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For many people, filing a lawsuit is tantamount to hitting your opposing party with the nuclear option.  Nevertheless, if the potential for litigation does arise, in most cases, your options will be to either litigate, settle, or walk away.   In most cases, trying to settle after a legal dispute has arose is challenging because the parties have already begun to draw their lines in the sand and fear the perception that they will be perceived as “weak” if they cave in to the other side.  On the other hand, to take the case from the initial complaint up to, but not including trial with minimal work can easily exceed fifty thousand dollars with no guarantees of success.  We have seen many clients who, because they were unprepared for this reality, ultimately walk away and do nothing thereby suffer huge losses.   In order to maximize your chance in the event of litigation, here are some tips  that will help your lawyer better  in the event you find yourself facing the possibility of litigation.

  1. Make sure you have solid written contracts specifically designed to protect your interests.We often see contracts that look like they were written on a napkin and are so simplistic that they don’t really provide much assistance at all in the event it needs to be enforced in court.  A good contract should be very clear and detailed on the rights and responsibilities of the parties and should, as best as possible, specify what will happen in the event any of the “what ifs” should occur in your transaction.  If there are any issues in your transaction that are important to you, it should be addressed early on in the negotiations when people tend to be more open to discussion, and then confirmed in the written contract.   Experience demonstrates that people are much less open to discussion once an event occurs that actually affect their legal rights.  In addition, every contract should have an attorney’s fees provision that states the prevailing party in a lawsuit shall recover their attorney’s fees.  Otherwise, you’ll likely have to pay your own attorney’s fees even if you end up winning.
  1. Document Important Events that Could Affect Your Rights. In a lawsuit, it is not about who is right or wrong, but what you can prove.  The best proof is often in the form of documentary or other visual evidence.   All of us have witnessed in today’s Youtube society the impact that visual evidence can impact a person’s opinion.  Therefore, it is important in your business or investment dealings to create evidence of events that may affect your legal rights (i.e. a paper trail).  For example, if an opposing party takes action contrary to the agreement, send out a written confirmation to document the breach.   If the issue is defect or damage to property, take pictures or videos of the defect and damage and also include the date and time.   Of course, circumstances may warrant additional action in addition to mere documenting the event, and when in doubt, consult with your attorney.  Keep in mind that when that time comes for you to consult with litigation counsel, the attorney will be less concerned with whether you were wrong or right, but what tangible evidence do you have to prove your case.   Therefore proper documentation will enhance your attorney’s ability to advocate on your behalf.
  1. Understand and Know Who You are Dealing with. Sometimes a little investigation into your opposing party can reveal helpful information about what you might be facing in the event a legal dispute arises.   For example, have they ever been a party in a lawsuit?  All federal court cases are available online using the Pacer system and many state courts also provide online capability to search by name.  Does the party have insurance or assets from which you can recover for any future judgment?    Is it advisable to secure personal identifying information such as a driver’s license or social security number in the event you have to try and track them down in the future?   Taking the time to get more information about who you are dealing with can be very helpful to your attorney in the event you need to enforce your rights in court.
  1. Get Legal Counsel Whenever You are In Doubt About Your Rights. Many lawsuits could have been avoided had the client decided to call an attorney for advice the moment an issue arose rather than allow the situation to get worse and now face the expenses of litigation not to mention possible loss of investment.  Is it better to spend half an hour speaking with your attorney now or would you rather spend tens of thousands of dollars later in court facing the unpredictability of litigation?

Let’s face it, only lawyers like being in a lawsuit and most people who end up in litigation did not expect that they would end up in court.  Nevertheless, sophisticated individuals and businesses recognize that litigation is always a possibility and, therefore, take the necessary precautions to preserve their rights.   As they say, negotiate like adversaries, but act like friends and the more steps you can take to maximize your success in the event of a lawsuit could actually have the effect of minimizing the actual chances that you would actually need to resort to litigation to resolve your dispute.