Hardball Litigation

By: Of Counsel Lyndon Laird

© 2020 Lyndon Laird · All rights reserved

I write about business, power, and strategy

The secret to hard-hitting litigation (and most things in life) is that only a few things are important. Only a few things really matter in a given case. Sometimes it’s just one thing.

All the “busy-ness,” activity, and productivity in the world may amount to nothing if the busy-ness relates to an unimportant issue. Worse, the busy-ness can be of negative value because it displaces and distracts from what is really important.

Only a few things really matter in a given case. Sometimes it’s just one thing.

What’s important and what’s not important? That’s for you to find out. It will be different in every case. But some good rules of thumb are:

1. The value of the case—is it worth your time and trouble?
2. Financial responsibility—is there insurance and can the other party respond in damages?
3. Venue and the judge—is the game fixed at the outset?
4. Getting the discovery you need–again, a crucial few documents, admissions, etc. will make all the difference.
5. Key depositions–get the crucial few admissions, concessions, etc.
6. The resources of the parties—sometimes litigation is a war of attrition.
7. The opponent’s situation, goals, and weaknesses—do they need money?
8. The opposing attorney’s situation, goals, and weaknesses—does he need money?
9. Making the client happy—their goals may be non-monetary.
10. Counterclaims if appropriate—the best defense is a good offense. The fear of sanctions or being ordered to pay the other side’s attorney fees is powerful.
11. Motions for summary judgment, motions to dismiss, and motions to strike experts—these can end the litigation in the blink of an eye.
12. Theme of the case–what memorable and persuasive word or few words encapsulate your case? Or an opposing witness? Argue them at every opportunity. Get opposing witnesses to support them in depositions.
13. The negotiations—This is crunch time. Everything else is funneled into the final negotiations. Better prepare for it like your case depends on it, because it does.

These amount to 99.99% of a case’s value. Everything else is either worthless or detracts from the value of a case.