Your goal in any lawsuit is not just to win, but to win efficiently. Wasted effort and excessive legal fees can turn a victory into a Pyrrhic victory -- which isn't a victory at all. Here are a few of my favorite strategies for winning efficiently.
1
A Stitch In Time Saves . . . All Kinds Of Money
Try to eliminate as many of your adversary's claims and defenses as early as you can. Lawyers often file complaints and answers that are patently improper. For example, they will file "boilerplate" answers that simply list the names of various affirmative defenses (e.g., waiver, estoppel, mitigation), without alleging any facts to support those defenses. By filing a demurrer to these defective pleadings at the outset of the case, you force your opponent to abandon his groundless claims, thereby simplifying trial, or to allege the facts on which they are based, thereby simplifying your discovery. Either way, you save money by applying the "stitch in time saves nine" principle.
2
Pick Your Battles: Discovery Discretion Is The Better Part Of Valor
"Discovery" is the process where the parties ask one another to answer questions and produce documents -- and it can be a huge pain in the you-know-what. Your adversary will almost always ask for a bunch of documents he's not really entitled to see, and will almost always waste time at depositions asking inane questions, two or three times. Now, you do have a right to ask the judge to halt such shenanigans. But the cost of filing and prosecuting a motion to do so may not be worth the relief you get. Sometimes it's more cost-effective to have your file clerk make copies of a stack of irrelevant documents than to have your lawyer explain to a judge why you should not have to do so. To win efficiently, you need to pick your battles.
3
Step Away From The Summary Judgment Motion
"Summary judgment" is a procedure where a party asks a judge to find, in essence, that no jury in its right mind could possibly rule in favor of the other party. The key is to show that the moving party is entitled to win based on certain UNDISPUTED facts. Sometimes the motion is indeed warranted. However, many, many lawyers spend far too much of their clients' money on unsuccessful summary judgment motions. Indeed, sometimes it would cost less actually to try the case than to try to convince the judge that no trial is necessary. Don't green-light a summary judgment motion unless you have exceptionally good reasons to do so, and the motion itself is short, simple and sweet. Okay, it doesn't have to be sweet, but short and simple, absolutely.
4
Look For An Achilles' Heel
A high-stakes lawsuit can, and often does, involve a morass of complicated legal and factual issues. I mean, it can be a real mess. Law libraries are filled with centuries' worth of courts making fine distinctions, and reversing and overruling the distinctions made by other courts. So, wherever possible, you should try to find an Achilles' Heel: one fact, one issue, one vulnerability that destroys your adversary's case. Then hammer away at it. If, for example, his claims are barred by the statute of limitations, then focus on proving that fact, because it renders all the other issues in the case inconsequential.
5
Think "SWAT Team," Not "Third Infantry"
Ask your economist friend to explain "diseconomies of scale" to you some time. (Or just Google it, because really, they don't call it the dismal science for nothing.) Simply stated: there IS such a thing as over-staffing a case. Division of labor is well and good, but duplication of effort is not. Even worse: if you get too many people working on a case, and the right hand doesn't know what the left is doing, you may find out too late that someone accidentally helped prove your adversary's case. Oops. Your case should be staffed based on the needs of your case, not the needs of your lawyers to keep their staff busy.
Comments - add comment