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Navigating Liability Risks and the Litigation Process with and for Your Client

By Eric T. Boron, Esq.

The Value of Perspective

Perspectives of a Trial Lawyer can be the basis for valuable advice and counsel to your client, whether before, during, or after litigation.

Before litigation, an attorney with litigation experience can provide his or her client with a realistic perspective on the value of and need for risk management protocols, and of course sufficient liability insurance coverage protecting the client in event of a suit.  At the outset of litigation, an experienced litigator can give the client a realistic idea as to how the litigation is likely to unfold, and can discuss with the client various methods available to bring the litigation to an acceptable pre-trial resolution.  An attorney with trial experience charts for the client a sensible and effective roadmap for litigating the case at hand.  During litigation, the client can get valuable input from an experienced litigator as to chances for success in the litigation, and, can be counseled as to the too-often-underestimated benefit that the certainty of result provides through a negotiated pre-trial settlement, not to mention the accompanying capping of on-going litigation overhead expense.  Finally, during and after the litigation, the attorney can help the client reassess the adequacy of both the client’s liability insurance and the client’s internal risk management systems and procedures.

Litigation Truths

Sadly for the trial lawyer, very few cases these days actually go to verdict.  98% or more of litigated civil cases settle before verdict.  Why?  There are a number of reasons.

First, it is absolutely true that juries are unpredictable.  Why put the result of the dispute into the hands of six strangers?  The client has no say in the verdict of a jury.  The client will have some say in a negotiated settlement.

Second, sometimes the question of what will judge do further adds to the unpredictability of the result.    Your author has had civil cases re-assigned to a different judge for trial on the very morning of the trial.  Thus, you may have to try your case before a judge who is new to the case and having to make many evidentiary and other rulings literally on the fly as the trial progresses.     

Next, most litigators have a good sense of the value of a case before it goes to trial.  However, the overhead costs of litigation can be a surprise to an inexperienced client, and even to an experienced litigator.  You can’t control how the other side litigates the case.  Your opponent may run up the costs of the case far beyond what you and your client had hoped.  If the case is one in which it is necessary to engage expert witnesses to testify at trial, there’s often very considerable pre-trial expenses to be paid out to such experts without any guarantee of a return on what is spent.  The bottom line is when the value of the case is exceeded by the cost of taking it to verdict, there’s good reason to consider settling.   

Experienced Litigators Recognize and Utilize Litigation Pivot Points

An old litigation joke goes like this.  Q.  What do lawyers call a case that has gone to verdict?  A.  A mistake.

Pivot points are those times during the course of litigation where the parties learn something important about where they stand in the case, or face difficult issues without being able to confidently project how those issues will shake out.  At pivot points, an attorney and his or her client can and should take the opportunity to step back and honestly assess the litigation, its purpose, its overhead expense, and its potential for being resolved agreeably short of trial.  In cases tried to verdict, only one side can win.  At least one party to the case will be extremely disappointed with, and possibly, utterly devasted financially, or emotionally, or both by the verdict. Granted, there are times civil litigation simply must proceed to a trial verdict.  I am not suggesting all litigated matters should settle.  But the high percentage of cases settling in this day and age reflects the reality that ultimately there is considerable value, if the case is kept in proper perspective, in gaining the certainty of result, capping of overhead expense, and active participation in resolving the dispute that comes with a negotiated settlement.

In most civil litigation, pivot points to consider and discuss with the client, opposing counsel, and the even the court include the following:

  • Pleadings received
  • Bill of Particulars and paper discovery
  • Medical records and reports
  • EBT’s
  • PTC’s
  • Jury selection
  • Trial

Why wait until the eve of trial to take the opportunity to resolve the case?  It is this author’s belief that at each pivot point in the case, opportunities for resolving the case short of trial should be examined and discussed with your client.  This is because, to a great extent, the scenery never changes as the litigation steamrolls on.  The facts of the case are what they are.  Since the facts never change, the information you receive and consider during the discovery phase, including via the pleadings, bills of particulars, other paper discovery, medical records in a personal injury action, and deposition testimony generally provides virtually all the information you’ll ever get in the case, unless it is a case that will likely turn on the expert opinions or your side’s expert and the other side’s expert, or on unusual evidentiary issues.  As such, because you learn as the discovery phase of civil litigation progresses all that you will ever know, and since it is the same for the other side as well, why wait in many cases to litigate the case to verdict?

Over the past few decades, avenues for alternative dispute resolution (“ADR”) have been more widely developed and utilized by litigators and the courts to resolve civil cases short of trying cases to verdict.

ADR – Help by Third Parties is Available

With ADR, there are meditative processes to utilize in trying to settle a case, and there are adjudicative processes other than trials available as well.  While recapping in detail each process is beyond the scope of this article, an attorney may discuss and consider with his/her client trying one or more of the following pre-trial ADR processes:

Meditative Processes

  • Facilitative Mediation
  • Evaluative Mediation
  • Mini-Trial
  • Non-Binding Arbitration
  • Neutral Expert Fact-Finding
     

Adjudicative Processes

  • Arbitration
  • Court Appointed Services and ADR Options
     

Put Valuable Perspective to Work for Your Client’s Benefit

Corporate attorneys reading this article would be wise to offer to their clients the perspective a trial lawyer may bring to pre-trial issues.  Advice about risk management issues and liability insurance coverage is sharpened by the experience of litigating something that went wrong, or wasn’t covered by insurance in the way originally envisioned.  An important takeaway for civil litigators from this article is the value their perspective provides at all stages of litigation.  It is important to help your client develop realistic expectations early on about the case to be litigated.  Your perspective can be invaluable in counseling your client as to the ultimate question of whether this particular case should be tried to verdict, or, resolved in some other fashion.

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