Look for the most efficient avenue of resolution.
The first thing for a business and its lawyer to understand is that litigation should be about resolving disputes efficiently. What solution makes the most business sense? How can the parties end up better off or at least not worse off? That may mean litigating in court, in particular when there are unsettled issues of law and fact that are important to both sides’ economic interest and you need a final resolution. It may mean dispassionate negotiation with the help of clear-headed lawyers who can take emotions out of the equation and can look for common ground. It may mean mediation, where an objective third-party can give the parties to a dispute a balanced objective view of their differences and allow a rational mutually agreeable resolution based on guidance about the pros and cons of each side’s position. It could mean arbitration, where decision makers with practical experience in your business can adjudicate a dispute relatively efficiently and with some sensitivity to the particular business issues at stake. How do we know the best path?
Understand the Facts.
Litigation is about facts. It’s also about law, but outcomes are almost always determined by the facts. What happened, when, how, and why? In order to decide the best avenue for resolution, you need to understand the problem. All of it. From all sides. Objectively. For a lawyer, the first step is to understand as quickly as possible all of the facts. You need to speak with your client and the people with information to collect the facts. Look at relevant documents. In this day and age of instantaneous communication, emails, ims, tweets, facebook posts, all may have relevant information about your issues. They need to be preserved and reviewed and put into context to understand what happened. In running your business (or your personal life for that matter), it is important to remember that all of those things that we write on our smartphone, emails, and social networking sites are preserved somewhere in the ether for posterity to look at. It is important to think before we commit things to writing, to understand how they may look after the fact, and to make sure they are accurate and not the result of being in a rush, being tired, being annoyed or angry, and the like. It’s always a good rule of thumb to pause before hitting “send” or “post” and think about how what you are saying would look if it were plastered on the front page of your local newspaper. Then decide whether to send it.
Plan Your Objective
Litigation is not a good venue for venting one’s anger or frustration. It is important to have a clear objective before embarking on it. Think, “What is the business objective I want to serve?”. Are you protecting a strategic interest? Are you trying to collect money you are due? Are you trying to achieve some modification of an ongoing business relationship because circumstances have changed? There are many valid business objectives that litigation can serve. Outlining them at the outset, makes it easier to plan the right course of action. It also avoids surprises. Generally folks don’t get much beyond “winning.” The more important question is what is winning? It doesn’t always mean unconditional surrender or razing the opposition and burning it to the ground. That ends up being very expensive and isn’t always what is best for the parties. If you and your lawyer both understand the business objectives, you will both be in a better position to achieve what you want. And to do it within a budget that makes sense for the objective.
Communicate Early and Often
In my experience, things work best when clients and their lawyers have clear and open lines of communication. When everyone is on the same page, things work better. Lawyers need to explain options and ranges of possible consequences very clearly. Clients will appreciate being part of the decision-making process and understanding what the pros and cons of their options are. Lawyers need to listen to and understand the objectives long and short-term. The lawyer’s objective needs to be the client’s objective. My job is to make your problem my problem and do my best to achieve the best obtainable result based on the circumstances. To do that, I need to understand the client’s goals and needs and provide options available to reach them. That requires constant communication, client and lawyer needs to listen carefully and speak clearly and openly. Those are the most successful partnerships.
It Doesn’t Have To Be Painful
Yes, the wheels of justice sometimes turn slowly. Yes, litigation is an unwanted distraction and expense. No, it doesn’t always have to be painful. Following these guidelines can take some of the unnecessary pain out of litigation. Keeping in mind carefully thought out goals, helps to make each step of the way purposeful and intentional. It is another step on the path to achieving a desired result that will remove an obstacle to your business. This makes the journey a little easier to make, knowing that there is a positive end in sight.