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WHAT DO YOU MEAN WE’VE BEEN SUED?! Sixth in a Series of Six Articles

If you have been following along carefully with the prior articles, you will notice that I keep putting off giving substantive attention to the defenses available to the lawsuit. Now that you have properly addressed the preliminary matters, it is time to turn your attention to the specific allegations in the complaint, which you should do in coordination with your defense counsel. But let me leave you, after these hectic first days of the suit, with some parting thoughts about preliminary matters.

Clients frequently begin the defense of a lawsuit without a lot of thought about where they would like to end up at the end of the day. Obviously, you would like to defeat the lawsuit, and, in a perfect world (in which we do not live), be compensated for all your attorney’s fees, aggravation, etc. by the plaintiff. It almost never works that way.

But after the emotion fades, a sober assessment needs to take place regarding exposure. What is the worst case? How probable is the worst case? How quickly could the matter be settled and for what dollar amount? What steps should be taken in the litigation that will better lead to the final objective (settlement or take it to trial)? And which steps that could be taken are a potential waste of time because they do not lead to the desired objective?

There are myriad considerations that go into answering all these questions. And your view, and the view of your defense counsel, will go through ups and downs during the course of developing the case. But there are a lot of things that can be done in connection with litigation that simply are not worth the time or the money. Judging which those might be is difficult if you have not decided what is the realistic “best” of a “bad situation” and what it is worth to you financially to achieve your desired outcome. Giving that guidance to your defense counsel increases your chances of getting closer to your desired objective with the amount of time, effort, and money expended being in reasonable proportion to the risk and your desired outcome.

Litigation can be a wild and unpredictable thing, particularly in a business context. However, you can, through preparation, good assistance to your legal counsel, and frank conversation, increase your chances of achieving the best possible outcome in a bad situation.