If you operate a business, someday you will find yourself in a dispute, or even embroiled in litigation. Whether you receive a complaint from a disgruntled former employee or you find yourself looking for the best way to recover money that your business is owed, you need another player on your team.
“Many business people believe that the litigator, unlike the transactional adviser, is a lawyer to be avoided until the last possible minute, in order to save money,” says Anne Owings Ford, a member with McDonald Hopkins LLC. “My experience tells me that a different model is better.”
Smart Business spoke with Ford about how litigation attorneys can support business owners and improve the business’s bottom line.
Doesn’t a litigator deal with cases that are going to court, to arbitration or to mediation — in other words, disputes that already exist? Why should I talk with a litigator in the absence of a dispute?
Certainly, an experienced litigator should be familiar with and very comfortable in all of those arenas. But a broader view of the role of a litigator is most beneficial to the business owner, both in terms of peace of mind and cost savings.
For example, several years ago, I had a business client that was keeping me busy defending it in small controversies across the country arising out of its form sales contracts. I handled dozens of these matters, some just at the letter-writing stage, and others in full-blown litigation. My client contact called me one day and said, ‘We’d like you to look at this contract and see what we need to do to improve it, so that we can avoid these issues, rather than having to keep fighting them.’
I spent a few hours reviewing and reworking the contract, with an eye toward the provisions that had generated the most claims. I consulted with a transactional colleague to get her view of the contract. Then I returned the revised contract to my client, and they began using it right away. The claims dried up and I turned to other matters.
That was a powerful lesson: Consider whether you can save major attorney fees by spending a few dollars up front to identify problems before they end up in court.
Are there other reasons to talk to my litigation attorney outside the courtroom?
Your litigation attorney can help you deal with some of the least pleasant aspects of your business life. Consider the following:
* If your business receives a claim letter, your litigation attorney can help gather information, plan a response strategy, interview employees, run interference with your board and communicate with your insurer.
* If your business needs to advance a claim against a competitor, supplier or customer, your litigation attorney can help you frame the claim properly, to take into account not only the value of the claim but also the nature of the relationship and other competing factors. Your litigation attorney also can work with you on the proper approach, from a strongly worded letter on law firm letterhead to a complaint filed in federal court. Different disputes call for different approaches to resolve them.
* If your business is experiencing a high volume of a particular kind of claims, your litigation attorney can help you investigate whether there is a way to change your process to limit future claims.
* If you are experiencing pushback from within your organization regarding a dispute you feel needs to be addressed, your litigation attorney can help air the issues and offer constructive advice to get all players on the same page.
What should I expect from my litigator, in or out of a lawsuit?
You should have high, although realistic, expectations of your litigation attorney. You should expect not only prompt responses to your questions but also periodic updates, even if it’s only a quick email to let you know that the court has not yet issued a ruling. Your litigator knows that you have people looking to you for answers; it is the litigator’s job to provide them.
You should expect your litigator to be available to you when you need help. The kinds of issues that litigators address don’t always arise at convenient times. (Think an explosion at a plant or a confrontation in the office.) Litigators work hard to be readily available and you should expect to be able to reach them.
You should also expect your litigation attorney to explain to you — and to help you explain to your managers, your board and your insurer — your company’s options, as well as the litigation and dispute resolution process. The landscape can change quickly when you’re dealing with a litigation issue, and you should expect to be able to ask questions whenever you have them.
Finally, you should expect your litigation attorney to care, not just about a single crisis but about your business and its issues. Your litigator needs to know what’s going on in your world, because he or she can’t know whether one issue is related to another without knowing what they are.
Why can’t the attorney who provides my transactional advice do these things for me?
Your relationship with that attorney is an important part of your business, and no litigator is looking to interfere with it. That said, the litigator’s focus is different. Your business adviser is looking at the big picture, working to help you maximize your bottom-line profit and minimize costs of doing business. On the other hand, your litigation attorney can help you evaluate whether a specific issue is likely to blow up into multiple, high-dollar-value claims, or if the right approach may help snuff it out.
Litigators are geared toward identifying claims and lawsuits, so that if you talk with that attorney sooner rather than later, you may be able to advance a proper claim in a cost-effective manner, or address a bogus claim with a minimum of fuss. Ultimately, good litigators want to help you address claims — yours or anybody else’s — efficiently. If you call them, they can do exactly that.
Anne Owings Ford is a member with McDonald Hopkins LLC. Reach her at email@example.com or (216) 430-2001.
Insights Legal Affairs is brought to you by McDonald Hopkins LLC.