Lot has been said about managing litigations. Lawyers would ask: what is the big deal, we are managing this day in and out. Managers would say: This is simple, just entrust the case to a lawyer and sleep over it!. But for a corporate an ill-managed litigation can lose it a fortune and in a worst scenario, even its existance will be at stake. A company can be even wound up if a litigation involving a few thousands are not managed properly.
Many small companies entrust the handling of litigations either to finance department or to some other generalists. For those who do not know law, managing litigation is to entrust the matter to a lawyer and report the developments to the management. Thus litigations become too much reliant on the lawyers, and if the lawyers are not competent enough or they fail to understand the intricacies of business undertaken by the company, the matter goes for a toss. Hence it is important for a corporate to have a full fledged legal department, who can manage the litigations and legal affairs in a co herrent manner.
Core issues in litigation management:
1. Understanding the business logic
2. Understanding the legal risks involved in the business
3. Understanding the stand taken by the opponent
4. Understanding the lawyer who handles the matter
5. Understanding the court which hears the matter
6. Understanding the public perception about the matters involved in the litigation.
Many seasoned litgators would frown when I am saying about these 6 understandings, especially about the last understanding-public perception. But before any litigation goes to court, one should understand that any trial in common law countries is public trial and all matters involved in the matter would be laid open to the public. So if you dont want to make the issues public the thumb rule is : settle and close the matter before it reaches court.
Strategy:
It is imperetive that before one enters into a litigation, one has to formulate a proper strategy. Many a times, legal departments of corporates, just become a post office for forwarding the litigation file they receive from the internal departments to the lawyers and obtaining the details from the lawyers and reporting the same to concerned departments. Enthusistic law students who join legal departments come out after some years as senior clerks, and move on to other departments, all the while claiming that they have understood handling litigations. The maximum they have understood would be to manage litigation mis's being maintained in legal departments to inform the management about the status of pending litigations.
The base strategy for any litigation is that litigations should be seen as a war. Both in war and litigations, you have no option but to win. The strategisation should also be more or less similar to a war. Many serious litigators keep a copy of Lao Tse's "Art of War" in their library along with the law books.
The 6 understandings mentioned above are those which are also considered by a serious general going to war. He will have to understand his ground before he launches an attack. If he knows that he is on a losing front, a good general would only try to minimise the loss of his man power by making a strategic withdrawal. However, a strategist general would also keep in mind the boost in morale a victory can give to his men and the harassment such a withdrawal can make.
There are variety of books detailing the strategy to be adopted in litigations. Since my purpose is only to give a birds eye view, I am not dealing much into these strategies.
Some important tips:
1. Dont rely too much on either your individual judgement or a single lawyer's judgement while handling litigations. While in doubt, dont hesitate for a second opinion. God knows, perhaps this second opinion may save the day.
2. Always have the saddle of litigation in your hand. If necessary do discret checks or surprise visits to the courts to understand the manner in which the lawyer is handling the litigations.
3. Always understand that more than law, several other factors including the mood of the judge on the particular day of hearing may count in winning and losing of litigations. Sometimes, just some crank call from some telemarketer might turn the judges mood against a corporate which is other wise running good business, which would ultimately end up in the corporate losing a cake walk case. There have been even instances where judges have got confused between two companies by similarity in name and have passed strictures one company quoting faults of the other, which had personally peeved the judge.
4. More than others the litigator should understand that litigation is time consuming and long term strategies should be drawn rather than for short terms, unless business interest demands a short term strategy only.
5. Litigations is having more a nuisance value among opponents than any actual hit, more so when both the sides are corporates. So in such scenario, the advantage would go to the one who is able to inflict maximum injury to the other in short term, since there is a greater chance that the other side may come forward for a compromise after one or two such hits.
To conclude, a serious litigator would be one who keeps his eyes and ears open, understand his and his opponents, and his lawyer's and opponent's lawyer's and some times even the judges' weakness and strengths and seize the first opportunity to get maximum advantage.
Many small companies entrust the handling of litigations either to finance department or to some other generalists. For those who do not know law, managing litigation is to entrust the matter to a lawyer and report the developments to the management. Thus litigations become too much reliant on the lawyers, and if the lawyers are not competent enough or they fail to understand the intricacies of business undertaken by the company, the matter goes for a toss. Hence it is important for a corporate to have a full fledged legal department, who can manage the litigations and legal affairs in a co herrent manner.
Core issues in litigation management:
1. Understanding the business logic
2. Understanding the legal risks involved in the business
3. Understanding the stand taken by the opponent
4. Understanding the lawyer who handles the matter
5. Understanding the court which hears the matter
6. Understanding the public perception about the matters involved in the litigation.
Many seasoned litgators would frown when I am saying about these 6 understandings, especially about the last understanding-public perception. But before any litigation goes to court, one should understand that any trial in common law countries is public trial and all matters involved in the matter would be laid open to the public. So if you dont want to make the issues public the thumb rule is : settle and close the matter before it reaches court.
Strategy:
It is imperetive that before one enters into a litigation, one has to formulate a proper strategy. Many a times, legal departments of corporates, just become a post office for forwarding the litigation file they receive from the internal departments to the lawyers and obtaining the details from the lawyers and reporting the same to concerned departments. Enthusistic law students who join legal departments come out after some years as senior clerks, and move on to other departments, all the while claiming that they have understood handling litigations. The maximum they have understood would be to manage litigation mis's being maintained in legal departments to inform the management about the status of pending litigations.
The base strategy for any litigation is that litigations should be seen as a war. Both in war and litigations, you have no option but to win. The strategisation should also be more or less similar to a war. Many serious litigators keep a copy of Lao Tse's "Art of War" in their library along with the law books.
The 6 understandings mentioned above are those which are also considered by a serious general going to war. He will have to understand his ground before he launches an attack. If he knows that he is on a losing front, a good general would only try to minimise the loss of his man power by making a strategic withdrawal. However, a strategist general would also keep in mind the boost in morale a victory can give to his men and the harassment such a withdrawal can make.
There are variety of books detailing the strategy to be adopted in litigations. Since my purpose is only to give a birds eye view, I am not dealing much into these strategies.
Some important tips:
1. Dont rely too much on either your individual judgement or a single lawyer's judgement while handling litigations. While in doubt, dont hesitate for a second opinion. God knows, perhaps this second opinion may save the day.
2. Always have the saddle of litigation in your hand. If necessary do discret checks or surprise visits to the courts to understand the manner in which the lawyer is handling the litigations.
3. Always understand that more than law, several other factors including the mood of the judge on the particular day of hearing may count in winning and losing of litigations. Sometimes, just some crank call from some telemarketer might turn the judges mood against a corporate which is other wise running good business, which would ultimately end up in the corporate losing a cake walk case. There have been even instances where judges have got confused between two companies by similarity in name and have passed strictures one company quoting faults of the other, which had personally peeved the judge.
4. More than others the litigator should understand that litigation is time consuming and long term strategies should be drawn rather than for short terms, unless business interest demands a short term strategy only.
5. Litigations is having more a nuisance value among opponents than any actual hit, more so when both the sides are corporates. So in such scenario, the advantage would go to the one who is able to inflict maximum injury to the other in short term, since there is a greater chance that the other side may come forward for a compromise after one or two such hits.
To conclude, a serious litigator would be one who keeps his eyes and ears open, understand his and his opponents, and his lawyer's and opponent's lawyer's and some times even the judges' weakness and strengths and seize the first opportunity to get maximum advantage.
