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What to do When Litigation Happens: Part II

Doug Weems reminds employers although litigation risks can be minimized, litigation is a fact of life in the United States.

  1. Evaluate joint defense issues.  If there is more than one defendant, evaluate whether the parties can be represented by the same counsel.  The primary advantages are the cost savings and the increased ability to coordinate defense activities.  A joint defense may not be possible if there are differing views on the facts or the strategy to be employed.
  2. Analyze the costs and benefits of litigation versus an early attempt at resolution.  Consider what plaintiffs are demanding or what they really want.  For example, is this a case which can be resolved with something like an apology and a gift certificate?  Even if you are insured against the risk, there are untold opportunity costs due to lost time dealing with lawyers, appearing for depositions, answering interrogatories and producing documents.  Litigation can impair your bank’s business, disrupt productivity and damage morale.  Early settlement may be the cheapest alternative but may not be feasible in some situations.
  3. Consider mediation, arbitration, or other methods of alternative dispute resolution.  For example, the United States District Court for the Western District of Missouri has an early assessment program where cases are assigned to a session with the program administrator, an outside mediator, or are not assigned to any early mediation effort.
  4. Met an early case strategy.  Is this a case which should be resolved as early as possible?  Is this a case which requires a certain amount of discovery before a dispositive motion is brought before the Court?  Is this a “bet the bank” case which should be defended at all costs?  These questions should be addressed with counsel so that an early strategy is established.
  5. Met expectations with counsel.  Do you want to receive copies of all documents filed with the Court and all communications with the adverse counsel or do you want to receive copies of only significant filings and communications?  When will the first case evaluation be provided and how often will it be updated?  What activities will be undertaken by the client and which activities will be undertaken by counsel?  For activities undertaken by counsel, what is the anticipated cost?  When will a case budget first be provided and how often will it be updated?