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How to Win a Lawsuit

Wed, Jul 14th, 2010


By Jeffrey H. Bunn

I practice exclusively in the realm of business litigation, which covers a broad spectrum of substantive law. Like most business litigators, my clients are just as likely to be plaintiffs initiating a lawsuit, as they are to be defendants, defending a lawsuit. As a result, it is difficult to be precise answering the question: How to win a lawsuit? That being said, there are a few tried and true pointers that I am happy to share with my TMC colleagues:

1. Identify the ultimate goal(s) that you hope to achieve in prosecuting or defending your case, before talking to an attorney. It's your business that is at stake, and even the most experienced litigator will expect you to provide some insight into your business priorities, so that those priorities can be taken into account in planning litigation strategy.

2. Do your homework. Draw upon all available resources (family, friends, TMC network members) to create a shortlist of qualified litigators who have a proven track record. Once you engage an attorney, you will necessarily rely upon his or her advice in matters about which you have no prior personal experience, but until that engagement is finalized, you are in control of the decision-making process. Engaging an attorney is really just another business decision, and you should handle it in the same thoughtful manner that you make other important business decisions.

3. Assuming you do not already know a business litigator with whom you are comfortable, make an effort to meet all the prospects on your shortlist, before making a decision. Sometimes, there will be a time urgency that might abbreviate this process, or require your shortlist candidates to juggle their schedules in order to accommodate your needs. Legitimate professional or personal conflicts aside, if a shortlist prospect is not willing to meet with you within the timeframe that you require, he or she is probably not someone you want to engage.

4. Finally, trust your instinct. As a businessman, your insight into a litigator's "hard skills" (a command of necessary trial and pre-trial skills) will come primarily from reputation or the second-hand observations of others you know. When it comes to judging a shortlist prospect's "soft skills", however (the ability to listen, assimilate information and communicate a point of view), your personal intuition is critical.

Winning a lawsuit depends upon many things, and any litigator with his or her salt will tell you that a favorable set of facts for a well-settled legal precedent are among the most important factors to insuring a successful outcome. If either the facts or the law are so clearly lopsided that they seem to compel an obvious outcome, an experienced litigator will tell you that very early in the process, so you can make your best business judgment and begin working toward an appropriate compromise. If the facts or the law do not clearly favor one party or the other, then you are likely in for a protracted legal battle, and the attorney that you engage to be your advocate should be someone you believe has the ability to be a "difference maker."

Bottom line: Know what you want to accomplish, do your homework and trust your instinct. That's a winning formula for operating your business, and it is also a rational approach for engaging a competent attorney who can help you win your lawsuit.