When your organization is hit with a suit, you face a double-headed monster: substantial liability risks and open-ended litigation costs, says attorney Stewart Weltman. But the monster can be tamed.
Society may behave according to the 10 Commandments. But if your organization gets sued, attorney Stewart M. Weltman, founder of the Weltman Law Firm in Chicago, says to add nine more. His nine commandments for dealing with suits, posted on law.com, are based on a column that originally appeared in Legal Times.
1. Think Like a Plaintiff’s Lawyer
Weltman suggests that to manage lawsuits, you have to start by thinking like a plaintiff’s lawyer. For example, work with small litigation teams that are “leveled,” that is, where the most experienced lawyers (rather than newly minted associates or paralegals) are involved in the day-to-day details.
2. Focus on “Going to Trial”
Even though your goal is to avoid a trial, you have to establish the trial mindset, because that is what the plaintiff’s lawyers are doing. They are focused and know what they have to do to win. If you are careless, they will slip past you and into court.
3. Consider Jury Instructions
In a similar vein, keep your mind on what the jury instructions will be. They will reveal important clues to help you build your case and also help predict the case your employee’s lawyer will present. Then, maybe you can set up some roadblocks, Weltman says.
4. Observe the Limited Chips Rule
Weltman cautions about briefing and arguing every possible motion. It’s a good education for your attorney’s associates, but it’s wasting “credibility chips” if the judge gets annoyed. Some motions just aren’t worth pursuing unless you are reasonably sure of a meaningful positive outcome.
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5. Don’t Fight Discovery
In general, it is best not to fight discovery, says Weltman. Instead, gain chips by bending over backwards to give the other side everything they request. While you’re at it, hire an experienced plaintiff’s lawyer to go over your documents. You’ll learn which ones might be most troubling, and you’ll be able to plan how to blunt their effect.
6. Hire a Plaintiff’s Attorney as Part of Your Team
Thinking along the same lines—and especially if you think your case is weak—consider hiring a plaintiff’s attorney as part of your defense team. You’ll gain insights about how the other side thinks, and that will help you prepare your case.
7. Make Contingency Work in Your Favor
One element to recognize, Weltman says, is that opposing attorneys generally work on a contingency basis, and that may make them eager to settle for a reasonable figure.
Then there’s the other side of the contingency coin. Maybe you can build some contingency into the arrangement with your attorney. For example, propose a blend of reduced hourly rates with negotiated bonuses, keyed to benchmarks based on how much your exposure is reduced at the end of litigation.
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8. Gauge the Strength of Your Case
Weltman recommends that you ask your outside attorneys to tell you, out loud, in 1 minute, their best case. (That’s also your best case.) Judges are not automatons—they will often react to the party that offers the most appealing presentation. The 1-minute summary will help you to determine how strong your case is.
9. With a Weak Case, Think Settlement
If you do conclude that your case is weak, says Weltman, think settlement sooner rather than later. The longer the process goes on, the more damaging evidence is on the record. The stronger the plaintiff’s case gets, the more valuable it is.
In the next Advisor we’ll talk about dealing with the people who start these cases in the first place—dishonest, difficult “dud” employees.
In the next Advisor we’ll talk about dealing with the people who start these cases in the first place—dishonest, difficult “dud” employees.
I disagee with the above statement as many honest and good employees are somtime left with no other alternative but to pursue legal action.