Care and Feeding of Litigation Counsel on a Budget
When your business has an annoying dispute, accept that disputes happen and resolve them like other kinds of business deals. Only spend what the asset is worth. Be objective and honest about the facts. Don't start without resources to finish. Set interim goals. Watch the bottom line.
When to Consult CounselThe first question is *when* to consult counsel and the simple answer is at the first sign of trouble. However, trouble is not always obvious. You must watch for slowing contract performance, souring business attitudes, or a change in the other party*s business climate that makes it burdensome to comply with your agreement.
If you sense trouble, consider whether you are ready for battle. Victory will be earned with evidence, not theories, and certainly not your recollections. Review all of the physical evidence under your control, including documents and digitized records, and then obtain employee statements. Consider too whether third parties possess evidence affecting either side*s case. This can extend to almost anyone, particularly with a complex business deal involving advisors, appraisers or investigators who may have witnessed contract events or have special expertise supporting expert opinions.
As you embark on this investigation, consider whether you need counsel to advise what evidence will truly be persuasive. Counsel may also warn when key evidence must be preserved, not for you, but for your adversary, since courts may penalize you for destroying evidence that hurts you. If you exchange communications with your adversary, the statements may become evidence in the litigation. Since every word will come under close scrutiny, less is more, and you may need counsel to maximize your position.
The other side of the question is the very real issue of cost. Successful business owners are bright, persuasive personalities who often seek to save a fee by handling preliminary matters themselves. There comes a point, however, where this contradicts common business sense: If the claim is not worth paying counsel, it may not be worth your time. Go back to basics and conduct a preliminary cost-benefit analysis. Then ask whether your desire to sue reflects pugnacity outweighing business sense.
Whom to Engage as CounselShould you decide you need counsel to make an initial evaluation, the second question is whom to engage. Most people ask a friend to refer *an attorney*. While the advice of trusted colleagues is vital, decide first what you need and ask your colleagues about attorneys meeting those needs. Then test each referral by interviewing prospective candidates on the following key areas.
Attorneys must be able to communicate effectively. A trusted advisor must identify issues and obtain necessary facts, allowing you to maintain control of the litigation. They must also be willing to keep you apprised of the progress of the case and give you advice you may not want to hear if circumstances change to your detriment.
Litigators are advocates and must have the power to persuade, both verbally and in writing. While persuasion also requires identifying issues and developing the strongest evidence, the advocate must recognize that judges and jurors are people and people do what they want; counsel will characterize the facts to make your position attractive and provide enough legal support to justify it. Ask prospective counsel for examples of briefs so you may evaluate their persuasive power.
Remember that persuasion follows skill. It is not the same as charisma: Never settle for a sparkling personality when you need a skilled advocate. Nor is persuasion aided by unbridled aggression: You will pay for needless combat if warrior counsel refuses to *do business* with opposing counsel. And the power to persuade may or may not be found in the *connected* lawyer: Substance matters.
A third requirement is counsel*s willingness to prepare a detailed litigation plan before filing the first papers in court and then help you track its progress. Every sailor knows that setting a course with even a slight error sends the ship miles from its destination. The right course for your case requires both a direction and progress points to let you know if you stay on course.
Consider also who will actually represent you. Successful attorneys and large firms engage junior attorneys and para-professional to perform much of the work. This is appropriate so long as lead counsel handles the tasks requiring their skill and experience, and effectively delegates the rest to those competent for each task. Make certain you meet all attorneys early in the process.
How to Monitor Counsel - First StagesOnce the case is commenced, the real work begins. Litigation moves through five major stages, and you should consider your role in each stage, and how you can tell if counsel is moving the case to a favorable resolution at a reasonable cost.
Pre-litigation evaluation, as discussed above, begins when counsel listens to your telling of the underlying incidents and suggests likely claims. Each claim has elements, and counsel must decide if there is evidence to prove them. You will be busy, since you know best where most of the evidence can be found.
Make sure to set clear goals, since victory in litigation may not mean an award of money damages: For example, you may need to enjoin a competitor from using stolen trade secrets to prevent financial injury. With your goals in mind, consider how much it will cost to obtain them: Parties to contract disputes generally pay their own fees, so you must deduct legal costs from your recovery. Do not start a case if you will pay more for the *asset* of your claim than it is worth or if you are not sure you can fund it.
Recognize too the tension that arises because counsel only works if you agree to pursue the litigation. There must be mutual benefit. Counsel must demonstrate how you will be benefitted and their reasoning must be clear and sensible. If you are not persuaded by the evidence, victory is unlikely.
In you decide to proceed, counsel drafts your complaint, which frames the dispute by stating whether the court has power to resolve these disputes, whether the parties are in the right court, and allegations to support each element of each claim. It need not be aggressive or persuasive and shorter is usually better.
Defendant may immediately ask the court to dismiss all or part of a claim. If not, defendant may make claims against you. You too may have motions to make, particularly if there is good reason to think that defendant will hide assets, leave the jurisdiction or destroy evidence, and you need to maintain the status quo while the claims are sorted out during motion practice.
If the action slows while the court resolves the motions, revisit with counsel your interim goals. This makes it easier to assess the status of the case when the court issues its order, and helps you anticipate when heavy billing will start again.
Once the claims have been tested, you must gather evidence that tends to prove or disprove the claims. What you seek from a non-party is investigation. What you seek from your adversary is discovery. There are detailed rules for discovery but the process generally includes written questions or demands for documents and other physical things. Another tool is the deposition, questioning witnesses on the record under oath: The testimony can be used at trial, so depositions usually reveal the strength of the claims.
Discovery can be lengthy and costly. It is always a risk for the party with less resources, since the adversary may weaken them by manufacturing discovery to increase costs. You may minimize costs by demanding that counsel get approval for large projects and justify their discovery strategy.
How to Monitor Counsel - Latter StagesOnce discovery is complete, the case is ready for trial, when each side presents its evidence and a judge or a jury decides what is the truth. If one or both sides believes there are no disputes to resolve at trial, they may ask the court to enter judgment without trial. Preparing papers on such a motion for *summary judgment* requires much of the same work needed to prepare for trial: Keep an eye on the bills to see if tasks are repeated needlessly.
At this stage, the ultimate outcome should be coming into focus, particularly if the court eliminates claims or defendant by summary judgement. Counsel should be able to estimate the cost to finish the case at trial, which can be balanced against the potential benefits. As the outcome and comparative costs become more apparent, most cases will be settled.
If you decide to go to trial, you must prepare like you are going to war and be ready to accept that cost. Counsel drops everything for your case, making a detailed plan of how each element must be proven, in what order witnesses will be called, and what documents or other evidence will be admitted through each witness. For every hour a witness is on the stand, counsel needs at least four or give hours to prepare them; for each hour with the witness before trial, counsel may need four or five hours to prepare. Counsel must anticipate all significant legal disputes and have legal memoranda to establish your position. Once the case has been choreographed, it must be executed around the judge*s changing schedule and unforeseeable events that plague every trial.
The cost of trial is great and many attorneys require fees in advance. Throughout this undertaking, you must remain in close contact with counsel, both to keep abreast of the preparation, and to assess whether fees are being minimized by delegation of duties and avoidance of repetition. Ask for weekly statements to track costs, which will include far more than fees, such as costs to prepare physical evidence and present it in the court room, expert witness fees, travel expenses and fees for non-party witnesses.