Primer on Litigation

In actual practice, litigation may begin even before both sides of a dispute even realize that a lawsuit is contemplated. Litigation is the entire production of marshalling the facts, determining the applicable law, putting the matter at issue, maneuvering for advantage, and ultimately affixing liability on one side or the other.

If a dispute is not settled by agreement between the parties it would eventually be heard and decided by a judge or jury in a court. Litigation is one way that people and companies resolve disputes arising out of an infinite variety of factual disputes.

The term litigation is sometimes used to distinguish lawsuits from alternative dispute resolution methods such as arbitration in which a private arbitrator would make the decision, or mediation which is a type of structured meeting with the parties and an independent third party who works to help them fashion an agreement among themselves.

The attorneys in our firm have litigated patent disputes, construction defects, personal injury, contract disputes, and international trade disputes. We have experience in defending and prosecuting lawsuits in all the state courts in California and in Federal District Courts.

If you are a business owner, especially in today’s fast-paced and ever-changing economy, it is inevitable that your company will bring or defend a lawsuit or otherwise get involved in litigation – especially in California. Companies face litigious matters that may have a profound effect on their future. It may even be a case where you are betting the continued existence of your company on the outcome of the legal action.

It is instructive to remember that no matter how important the case is to your company, the efficiency of the legal representation will always be an issue. Regardless of the stakes, a business owner should not engage in litgation if the victory is to be merely symbolic. Big Case litigation is big time expensive; there is no way around that fact. However, there is much you can do to manage the fees so that a win is really a win – and not a loss masquerading as one.

The law firm you hire is the driving force behind both the success and the cost of the success. Once you have identified the likely candidates to handle your Big Case, use the following suggestions to find the right lawyer at the right cost. The first question you should ask yourself is whether you need an attorney with special expertise. Usually, you do not, but if the area of law is particularly arcane, such as patent, tax or bankruptcy law, then make sure your list of candidates is qualified to handle these specialized areas.

The next question you should ask is whether you need a trial lawyer or a litigator. This is a difficult question only because all non-lawyers and many lawyers use the two terms interchangeably. Since the possible terminus of any case is a trial, most people assume that all litigators try cases. In fact, the opposite is true. Most lawyers who are litigators are not trial lawyers.

A trial lawyer is a litigator who routinely goes to trial. Because the stakes are so high and the opportunities to try business cases so rare, trial lawyers are equally rare. Litigators and trial lawyers do the same thing, but they do it very differently. A litigator builds a case from the ground up, never exactly sure what the final structure (trial) will look like. A trial lawyer designs the structure (trial) first, and then builds their case.

In a sense, the trial lawyer looks at a case from the end game, while the litigator thinks of the case as linear, with a clear beginning and end. In the short run, a litigator is probably less expensive than a trial lawyer, and if you think it is probable your case will settle early, a litigator is the right choice. On the other hand, if the case has a chance to be tried, for your own security you should invest in a trial lawyer.

It is always good business to pay the least for the most, but it’s difficult to apply this to legal services. Hourly rates are not irrelevant, but nearly so. What is more important is the proficiency and efficiency of the lawyer and his or her honesty when recording billable time. Moreover, the law is like any other service – you get what you pay for. Litigation is expensive and even small cases may cost $20,000 per month and more when entering the late phases of depositions and trial.

At the first sign of the Big Case, get your proverbial ducks in a row. This one piece of advice will save you hundreds of legal hours. Accumulate the documents early. The most important reason to obtain your documents early is to understand your weaknesses early. An incidental benefit is that early accumulation of documents is far less expensive than doing it later, after memories fade, employees leave, databases are altered or destroyed, and files mangled.

Streamline reporting and requests – A big litigation means that a lot of people are involved both in-house and with outside counsel. It is strongly suggested that you funnel communication through one or two individuals inside and outside your organization. Too many cooks don’t ruin the broth, but it makes it darned expensive. Use technology but don’t become a slave to it – there is no such thing as the “paperless case.”

Litigation is expensive, diverting vital corporate resources and attention, and it can be a constant annoyance and distraction to your business. Retaining the right law firm and working closely with your attorney can help you to minimize the associated costs and improve your chances of a real victory.