When faced with a lawsuit—whether plaintiff or defendant—business
owners and officers must rely on their attorney to ensure that
everything possible is being done to provide aggressive, effective, and
successful representation. At the same time, the business owner is
usually concerned about the costs of litigation. Providing aggressive
representation while at the same time being sensitive to mounting fees and costs is one of the attorney’s most difficult challenges.
For
plaintiffs, legal fees must bare a reasonable relationship to the
amount in controversy, while carefully considering any risk that the
litigation will be unsuccessful. Similarly, a defendant
businessman—even when innocent of wrongdoing—usually does not want to
pay legal costs and fees that are over and above the cost of a
reasonable settlement. The following are ideas to discuss with your
attorney that may relate to this challenge:
Providing
aggressive representation while at the same time being sensitive to
mounting fees and costs is one of the attorney's most difficult
challenges.
The first thing that should be considered when faced with defense of a business related lawsuit is the applicability of liability insurance. If there is any question of coverage, the lawsuit should be tendered to the insurance company for a defense.
Whether
a plaintiff or defendant, your attorney should also make an initial
determination of the prospects for recovery of costs and attorney’s
fees, and conversely the risk of liability for the attorney’s fees of
the opposing party. These questions are determined through a review of
the contract between the parties, and/or applicable statutes. Liability for attorney’s fees is an extremely important consideration when considering litigation strategy.
Insist
that your attorney provide aggressive representation. Note, however,
that aggressive representation is not engaging in a costly paper war,
and is not filing meritless motions and pleadings that ultimately run
up costs with little or no benefit. Moreover, an aggressive defense is
not sending angry, emotionally charged, letters to opposing counsel,
with idle and baseless threats. Such letters rarely, if ever, have any
positive effect. Instead, they create more animosity and bad feeling
that has the effect of increasing legal fees without any corresponding benefit to the client.
Rather, an aggressive defense is one that uses all of the applicable legal rules, statutes, and case law, as
necessary, to ensure the absolute maximum recovery on a client’s claim, or alternatively to eliminate or
minimize the client’s liability for the claim of an opposing party.
The following strategies might be considered:
- File and serve the responsive pleading—usually the Answer—promptly.
Last minute filings and requests for extensions should generally be
avoided, primarily because it may give the impression of
disorganization, lack of preparedness, and weakness in your position.
- Serve a full range of carefully drafted “discovery” requests
early, usually with, or immediately following, service of defendant’s
Answer. Early discovery requests place opposing counsel on immediate notice of aggressive representation.
- If appropriate, deposit with the court (CCP 1025) any undisputed
amount owing before filing the responsive pleading. Also, consider an
early filing of a “998” offer. These strategies can work to shift
liability for costs and fees to the opposing party, thus putting
pressure on plaintiff to reevaluate the merits of the claim. Ask your
attorney what these strategies are and their possible application to
your case.
Do not be forced into an unfavorable settlement because of lack of preparation by your attorney.
- With your attorney, objectively evaluate (1) the merits of your
position, (2) your objectives with respect to the litigation, and (3)
the risks. Make sure that throughout the litigation process there
is effective and regular communication. If at any time you are
dissatisfied with your attorney’s performance seek a second opinion.
- Do not be forced into an unfavorable settlement because of lack of preparation by your attorney.
This happens far too often. Lack of preparation is caused by either (1)
the attorney’s lack of motivation, commitment, or competence, or (2)
the client’s insistence that the attorney cut corners to reduce costs.
In either case, lack of preparation results in a weak bargaining
position. Be fully prepared to go to trial if your reasonable demands
are not met. However, be realistic about the risks.
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