How Businesses Can More Effectively Work with Outside Counsel
As Sarasota business litigation lawyers, we regularly work with successful businesses on legal issues that cannot be handled internally. In that endeavor, part of our role involves advising businesses on whether litigation will be successful based on the company’s overall goals and objectives. In this manner, outside counsel can play a very effective role in helping the company figure this out; however, in order to accomplish this task, there must be early and honest communication between the company and its counsel, as well as an early case assessment of the risks, pros, cons, and potential outcomes of litigation, as we discuss below.
Why Bring in Outside Counsel?
Litigation has become a common occurrence in running a modern-day business. It brings a certain level of risk and uncertainty, and, under some circumstances, can also interfere with business operations. It also does not occur in a vacuum; but rather, stems from an underlying business dispute or other issue that has not been resolved by other means.
Outside counsel is often brought in by a company in order to allow the company to properly consider the dispute, how to proceed, going forward, and how to ultimately achieve its goals in resolving a dispute. In other words, outside counsel can often help facilitate a business negotiation that cannot be accomplished through other means.
Effectively Communicating The Various Factors That Should Be Taken Into Account In Deciding Whether To Pursue Litigation
Effective communication between the company and outside counsel as early as possible is critical in order to ensure that this dispute is properly understood. In addition to the basic facts involved in the dispute, there are a number of issues that the company should discuss with outside counsel; issues such as: what does a “win” in litigation look like? Is it getting a claim filed, a motion granted, a particular jury decision, a settlement, etc.? In other words, what (specifically) will help the company advance its interests? Some of the factors to consider in figuring this out could include the following;
- The company’s relationship with this “adversary” and whether it is a customer, competitor, etc.;
- What the optimal resolution of the dispute is–whether that’s protracted litigation, a quick settlement, etc.;
- How important the dispute is with regard to the rest of the company’s operations;
- How aggressive the company wants to be;
- How litigation might affect the company’s employees; and
- Whether there are any means left other than litigation to resolve the dispute.
Open communication between outside counsel and the company also helps ensure that everyone is on the same page in terms of expectations and minimizing surprises. There are a number of additional issues that should be considered, such as:
- Does everyone understand the litigation process and whether and to what extent it could be disruptive to the business?
- Does the company understand that it can be difficult to have a claim dismissed?
- Does the company understand that they could be open to discovery, which can be very broad?
- Does the company understand that litigation is public; can go on for years; and can be expensive? Related issues–such as experts and evidence–should also be considered.
Coming Up with The Appropriate Case Assessment
Early case assessment with outside counsel is also absolutely necessary in figuring out how to proceed. This includes the company being made aware of its chance of success by taking a particular route. To this extent, some of the issues that should be considered include:
- What are the themes that the company wants to guide its litigation?
- Where should litigation be filed, what judge are you likely to be assigned, and how does that factor into the overall strategy?
- What are the key witnesses with respect to litigation?
- What documents are key to the dispute? This includes any relevant communications, including internal communications;
- What are the key legal and factual issues involved?
- What facts work for and against the company’s position?
- Are there issues that will require experts and if so, who are they and how much will they cost?
- What is the likely outcome of the litigation?
- Are there any other options left to resolve the dispute, short of litigation?
This enables outside counsel to provide the company with a good analysis of the benefits and potential risks of decision options.
Contact Our Florida Business Litigation Attorneys
If you have any questions about business litigation, contact our business litigation attorneys at Moran, Sanchy & Associates today to find out how we can help protect your interests and ensure that litigation is only pursued if absolutely necessary.