and cost-effective litigation strategy.
Misstep No. 4: Litigate Just For the Principle Involved.
At the start of a case, clients sometimes vow to fight to the bitter end, no matter how much money or disruption is involved, for the sake of a perceived principle. Those clients usually lose their enthusiasm for the case, and the principle at stake, after receiving a few fat legal bills. In the context of a civil lawsuit, there are very few principles more important than the best financial interests of your business. Your attorney should help you evaluate a case according to the likely financial impact of the dispute on your company, including the legal fees you will incur, to make certain that you are litigating for the right reasons from Day One.
Misstep No. 5: Mistake Tough Talk For Aggression.
There are clients who look for a “pit bull” to represent them in a lawsuit. While belligerence may be valuable in a dog fight, the battles that take place in courtrooms and conference rooms require a different and more sophisticated form of aggression. It is very easy for attorneys to talk a tough game with their own clients, and to write nasty letters to the opposing attorney. What is hard – and what truly constitutes the aggressive handling of a lawsuit – is analyzing a case earlier and better than your opponent, being more diligent and timely than the other lawyer, and putting the maximum effort, skill, and care into each working hour.
Misstep No. 6: Wait Until The Eve Of Trial To Value A Case.
An all-too-common approach to litigation is to wait until a trial is scheduled to put a realistic dollar value on a case. With your attorney’s guidance, you should be able to place a dollar value or reasonable range on most disputes from the onset. Asking the other side to settle a dispute early on for what you reasonably see as a positive result is a sign of intelligence, not weakness. A case can be harder to settle (and the vast majority of cases do, in fact, settle) once both parties have poured three years’ worth of legal fees into a case.
Misstep No. 7: Allow An Attorney To Make A Trial Unfeasible.
With a trial approaching, some attorneys tell their clients that a case has to settle because a trial would be too expensive. Most likely, those attorneys are admitting that they did not properly evaluate and shape the case from the start. Every case can be handled, and tried, in a manner that is consistent with the amount of money at stake. An attorney needs the vision, confidence, and experience to streamline a case in an effort to eliminate factual and legal issues – as well as motions, experts, exhibits, and witnesses – that are superfluous to the concise and persuasive story to be told at the trial. By focusing the case early on, and concentrating your legal resources on the key issues and witnesses, you also show your opponent that you are ready and willing to go to trial – which, in turn, enhances your settlement position.
Misstep No. 8: Let The Case Follow “Standard Procedures.”
There are many attorneys who approach litigation as a series of standardized procedures. These attorneys, for example, will file a motion to dismiss a complaint without regard to the likelihood of the motion’s success; the cost-benefit of the motion; or the impact of the motion’s filing on the overall strategy in the case. The reasons are several. Many attorneys are personally adverse to risk, and they want to avoid being second-guessed by a client, an in-house counsel, and/or the senior attorney on the case. Also, many lawyers are insulated from the realities of the business world and are incapable of conducting a meaningful cost-benefit analysis. And, it is sad but true that some lawyers are more interested in making money for themselves than they are in spending your money wisely, gaining your trust and confidence, and earning your repeat business.
Misstep No. 9: When A Defendant, Act Defensively.
Too many lawyers have their clients respond to a lawsuit by acting like turtles. These parties retreat into their shells, react to the plaintiff’s filings, wait to see how the facts shake out in the discovery process, try to slow the litigation to a crawl, and hope that the plaintiff self-destructs. This usually is a poor strategy. The beginning of a case is a time for a defendant to be proactive and aggressive. Defense counsel should find relevant documents before being asked for them, speak with potential witnesses long before depositions are noticed, and analyze legal questions well before they are raised in an opponent’s brief. This will enable a defendant to develop themes for the case that can be articulated and supported at every step in case. Furthermore, some plaintiff’s lawyers perform poorly when forced to litigate at a faster-than-normal pace, which rebounds to a defendant’s advantage.
Misstep No. 10: When A Plaintiff, Ask For Excessive Damages.
There is an old expression that “pigs get fed, but hogs get slaughtered.” Overreaching on the scope or the amount of damages sought is one of the surest ways for a plaintiff to wind up empty-handed. Many attorneys ask their clients or expert witness to try to justify the largest damages number possible. As a plaintiff, your position on damages is not the opening bid in a negotiation with the judge or jury. Instead, a plaintiff’s damages request should be directly tied to, logically consistent with, and proportional to the liability themes of the case. A speculative or bloated damages claim – in addition to presenting an inviting target for the defense – carries with it the risk of damaging your credibility in the case.
Avoiding these missteps should help you to formulate realistic goals, hire appropriate legal counsel, and gain more control over the litigation process. With a little luck, you will find yourself on the long end of the stick.