Litigation strategies

When a litigation situation arises,
many people are ill prepared to
deal with the long and tedious legal process. As a result, basic misunderstandings and mistakes by clients can have
a detrimental impact on their case.

A good attorney will help a client understand the process and why things are done
a certain way, yet uncertainties and confusion may still exist, says Jennifer G.
Cooper, a partner in the Litigation Practice
at Gambrell & Stolz LLP.

“Most business people get thrown into litigation with little or no previous experience,
which can result in misunderstandings and
mistakes,” she says. “Understanding the
legal process and clearly communicating
with your attorney can go a long way in
helping your legal counsel achieve the best
possible result.”

Smart Business asked Cooper what tips
she has for people who will be involved in
litigation.

How can a client help the attorney get the
best possible result?

The most important thing is communication, which is essential to minimize any
surprises during litigation. It’s really important for clients to communicate what they
think about the case, their expectations
and things they don’t understand. It’s
important that clients understand both the
substance of the case and the litigation
process.

It’s also really important for clients to be
responsive in a timely way to their attorneys’ needs. It’s not uncommon to go for
months without any significant activity in
a case. However, when your attorney does
need information or action from you within a short period of time — usually to
meet court-imposed deadlines — it is
important that you respond in a timely
fashion. This is difficult for many clients
to understand. In the midst of also running their business, they may find it difficult to meet a deadline. Nonetheless, failing to respond in a timely manner can
have a negative impact on your case.

Lastly, clients should always be truthful and forthcoming with their attorney.
Surprises can seriously undermine your
case. Remember, your attorney is your
advocate and can deal with the good and
the bad in your case, but he or she must
have the time and resources to do so.

What are the biggest mistakes clients make
when they are involved in litigation?

Credibility is probably the most important thing in litigation. Ultimately, a judge
or jury is going to have to decide which
side it believes, so the worst thing a client
can do is compromise his or her credibility.
This can be done by not being truthful, not
meeting deadlines and taking the matter
too personally.

Another big mistake is not clearly quantifying to your attorney what your goal is
at the outset of the case. Goals can vary
from ‘take no prisoners, we must win at
all costs’ to ‘do whatever you have to do
to make this thing go away so I can get
back to focusing on my business.’ It’s
important that your attorney understand
your goals in order to meet your expectations. It is also important to revisit and, if
necessary, revise your goals throughout
the case.

How does the advice correspond to whether
the client has filed the lawsuit or is the party
being sued?

While your goals and expectations may
be different, depending on whether you are
the party being sued or the party filing the
lawsuit, it’s still important to clearly communicate your expectations and goals
from the beginning of the case and to openly and honestly communicate with your
attorney throughout the litigation process.

How can clients control costs in litigation?
The first thing they can do is make sure
they actually must pay the attorney fees.
Clients should always consult with their
insurance professional to determine
whether or not they have coverage for the
claim. Even if they don’t have insurance to
pay a judgment in a lawsuit, they may have
insurance to at least cover litigation costs.

If the lawsuit is based on a contract, they
should look closely at the contract to see if
the other party might have an obligation to
pay any fees in the event of a lawsuit, and
to make sure they are not responsible for
the other party’s fees.

Lastly, clients should discuss all options
for fee arrangements with their attorney.
Most attorneys are willing to be creative
with payment options. Some ways to structure attorney fees to meet the financial
needs of a client are contingency fees,
annual retainers, reducing the hourly rate
in exchange for a contingent bonus at the
conclusion of a successful case, and
‘blended’ rates for partners and associates.
Don’t be afraid to suggest other options.
Some lawyers even agree to a discount for
clients who pay their bills early.

JENNIFER G. COOPER is a partner in the Litigation Practice at
Gambrell & Stolz LLP, concentrating in the areas of toxic and
mass torts, product liability and commercial litigation. Reach her
at (404) 223-2201 or [email protected]

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