There are many business people who, having lived through the expense, time and frustrations of a lawsuit, might agree that it can be difficult. But what can be done by a business executive to help make the litigation process tolerable, if not exactly enjoyable?
As a partner at International Law Partners, a firm the focuses on contracts, civil litigation, real estate, condo association law, construction litigation, employment, and civil appeals, I understand the legal ramification of business litigation.
Here are some tips on how to select and then manage lawyers in business litigation:
- Take time in choosing your lawyer.
New Mexico is home to more than 5,000 licensed attorneys. You have a choice. Given the pace of modern day civil litigation, you will spend a lot of time with your lawyer and will need to depend on her or his judgment. Interview two or more attorneys with experience in the area of the law involved (avoid paying someone to learn an area of law they are not already familiar with). Ask the lawyer how many cases of the kind you have they have already handled. From among the experienced lawyers you identify, choose the one you feel comfortable with. Don’t begin a case with someone you don’t fully trust. It will be expensive and disruptive to change lawyers later. Any lawyer worth his or her salt will be interviewing you, too, to make sure they are comfortable with you as a client and to get a feel whether you would be a good fit working together.
- Manage expenses.
Litigation can be freakishly expensive. If you are defending a civil case, ask your lawyer if any of your business insurance policies might provide coverage. Do this at the beginning. If your case is not covered by insurance, you can control some of the expense by telling your lawyer that you want a litigation plan and a budget. Have the lawyer identify in the plan and the budget the tasks that must be done and those that can be deferred or that are optional. Tell the lawyer that you want to be consulted in deciding whether the benefits of that extra deposition or extra motion are worth the expense, and whether he or she will attend certain out-of-town depositions in person or on the telephone. At the same time, understand that your lawyer controls less than half of what happens in a case. Every motion the other side files must be responded to and every hearing the court sets requires additional work by your lawyer.
3. Communicate your objective.
Tell your lawyer whether it is your goal to settle the case or to try it to conclusion as soon as you know. Some studies suggest that as many as 95 percent of all civil cases are settled or dismissed before trial. It’s no secret, therefore, that it makes sense to identify those cases that can and should be settled early. And there are a number of ways to accomplish this, including through targeted discovery leading to an early settlement conference or a decision to resolve a matter through arbitration. If you don’t tell your lawyer you’d like to explore settlement, he or she may misunderstand your objective. Make sure to tell your lawyer when your objective changes. Sometimes a case that looks like a “slam dunk” when begun becomes a little less certain as the case goes on. If you have a change in outlook, tell your lawyer.
4. Stay in touch.
Make clear to your attorney how often you want updates on your case, and whether you want to see every piece of correspondence and document exchanged or only the highlights. Tell the lawyer if you want to see drafts of letters and motions or just the finished product. Some clients set up weekly or monthly calls to discuss a case and monitor its progress, and yet others want regular written reports. Lawyers are used to each of these methods. But don’t leave them guessing.
5. Ask how long it will take to resolve your case.
Litigation can take a long time. It is not unusual in New Mexico for a case to remain pending for two years before it gets to trial. And even after trial, it can take two years or more before an appeal is concluded. There are some steps your lawyer can take to help expedite a case, but the pace of a case is mostly out of your attorney’s control because of the sheer volume of other cases waiting their turn before a judge or jury. Ask your lawyer at the beginning how long you can expect the case to take and adjust your expectations accordingly.
6. Give your lawyer the contents of your files early.
All clients are frustrated with “discovery,” the name given to the process involving the exchange of documents and other information in civil cases. The rules of discovery require all parties to a case to exchange a lot of information that most business people feel is no one’s business and has no relation to a lawsuit. But discovery is required by court rules. The courts find a lot of information to be “discoverable” that no business person would think is fair play. (The theory is that all parties are entitled to have access to all “potentially relevant” information and that, if they have that information, it will assist in resolving factual disputes and allow the parties to find a way to settle the case). If you have a lot of documents in your case, let your lawyer identify them in a single swoop early in the case. Don’t piecemeal the discovery process. Having to repeat document searches over and over again as a case continues is very expensive. Better to do it once at the beginning and be done with it.
7. Be candid with your lawyer.
Share the good, the bad and the ugly with your lawyer at the beginning of the case. Your communications are covered by the attorney-client privilege. Your lawyer can neither advise you nor help you deal with uncomfortable facts or circumstances if you keep him or her in the dark. Many a case is harmed, sometimes beyond repair, when a lawyer finds out too late something that he or she might have dealt with effectively if disclosed by the client early in the case.
8. Give feedback.
If you are worried about something, raise it promptly. If you are unhappy with how the lawyer is handling your case, ask for a conference. Lawyers are trained problem-solvers and they don’t want an unhappy client if they can avoid it. If your lawyer does a good job, say so. Lawyers are people too.
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