disputes by litigation is time-consuming, costly and inefficient.
To remain competitive, avoid litigation through the provision of
well-managed, quality products and services, open and timely
communications, experienced legal advice, and prompt attention to early
litigation is unavoidable, conduct your litigation in a cost effective
manner and pursue alternative dispute resolution proceedings which may
result in faster, cheaper and no less detrimental results than
litigation. The courts
should truly be your last resort, absent special circumstances.
your corporate attorney, or other responsible manager, should be
assigned to manage your large claims and litigation.
Guidelines like those below will assist you to effectively manage
your outside lawyers. Compliance
with your guidelines will determine which lawyers are retained by you in
Go for the heart
of the matter. Strip away
the inessentials and constantly consider ways to narrow your case to
your strongest issue(s). Do
not waste time and money on areas or issues which are unlikely to affect
the final result. Drop contentions of dubious merit, rather than wasting your
resources proving or defending them.
Actively and constantly support reasonable settlements and
alternative dispute resolution approaches.
lawyers should quickly provide you a written report outlining the
substantial issues, their strengths and weaknesses, their probabilities
of success, and the probable range of exposure to you in dollars,
additional litigation, unfavorable precedents, and the applicability of
various alternative dispute resolution techniques.
This report should be updated periodically.
One lawyer should be responsible, take a "hands on"
approach, stay on top of the case from "day one", read the
documents, take the depositions, and regularly discuss the status of the
case with your firm. Without
approval, only one lawyer should attend each deposition, hearing,
meeting and the like. Other
lawyers and paralegals should be brought into the case only as needed
and only after obtaining your approval.
Subscribe to the "1-1-1 Rule", i.e. one partner, one
associate, and one paralegal deployed in the most cost effective manner.
Do not pay for the costs of bringing replacement lawyers or staff
members "up to speed".
3. Use Firm Personnel.
Your firm can perform many litigation tasks more efficiently than
outside lawyers, such as (1) search for documents, (2) contact, schedule
and interview internal witnesses, (3) assist in preparation of
interrogatory answers, and (4) research facts.
Your firm will have familiarity with particular aspects which
might take your lawyers substantially more time to attain on their own.
4. Attempt Early Settlement.
Early settlements often are as good as or better than those
ultimately reached after exhaustive discovery and procedural battling.
Even if you do not settle early, you should periodically evaluate
the case for settlement. If
you are named in a lawsuit simply as another deep pocket, have your
lawyer immediately examine every relevant document to determine if there
is any reasonable basis to tender defense of the lawsuit to another
5. Alternatives to
outside lawyer should recommend an alternative dispute resolution (ADR)
approach. ADR will not be
applicable to all cases, but your firm should have a strong bias toward
settling disputes through ADR. Alternatives
include mediation, arbitration, mini-trials, and others.
You should include language in your contracts and purchase orders
requiring mandatory ADR proceedings before any party may bring suit
against you. ADR will
narrow claims, surface true issues, and motivate reasonable settlement
sooner, even if ADR does not itself resolve the dispute.
6. Eliminate Delays.
Pursue each case aggressively, unless circumstances clearly show
otherwise. You want to make
clear to your adversaries and the courts that you intend to move the
case to ADR or trial as quickly as possible.
You want to pressure your adversary to (1) settle, (2) simplify,
(3) accelerate their preparation, and (4) reduce your litigation costs.
7. Avoid Procedures of
Limited Impact. Court
motions should be evaluated in light of the overall strategy of the
case, additional costs and delays, and whether the motion really will
determine the outcome.
8. Reduce Discovery Costs.
Discovery disputes delay litigation and drive up costs.
Your lawyer should establish a good working relationship with
opposing counsel; reduce formalities, and exchange documents and
information with a minimum of paperwork and arguments.
Opposing counsel who abuse discovery should be brought before the
courts, which are becoming more intolerant of discovery abuse.
Only necessary and focused depositions and interrogatories should
be taken. All parties
should concede and stipulate to essentially undisputable facts and legal
9. Use New Technologies.
Letters cost money. Use
email. Send documents for
electronic comment and editing. The
use of “revision mode” allows everyone to immediately see any
10. Billing Particulars.
Manage your dispute resolution costs carefully, as any
sophisticated, business client should.
Require your legal billings to be regular and in sufficient
detail to allow you to review what specific services were being
provided. While attorneys
should profit from their hours spent, they should not profit from
reimbursable costs, nor should normal overhead be billed.
with experienced corporate counsel to develop litigation guidelines and
to actively manage substantial claims and litigation on your behalf.
Reduced litigation will allow you to focus on your business and
benefit your firm’s bottom line.
The purpose of this article is to provide information, rather than
advice or opinion. It is accurate to the best of my knowledge as of the
date of the article. I have no duty to update this article. The
information, examples and suggestions presented in this article have
been developed from sources believed to be reliable. This article should
not be viewed as a substitute for the guidance and recommendations of a
retained professional and should not be construed as legal or other
professional advice. In addition, I do not endorse any actions addressed
herein, unless they are produced or created by me. I recommend
consultation with me or other competent legal counsel and/or other
professional advisors before applying this material to any particular