ABCD’s of Litigation Prevention

No one, apart from litigation lawyers and patent trolls, likes litigation.  Or derives much happiness from it.  Then why do we offer ourselves to the public as litigation lawyers?  It is escape from litigation that our clients want, and these days we offer the escape only after costly proceedings and discovery.  What, then, if we started introducing ourselves as litigation prevention lawyers?  What would be the business plan?  Can we help our clients escape unnecessary law suits by acting before they are brought, instead of after?

A is for Advantage.

Advantage in the sense of the French origin of the word, avant or ‘in front.’  Staying in front of a problem is a tactical goal in business and politics.  Why do we rarely do this in legal disputes?

Lawyers’ brains are wired by the socializing influence of law schools to be forensic, i.e. engage a problem after it has become a problem.  In corporate law, however, practitioners use those same forensic skills to predict problems and inoculate their clients’ ventures by clauses in written agreements.  If litigators could learn from corporate counsel, there would be less litigation.  Instead, litigators brainstorm and find more ways to litigate.

The general model for responding to litigation is to find and pick fights.  Either through reference to outside counsel or self-help via a claims or legal department, court proceedings start with the exchange of allegations of fault and denials or counter-allegations.   From the perspective of the complainants, they have already gone through the initiation of process by hiring a litigation lawyer.  Their mindsets have already been cast, and the inevitable response is to cast the defence mind as a mirror image.  The two sides will then knock heads until they decide enough is enough, or until they exhaust all adjudicative and appeal routes.

But what if the defence were to spring into action first?  Except in rare instances, such as defence class proceedings that prevent a multiplicity of small actions, the idea of taking proactive steps before litigation seems too much like inviting trouble.  One invites trouble only if an invitation is communicated.  There is much that can be done to prevent trouble happening or growing, if only one instituted a policy of early detection.

B is for Behaviour.

Game theory is a form of applied psychology, and has more to do with real life than the analysis of pastimes.  Alternative Dispute Resolution (ADR), pioneered by Harvard professors Fisher and Ury, employs various methods to rescue disputes from litigation.  If we start with the premise that most people would prefer to avoid litigation, preventative strategies tap into a basic economic demand.  Leveraging that demand into a pre-litigation settlement or decision not to pursue a claim can be effort-intensive, but well worth it.

C is for Calm.

As satisfying as it may feel to prove an opponent wrong or to bully or humiliate a party for having the front to bring a claim, few claims arise from malice.  (Those started in malice involve a different dynamic altogether.  They are often more easily diffused than the action brought in good faith.)

If the lawyer’s instruction is to head off potential litigation, nothing can be achieved by taking a swing at the expected opponent.  An attempt to prove one has a clever lawyer will inevitably provoke the response of looking for a cleverer one to escalate the contest.  Sometimes, not letting the other side know you have been retained is the best strategy.  After all, it is the client’s problem, not yours.  Find a way for the client to resolve the potential dispute, and your work will have been done.

D is for Disruption.

  • Stopping a party from bringing a legitimate suit involves engaging in early settlement negotiations.
  • Stopping a party from bringing the law suit that should not be brought, involves early marshaling and presentation of evidence.

Both of these are forms of disruption.  The latter form of disruption is not frequently used, leaving parties deadlocked in civil actions whose merits are doubtful or whose claims are unreasonable.

Litigation lawyers and their clients usually view the facts as having crystallized, in whole or in part, by the time the plaintiff or complainant starts proceedings.  In many instances, this is not the case.  While the facts may have reached a critical level of fixedness, the evidence has not.  Evidence depends largely on the efforts made to collect it, and the perspectives of the cast of characters.  The facts, as juridical facts, are only what can be proven.  Unless investigators are aware of the theory of the claim and the defence during the course of the initial investigation, they will not identify and collect the information later required for the defence.

Most defence counsel will have the experience of responding to claims late in the time line.  A lot of actions are issued on the eve of a limitation period.  The late start of an action provides a complainant with a huge advantage.  The pursuer has had almost the entirety of a prescription period to plan the attack, almost at his or her leisure.  The defendant, however, has long forgotten any incident giving rise to the claim and has likely destroyed important documents that could help in mounting a defence.  Even if the claim is brought well before a looming prescription period, the pursuer usually advantage because the defence fails to launch an investigation and plan a response.  The defendant feels wronged by a process toward an unjust verdict.  The litigation is then drawn out, and the parties are forever playing catch-up and discovery games.

The reality is that where fault is at large, the evidence of fault and exoneration are both nearest the target of the allegations.  The defendant is in the tactically advantageous position – but this advantage is easily lost by inaction or complacency.  Litigation holds, asking to preserve paper and electronic evidence, are perceived as annoyances from claimants.  They should be employed more frequently as a fortification of the defendant’s interests.  If a defendant acts early to collect the evidence of its employees’ diligence, it becomes harder to establish negligence or bad faith.  When there is no early investigation and intervention, it becomes easy for the claimant to show, by pointing to the void, that the defendant was not diligent and did not care about the claimant’s interests.

 

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