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Pleadings in lawsuits can be awful. They are often full of claims, accusations and allegations that are intended to embarrass individuals and companies in the most toxic, damaging way possible. Personal and business reputations that took decades to build are openly questioned and criticized, with the most lurid facts paraded before the readers.
Defendants often want to fire back with defenses and cross-claims that are no less colorful and vindictive. They can be entertaining to read as a third party but painful to live with as a litigant.
Clients may not realize that once a pleading is filed, it will become a permanent part of the court’s records that can be viewed by anyone. Courts do not readily agree to seal records, so there may be no confidentiality at all once the accusations start flying.
The shame is that this unseemly spectacle is completely avoidable. Experienced attorneys can help their client avoid getting an “ugly tattoo” by:
Explaining the process in detail to the client:
- What can be filed, consistent with ethical and professional guidelines
- What they can expect in return
- How the discovery process works: intrusive, costly and potentially embarrassing
- How the trial process works: public, time-consuming and uncertain
- How negative publicity must be anticipated
- What the alternatives are to filing pleadings:
- Early exchanges of information
- A negotiated settlement
- Confidentiality agreements once a settlement is reached
Engaging in a dialogue with opposing counsel early, and with as much civility as possible, to:
- Avoid creating the impression that the opposing party is being ignored or that filing volatile pleadings is the only remaining option.
- Frankly discuss potential strengths and weaknesses in a dispute, recognizing the potential problems for both sides; everyone can lose if things get ugly. Yes, the first to file might score a few blows, but doing so can force the other party to mount a strong defense or counterattack that will add costs and delays that might not be in the client’s best interest.
- Discuss whether informal discovery could help narrow the issues and facilitate resolution.
- Determine whether the parties are willing to participate in a confidential mediation process.
Mediations that take place before pleadings are filed can provide more options for settlement:
- Insults have not been hurled publicly.
- The parties are not backed into corners.
- The discomfort and expense of formal discovery can be avoided.
- With the assistance of the mediator, everyone has a chance to put the dispute into perspective before “extreme advocacy” takes hold.
When emotions are running high and litigation appears imminent, early mediation may offer the best opportunity to resolve the dispute before positions harden and options narrow.
Bill VanDeWeghe is an arbitrator and mediator at JAMS who handles complex business/commercial, employment, professional liability, and trust and estate disputes. A former litigator, investment banker, CEO and board member, he draws on decades of legal and business leadership to help parties resolve challenging matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
