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Printed as "Avoid headaches down the line by taking early control of case,"
Houston Business Journal, May 6-12, 2005

Whether your company is being sued for $250 or $250 million, the first thing you will think about is whether you have any actual liability - if the case has any merit. The second thing you need to think about is how you are going to manage the litigation and control its costs and impact on your business. The key to managing litigation lies in your ability to take control of the case. After selecting the right lawyer to defend the lawsuit, one of the most efficient ways to control litigation is to direct your lawyer to conduct an "early case assessment" within the first 90 days.

The Benefits of Early Case Assessment

Early case assessment provides you with five distinct benefits:

• An assessment provides an independent view of the facts of your case.
• It provides a preliminary analysis of the legal merits of the case, claims, and likely defenses.
• An assessment provides an estimated cost for attorneys' fees and expenses to defend the case up to and through trial.
• The process provides an estimate of the anticipated time required by senior management, employees, and other parties to respond and assist in the litigation.
• An assessment within the first 90 days allows you to make an informed decision regarding the case and to decide whether to seek an early mediation or proceed to trial.

Get Your Lawyer Up To Speed, and Be Forthcoming

The facts surrounding a dispute generally constitute the major issue in a lawsuit. An assessment of these facts, both favorable and unfavorable, highlights your position in a case. Fortunately, by the time a commercial dispute reaches the point where someone files a lawsuit, the principals generally have spent considerable time analyzing the issues, reviewing the facts, discussing various points, and trying to settle the dispute. Spend time with your lawyer as soon as possible and explain what happened and how the lawsuit resulted. After this initial interview, provide your lawyer with copies of all contracts, correspondence, e-mail, and documents pertaining to the dispute. Allow him or her to read and analyze this information and to interview other individuals associated with the case. After this is accomplished, sit down with your lawyer, discuss the facts, and determine the critical fact issues in the case.

Know Where You Stand

After identifying the critical fact issues, have your lawyer conduct a preliminary legal analysis of the applicable contracts, claims, and likely legal defenses. Often the ultimate answer to your dispute lies within a contract or some other document. If this is a contract dispute, make certain that you can prove in court that you have fulfilled all conditions precedent and key elements of the contract. Ask your lawyer to identify and discuss the key legal issues in the case. The goal is to determine early, and not the week before trial, whether you have a problem with your case from a legal standpoint.

What's This Going to Cost You?

Once you have assessed your legal position, ask for a cost estimate to defend the case. Specifically, request a budget for the legal fees associated with court required discovery, substantive motions, and to prepare the case through trial. Make certain that your lawyer also provides you with an estimate of the additional costs associated with this type of case. These costs can include travel expenses, court reporters, copying charges, database costs, and potential expert fees. Additionally, find out whether you can recover these costs if you win the case or if you might have to pay these costs as well as your adversaries if your lose.

Also Understand the Non-financial Costs

In conjunction with the litigation budget, discuss with your lawyer how much time will be required by company officers and staff to defend the case. Specifically, ask how much employee or contractor time will be needed to answer discovery and when will the discovery occur. Identify individuals needed for depositions and ask for an estimate of the time required for the preparation and deposition. Additionally, analyze where depositions may be held and factor in the attendant travel time. Inquire about anticipated document productions and whether any site inspections may arise in the case. Finally, recognize the need to designate a point person for the litigation and realize that a large percentage of his time will be focused on the case at certain points. All too frequently, business people do not know about this aspect of a lawsuit and fail to take these hidden costs into account when evaluating a case.

Armed With Good Information, Now make Your Decision

Upon completion of an early case assessment with your lawyer, you should understand the critical facts in your case, the legal issues, an estimate of the defense costs, and the necessary company time to defend the case. With this information, you can then decide whether you want to mediate the case, explore other settlement options, or try the case. Keep in mind that you will not have all of the information and will not know everything about your opponent, his documents, or what his witnesses might say. However, you will know your case and the potential strength of your case. The alternative is to learn this information two years later and then realize you have to settle the case.