Litigation strategies Featured

7:00pm EDT November 24, 2006

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 jcooper@gambrell.com.