Defending against liability Featured

7:00pm EDT December 31, 2006

Being sued for liability is one of the risks professionals such as accountants, insurance agents, attorneys, and directors or officers of a business take. The best defense against liability lawsuits is to prevent them from being filed in the first place. Therefore, it is in the best interests of professionals, directors and officers to retain the best defense attorneys possible when liability lawsuits are filed against them. Ideally, the attorneys should specialize in liability issues.

“Attorneys can help minimize defendants’ exposure and sometimes get them exonerated,” says Bruce Bowman, a partner with Godwin Pappas Langley Ronquillo LLP. “Defense attorneys can help resolve disputes before they get to court, which results in cost savings for the defendant, but if not settled can actually try cases and convince the jury their clients’ conduct was proper.”

Smart Business talked with Bowman about how attorneys defend their clients in liability lawsuits, how the two can work together to gain favorable outcomes, and how clients can actually save money by establishing long-term relationships with attorneys to forestall lawsuits before they are filed.

Are there differences in liability lawsuits among professionals, directors and officers?

Generally, lawsuits filed against professionals involve the actual work they do. For example, the plaintiff might have had misguided perceptions and expectations about the services the professional was to perform. When the services were not performed to the client’s satisfaction, a lawsuit resulted.

Lawsuits against officers or directors revolve more around vicarious liability. They are not aimed at something the director or officer has done personally, but at something done by an employee of the corporation that the director or officer should have caught, or a perceived misuse of the director’s or officer’s personal position. In any case, the result is the same: the client needs an attorney to defend him. The best time to retain one is before a lawsuit is ever filed.

How can attorneys protect their clients from liability lawsuits before they arise?

One of the best ways is for attorneys and clients to establish an ongoing working relationship that includes counseling and education. Clients should be willing to keep their attorneys advised of events in their work-related endeavors, which gives them the opportunity to provide counseling before anything untoward happens that might lead to a liability lawsuit. And the attorneys can offer education sessions that focus on legal and ethical business practices as a way of forestalling liability lawsuits.

Clients who wait to hire an attorney until after being sued may end up paying a lot more for legal expenses in such cases than they would if they had established an ongoing relationship earlier.

What can an attorney do to defend a professional, director or officer in a liability lawsuit that the individual cannot do himself?

The answer to that question seems obvious. After all, an attorney is trained in law and experienced in courtroom procedures. But there are times when professionals, directors and officers think that if they can explain what they did to the plaintiffs or their lawyers, the lawsuit will suddenly disappear — especially because they are sure they did nothing wrong.

People have to remember that lawsuits are not always about right or wrong. They are often aimed at a monetary settlement, which explains the need for defense attorneys in liability lawsuits.

Defense attorneys are more objective in their approaches to defending a client and the nuances of the law, and can provide a buffer between defendant and plaintiff. That is important, because emotions sometimes run high in a lawsuit, and clients often have misguided perceptions and expectations about what has to be done to resolve it. Attorneys can also encourage clients not to talk directly to the other party in a lawsuit, which some of them might want to do in an effort to settle it independently. That is not a viable way for clients to resolve a liability dispute.

What criteria should a defendant apply when hiring a defense attorney in a liability lawsuit?

A key criterion is to look for an attorney who has experience in a courtroom, or who at least has access to co-counsel who does. Some attorneys can make things look good on paper. They can do excellent transactional work, but they have never actually had to defend it before six or 12 people, depending on the size of the jury.

Other factors to look at are where the trial is to be held, who the judge is, the size of the jury and whether the attorney has a good working relationship with a jury consultant in order to get a ‘mind read’ on prospective jurors. Being able to do that is helpful to the defense attorney and the defendant as well.

BRUCE BOWMAN is a partner in the Dallas office of Godwin Pappas Langley Ronquillo LLP. Reach him at (214) 939-8679 or bbowman@godwinpappas.com.