Things I wished my clients asked themselves and other attorneys asked their clients before suing:
Individuals:
Have you been involved in a lawsuit before?
Do you know about lawsuits that friends or relatives have been involved in?
What are your most important goals in this case? Why are they important to you?
Most people have some fears or concerns about litigation, even people who have been through many lawsuits. What are some of your fears or concerns?
How much do you think about this case? Does it distract you from your work or family life?
How do you expect the litigation process to work in your case?
How long do you expect this case will take before it is over?
Of course, it would be great if the case could be resolved tomorrow. Obviously, it will take longer than that. Do you have any particular concerns about the length of time that this will take?
If this case goes on for, say, a year, do you think it would affect the way that people think about you?
If this case goes on for, say, a year, do you think it would affect your relationships with people you care about?
If this case goes on for, say, a year, would that prevent you from doing anything important to you?
Litigation can be stressful at times. How do you generally respond when you are in stressful situations?
It will be important for me to know if you are having a hard time. What is the best way for you to let me know this?
Some people find it helpful to see a counselor to help them deal with stress. Do you see a counselor now? Do you think it might be helpful to see a counselor to help deal with the stresses of this case?
In the litigation process, each side is entitled to get information from the other side through a process called “discovery.” So they might ask you to provide copies of documents, answer written questions, or participate in a deposition. In a deposition, the other lawyer asks you questions and a court reporter makes a record of exactly what you said. I would be there to answer any questions you might have and to object to any questions that are inappropriate. But you would have to answer the questions yourself. How do you think you would feel during a deposition in this case? Is there any information that you would not want to provide to the other side?
There are several different ways that this case could be resolved. Of course, one possibility is that it would go to trial and a judge or jury would make a decision. Although you see this a lot on tv, only a small proportion of cases actually go to trial. Most cases are resolved through negotiation between lawyers in consultation with their clients. Some parties use mediation, which is like negotiation except that there is a neutral mediator who helps both sides try to reach agreement. The mediator doesn’t have the power to make a decision, so if the parties don’t agree, they would use another process to resolve the case. Some parties use arbitration, which is like a court trial except the arbitrator is a private professional and the process is conducted privately. The arbitrator’s decision is binding like a court’s decision.
This is a very brief description of some of the major ways to resolve lawsuits. Do you have any questions about how they work? Which of these processes sound like they might be the best for you? Why? Which of these processes would you want to avoid? Why?
As we discussed, litigation can take a long time and be stressful. That’s one reason why people often settle their cases instead of going to trial. To avoid the delay and stress of trial, plaintiffs often settle for less than they think they would get at trial and defendants often pay more. I want to understand what’s important to you in this case and how much it’s worth to you.
For example, if we could settle this case in three months instead of a year, how much would that be worth to you? In other words, if you would [get / pay] $X in a year, how much would you be willing to [accept / pay] to resolve this in three months?
Even in the best cases, there always is some risk in going to trial. How important is it to you to avoid that risk? [For plaintiffs:] In other words, if you think you might get $X if you win at trial but might also get nothing, how much would you accept to avoid the risk of losing? [For defendants:] In other words, if you think that you might not have to pay anything if you win at trial but might have to pay $X if you lose, how much would you pay to avoid the risk of losing?
Some people really want to go to trial to present their case publicly and have the court make a decision, which they expect would be in their favor. Other people want to avoid the publicity of a trial and the risk of losing. How would you feel about going to trial?
If you don’t go to trial, do you think that you would regret it?
Businesses
In proceeding in litigation in this case, how much time and energy will be required of directors, executives, and other employees?
How might this case affect your company’s ability to focus on your goals and opportunities?
How might this case affect plans for future growth and innovation?
Litigation is stressful and can interfere with good decision-making about how to handle the litigation. Sometimes people are overly optimistic and sometimes litigation leads to groupthink or internal conflict. What, if any, problems like these would you anticipate?
How might this case affect your employees’ morale and identification with the company?
How do think that your company would be portrayed in the mainstream business and news media coverage of this case? How might your company be portrayed in social media?
How might this case affect your company’s brand – how the public perceives your company and your products and services?
How might this case affect your company’s reputation and relationship with stakeholders such as customers, suppliers, contractors, or lenders?
Might there be reputational benefits to litigation in this case?
What resources would be required to counteract any of the problems you just identified?
In assessing the costs and benefits of this case to your company, what dollar amounts would you estimate as the cost of any problems you identified?
[For plaintiffs:] How much would it be worth to your company to avoid the problems you just identified? In other words, if you might get $X from the litigation, how much would you accept to avoid these problems?
[For defendants:] In addition to payments for any liability in this case, how much more would it be worth to pay to avoid the problems you just identified?
