Clients often make the same mistakes no matter what facts give rise to litigation. Here are five tips I often find myself sharing with my civil litigation clients.
These apply equally to governments, private companies, and individuals of all backgrounds facing litigation. Following these tips should foster better relationships with counsel, and potentially lead to lower costs, and earlier resolution of contentious issues.
First, obtain adequate insurance before it is too late. Far too often organizations big and small seek out the minimum amount of liability insurance. While there can be justifiable reasons for this, the best practice is to make a full risk assessment and purchase the level of liability insurance to address the likely claims that could be confronted in the future. Consulting with an attorney to understand recent verdicts and settlements may help an organization determine the appropriate level of insurance. The danger of under insurance is the potential for personal liability if a jury’s verdict exceeds policy limits. By obtaining an appropriate level of insurance, an organization will have one less thing to worry about in the event of a claim being made against it.
Second, try to build a relationship with the person who will handle your claim, or matter, before the time comes to make or defend against a lawsuit. This person could be a claims adjuster at an insurance company, outside counsel at a law firm, or another type of risk manager. Establishing relationships with these individuals before a claim arises will pay dividends when stressful litigation develops. Having open lines of communication will foster the opportunity for the best response when time is of the essence.
Third, have systems in place to preserve digital information and regularly make sure those systems work correctly. In our increasingly digital world, backups are necessary for everything ranging from saving family photos to preserving highly sensitive proprietary information. It is not enough to assume an automatic backup system is working without in depth and regular testing. Organizations must dedicate resources toward testing their backups, so that they are ready whether the organization is faced with a ransom ware attack or the need to preserve information for litigation. Giving backups the care and attention they deserve also helps when litigation involves forensic auditing of access to or modification of documents. More often than not, an organization with a well-maintained digital infrastructure will accomplish its goals in litigation faster and at lower expense than those that place little or no emphasis on their digital infrastructure.
Fourth, and perhaps most importantly, when given notice of a potential claim, reach out to the claims representative or outside counsel at the earliest opportunity. Litigation related problems do not go away on their own. Far too often clients who have not faced litigation in the past are too afraid or embarrassed to reach out to their claims adjuster or outside counsel immediately. But delaying this initial conversation will not help the cause. In fact, getting in touch with counsel as soon as possible will maximize the chances of attaining the client’s goals. Timing is incredibly important, especially at the early stages of new litigation. Important deadlines, like responding to the complaint, approach rapidly at the onset of litigation. Additionally, there are opportunities to gather information for certain types of claims before a lawsuit is filed in some circumstances. For example, most medical malpractice and civil rights lawsuits have pre-suit notice requirements. These pre-suit notice requirements may create the opportunity to seek out expert support, or may give counsel the opportunity to negotiate an early resolution to reduce costs. Simply put, reach out to counsel as soon as possible when there is a threat of litigation.
Last, but not least, strive to have clear goals and discuss these goals with counsel. Of course, the goal in civil litigation can be simple and clear when the claim involves alleged liability for a bodily injury. But goals can be less clear in certain business disputes or claims involving licensing, real property, or “specific performance” of contracts. For instance, the client and attorney need to be on the same page when a dispute involves filing a counter claim in addition to defending against litigation. Setting goals early helps maintain an efficient strategy. Revisiting goals as a case progresses is also important when circumstances change. Being realistic about each goal will also make difficult decisions, like those related to settlement versus going to trial, easier to make.
These five tips are no substitute for having detailed discussions with your insurer and attorney when litigation is on the horizon. But with these tips in mind, you and your organization will be taking a step in the right direction to achieve your goals while utilizing resources efficiently.
