Litigation strategies do not always require that litigation be pending. This should occur pre-suit during review of a potential resolution of a problem. Litigation can get out of hand and cause a lot of problems for both parties. Filing suit should be the last resort, but quite frequently it is required because of the behavior of the other side or the goals that are defined. It is first important to define the goals keeping in mind that suit should be the last resort. Of course, sometimes there is a race to the courthouse and suit is necessary because the last resort has already occurred. Goals should be defined and a strategy can be created to accomplish those goals. Goals should include realistic potential results with the understanding that scare tactics do not generally work. Many clients come in and believe the can outspend the other side or try to scare the other side into taking action. This is very unpredictable and quite frequently does not work. In fact, our firm will not take on a case without the understanding that we will see it completely through. We will not send demand letters for clients that are purely veiled threats because our reputation is important. If we get involved with notifying the opposing side or other parties, it is with the understanding and complete cooperation of the client that we will see this through to the end. This quite often means that there are goals that are set in place which are attainable.
Clients must consider that principle is very expensive and that sometimes principle is necessary because of creating a target on oneself or a business by folding in too quickly. Sometimes it is necessary not to resolve a case and take it all the way through litigation, because a message has to be sent to future litigants that the business is not an easy target and will hold other businesses to the deals that have been made and to the requirements under their existing relationships. The issue comes up as how should a case be settled and when should it be settled. If the goals have been properly defined, then the predictive results can be created. It is a matter of when the other side falls into those goals that the situation should be resolved and settled. Sometimes settlement means an actual trial all the way through appeals for complete resolution. It is a matter of defining the goals with what results can be realistically obtained and the cost to get those results. The intangible factors must be considered as well. This includes situations where it is necessary to make it clear that your business expects to have employees, contractors and vendors comply with their obligations and that you will not become an easy target. Keep in mind when designing these goals there is really no such thing as an unsolvable problem. [Read here for more information].
Stephen Fuller is the managing partner of Fuller Sloan LLC and has practiced in business litigation and consulting for 37 years and has over 25 years representation of the founder of one of the largest sit-down casual restaurants in America. For more information, send Mr. Fuller an email.