Litigation: How to be Better Prepared

Under the American legal system, there is no realm of human activity that fails to spawn litigation. The financial cost of a potential judgment is easily recognized. Less understood is the cost of time, energy, and resources (financial and human) of the litigation process itself. Even the defendant who avoids judgment by “winning” his case will still have expended resources that the law generally affords no avenue to recover.

The primary protection against both a potential judgment and the cost of litigation is insurance. Every individual, organization, and enterprise should obtain insurance coverage adequate to encompass both the scope of their activities and the potential dollar amount of liabilities that might arise from those activities. Be attentive to your policy terms and ask questions of your insurance agent. Ultimately, it is the responsibility of you as the insured, not your insurer, to choose the correct coverage.

Even with insurance, however, other preventative steps should be taken. Being attentive to avoid and remedy liability risks in advance is an obvious measure. When potential liability incidents do occur, however, other steps will aid your defense counsel to protect your interests.

First, be alert to incidents that may result in legal claims against you or your enterprise. If these occur, do not wait for a claim to be filed. Notify your insurer and your attorney immediately.

Second, retaining complete information about any incident posing the potential for litigation is critical. This is true even for information that may impact your defense in a negative manner. There are legal penalties for destruction of evidence, even in civil cases. More importantly, your defense attorney needs to know as many facts about the incident as possible and as soon as possible, in order to best prepare your defense. Relevant records kept in the general course of business, together with any special reports of a particular incident, should be kept and provided to defense counsel as soon as possible. The same is true for any video, photographic, or audio records.

Any participants in an incident, together with non-participating witnesses, should be identified whenever possible. Documentation of their observations is best obtained early, given the frailties of human memory. This should be done even before any actual claim is filed against you. Again, these should be provided to defense counsel as quickly as possible.

Finally, recognize that your attorney will need continued communication and cooperation through the litigation process. The best defense is proactive, not reactive. The efforts of your attorney to develop a general strategy for your defense and to pursue specific tactics in support of that strategy are dependent upon your cooperation in promptly providing information and evidentiary materials. Moreover, the legal system imposes deadlines for certain activities required of parties to litigation. Prompt response to requests from your attorney for information is critical to meeting these deadlines. Lines of communication must be available and open at all times.

Litigation may prove unavoidable. It always entails unwelcome costs and burdens. These can be reduced, however, if you are prepared.

Douglas Curlew is an attorney in our Livonia office where he concentrates his practice on appellate law, premises liability, and insurance law. He may be reached at (734) 261-2400 or dcurlew@cmda-law.com.