High-stakes litigation can devastate a company. Whether it’s a vulnerable start-up or an established business, sometimes a company’s survival depends on the outcome of a single lawsuit.
This is why the high-stakes cases require a different type of analysis of risk and reward which goes beyond day-to-day commercial litigation. These cases are complicated and usually involve multiple parties.
When a company’s very existence depends on victory, companies require trial lawyers who know how to run a case efficiently and present a winning argument. Here are five tips to help successfully navigate your company through high-stakes litigation.
- 1. Do Not Tell Lies
You should know that your credibility is the key to your entire case. If your credibility is attacked and there is no evidence to clear up the contradictions, your opponents will make the use of it.
Even the most brilliantly planned case will fall apart if the other side later discovers critical conflicting facts. Explaining inconsistencies and changing positions as a case proceeds destroys credibility and often irreparably damages your position. “Falsus in uno, falsus in omnibus” is the Latin maxim (false in one – false in everything).
To be effective, the lawyer must learn about all the relevant circumstances and facts, even those, that in the client’s view, are damaging to his case or painfully embarrassing. While achieving these goals is difficult, it is critical to the success of a case. In every case, the litigation lawyer may be forced by his adversary or by the judge to define the client’s position even before the court hearing takes place. Unless the lawyer knows about all aspects of the case, including the good and the bad, he cannot select the best available causes of action or develop a theory of the case that will position it most favourably.
2. Appeal to Common Sense
Non-lawyers often think that law is a world where common sense has no place. This is not true. A great advocate is not one who argues loudly and with noticeable great intellect. Rather, it is the one who says things which seem right and appeal to the human qualities of the judges, to make them see the ”rightness” of his side of the case. It is as if the advocate is not there. There is only the argument based on common sense. The most persuasive feature of any case is if it accords with common sense.
3. Be Involved And Play In a Team
Successful litigation requires a team effort. As a director, your engagement is especially critical in cases where you are called upon to testify. Because directors generally are not as deeply involved in the details of the underlying events as other employees, directors sometimes believe they do not require the same rigorous preparation. But in a complex case, it takes significant time to understand the precise legal and factual aspects of the case and be well prepared. The side that is best prepared possesses a crucial advantage.
There is no magic skill or technique that dictates success in the role of a litigation lawyer. Yet it cannot be disputed that certain lawyers are more successful in courts than the others. A successful lawyer will find and rely on law that the less successful lawyer never even considers. A successful litigation lawyer has the ability to see the case from the perspective of everybody involved, from the client, to the opponent, to the litigation team and to the judge. Through this process, the litigation lawyer must develop a story and find a theory of the case that he passionately believes. The lawyer must also test the story and theory with others to make sure that the story and theory are accepted as reasonable and fair.
4. Try To Be Liked by the Tribunal
People are more sympathetic to those who they like: it is human nature. With a sympathetic hearing, there is more opportunity to be persuasive.
Be nice. You don't want to come across as being vengeful or angry.
If you go to court, look presentable. Whether you are going to be a witness or just observing the proceedings – you should look good. It may not sway anybody to your favour because you are nicely dressed while in court, but dressing slovenly or disrespectfully can hurt your chances of winning.
5. Avoid cost-cutting
Litigation is expensive and high-stakes litigation especially so. In many industries, a complex litigation is a rare occurrence and directors at such organizations often ask their executives to apply the same approach to such litigation as they do in relation to the routine commercial disputes—to keep as tight a lid on costs as possible. But, in high-value litigation, life-or-death decisions should not be based on cost alone. Litigation frequently turns on the details. Foregoing the right expert or resigning from the internal investigations to safe money can result in a costly defeat. High-stakes litigation requires special approach and wise decisions on each stage of the proceedings.
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