Controlling Your Destiny in a Litigious World

As a business owner or operator, you make decisions every day that affect the future of your company. You identify your goals, and then gather and analyze information to help you make an informed decision. In doing so, you strive to control your business destiny as much as possible.

If you've ever been involved in a lawsuit, however, you know that exerting control is often difficult. Many variables can affect the outcome, including the judge, the jury, your opponent's counsel, your opponent's ego and the glacial pace of the court system. While it is difficult to influence these external factors, you can control the actions that you take. Here are some suggestions:

1. Meet with your attorney early and often.
   Sounds pretty basic, right? You'd be surprised how often regular communication does not occur. Although your instinct may be to stand back and let your attorney "handle" the problem, you should resist that temptation. By meeting with your attorney (face to face if possible), reviewing the circumstances that led to the dispute and analyzing your goals, you will have taken the first step toward controlling your own destiny. The next step is to create an action plan that fits your business goals and is designed to achieve the outcome you desire. Reevaluate those goals at every step and be prepared to modify your plan when necessary.
   
   
2. Communicate directly with your opponent.
   If your goal is to achieve a "sooner, better" outcome, you may need to leave your ego at the door and try communicating directly with your opponent. Remember that the typical business dispute arises out of a relationship that was positive, at least in the beginning. By explaining to your lawyer what led to the initial breakdown in communications, he or she can help refocus your efforts or work with your opponent's lawyer to set new parameters for future discussions. Although nearly 98% of all business cases settle, many do so only after each side has invested inordinate amounts of time and incurred significant legal fees, so don't wait to open (or reopen) the lines of communication. The sooner a dialogue begins, the sooner you may be able to achieve resolution and return to the responsibilities of running your business.
   
   
3. Think about mediation.
   If you have never been involved in mediation, you should consider it as another proactive way to control your own destiny. Mediation is a confidential process by which a trained mediator, who has no connection to you or your opponent, and who has no stake in the outcome of your case, helps facilitate settlement negotiations. The mediator does not decide who wins or loses, but instead, helps you and your opponent find smart business solutions that resolve the conflict. Many of us at Much Shelist have extensive experience representing businesses in mediation, and some of us are trained mediators. Therefore, we are well positioned to suggest an appropriate mediator for your case, and to use mediators effectively to help maximize the chances for a positive outcome. Although you must devote significant time and effort to prepare adequately for the process, mediation is worth serious consideration given the hard work and money you would otherwise invest if you continued to litigate your case.
   
   
4. Look into neutral evaluation.
   Wouldn't decision-making be much easier with a crystal ball? Unfortunately, that option doesn't exist in the business world. There is a process, however, that can shed meaningful light on your potential outcome. Known as "neutral evaluation," it is a method by which you and your opponent choose someone (a retired judge or a respected lawyer) to review the claims, information and arguments of each side. The neutral party then provides a written evaluation of the strengths and weaknesses of each side's case that hopefully forms the basis for successful negotiations. Like mediation, neutral evaluation is confidential, and the evaluator does not decide who wins or loses.
   
   
5. Consider a judicial settlement conference.
   Often referred to as "mediation lite," a pre-trial settlement conference with a judge could prove beneficial to your dispute. With decision makers from both sides present, a judge (either yours or one who will not be deciding your case) spends an hour or two helping you resolve your lawsuit. Unlike mediation, however, these judges are not neutral. Because they are incentivized to eliminate as many cases from their dockets as possible, some judges may evaluate the merits of your case and actively push you and your opponent to settlement. Is a pre-trial conference right for you? At a minimum, ask your lawyer whether this approach makes sense under your particular circumstances.

These are just a few of the many options available that may allow you to exert some control over the outcome of your lawsuit. Although none of them is guaranteed, they may move you one step closer to controlling your own destiny instead of allowing the legal system or your opponent to dictate the future of your business.

Edward D. Shapiro focuses his practice on the efficient prevention, management and resolution of disputes for commercial entities, organizations and individuals. Serving as Co-Vice Chair of the firm's Litigation practice group, Ed advises and represents clients in state and federal court, before administrative agencies, and in mediation and arbitration in a full range of business matters. He can be reached at 312.521.2421 or eshapiro@muchshelist.com.

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The Litigation & Counseling Alert contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under professional rules, this alert may be regarded as advertising material.