United States: Litigating Strategically

Most litigators can draft a workmanlike complaint, answer a set of interrogatories, take or defend a deposition, and even try a case to a judge or jury. What differentiates the best litigators from journeymen is their focus on litigation strategy, instead of concentrating solely on tactics. That is, the ability to draft a good complaint is ultimately less important than the ability to provide your client with a realistic assessment of whether to file a lawsuit at all.

If a lawsuit is to be filed, the strategically oriented litigator considers at the outset what sort of a lawsuit ought to be filed, which defendants are worth joining (even though their presence may mean additional opposing counsel), what forum ought to prove most favorable, which causes of action ought to be brought, and which ones are better left out, because of the complexity and additional discovery they may bring with them.

When your client has been served with a complaint, instead of routinely asking for that initial extension of time to answer, the strategic litigator needs to consider a whole host of longer range considerations: would a quickly filed responsive pleading or motion shift the momentum in your client’s favor? Should you contest jurisdiction or venue? Do you want to assert counterclaims, or limit the scope of the lawsuit? Are there new parties who ought to be joined, and should you consider removal to federal court? And should you list every conceivable affirmative defense, or limit yourself in the interest of limiting discovery down the road?

When litigating strategically, the question which is always before you is this: what is the end result sought by you and your client, and how do you propose to get there? If your goal is to resolve the litigation ultimately by way of settlement, your initial tactical choices ought to be different than if you expect to fight to the bitter end. If your client’s goal is to minimize the cost of litigation, you ought to look differently at your plan of motion practice and discovery than if cost is no object. But, once you start down a particular road in litigation--filing every motion that can be filed, taking every deposition that can be taken--it is often difficult to change course. Once you make the early decision to seek preliminary injunctive relief, for example, you can’t withdraw that motion without consequences for the remainder of the litigation. Is it worth fighting a motion for a Temporary Restraining Order, or are you and your client better off negotiating a consent order? None of these questions can be answered in a vacuum: they all depend on where you want to go and how you plan to get there.

The number of key early decisions which need to be made by you and your client is formidable. What kinds of discovery will be useful and cost effective in this lawsuit, and how should they be sequenced? Should you initiate the discovery process early? Or wait until your opponent gets going? Should you follow the "usual" path of collecting documents at the outset of the case, or would an early deposition have greater impact?

At your client’s end, there are other considerations that must be part of your litigation strategy. My own half-serious definition of a witness in a business case is "someone who used to work for your client." Addressing with your client, early in the litigation, who may constitute key witnesses, and how to retain their cooperation during the course of the lawsuit can sometimes be decisive of the outcome. How can your client reconcile the demands of litigation with the needs of an operating business? When, if ever, should you depose your own witnesses; or, can you provoke your opponent into doing it for you?

The location and retention of expert witnesses is one of the earliest and most crucial tasks in strategically conducted litigation. How can you use your client to help you find the best expert witnesses? How do you keep your expert from becoming contaminated while promoting cooperation between client and expert? How do you protect your expert’s work product from discovery until you are read to produce it?

Who should the contact people be between you and your client during the course of litigation? Who needs to receive copies of correspondence, pleadings and briefs? How do those decisions interact with your assertion of attorney-client and attorney-work product privileges during the course of the litigation?

The press of deadlines and aggressive discovery often places litigators on a treadmill from which it can be difficult to dismount. Only by planning your strategy early in the course of litigation can the litigator assure that the litigation serves the purposes of the client, instead of watching the client deal unhappily with the consequences of being driven by the litigation process.