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Common Litigation Mistakes and How to Avoid Them

In this article, we’ll take a look at some common mistakes in litigation and what can be done to avoid them. This article is primarily for laypeople involved in litigation. Especially if you’re running a business, a thorough understanding of common litigation mistakes can help you nip potential issues in the bud, avoid problems down the line, and get the most out of your legal representation.

1. Not hiring an attorney, or doing legal analysis yourself.

People can easily get into trouble in legal matters when they try to do it themselves. The law is complicated. Anyone can read a statute or a legal document, but legal analysis is a complex and intricate task for which attorneys study and train for years just to develop basic professional competence. Beyond that, litigation strategy and tactics require years of experience to refine. Moreover, even if you’re readily able to handle some things yourself, that doesn’t mean every legal issue or task is appropriate for “DIY.” You may be able to prepare a contract, fight a traffic ticket, or even file articles of incorporation yourself—but if you’re making a high-stakes deal, being sued, or have been seriously wronged, good legal representation is likely to pay for itself many times over.

I’ll add that in my experience, the clients who experience the most problems are clients who develop extensive legal theories themselves, without the advice of counsel, and then either rely on those theories themselves, or want their attorney to rely on those theories. If you hire a lawyer and limit him to a layperson’s legal theories, you’re handcuffing your lawyer. Free him up and let him do the work. If you were running a football team, you wouldn’t hire Tom Brady and then limit him to only running the plays you draw up on your own.

2. Not communicating proactively and effectively with your attorney.

After selecting and hiring an attorney, you need to communicate with him. A client who is not on the same page as her attorney is likely to have a bad time. In particular, in order to provide the best possible representation and advice, your attorney needs to know the facts and evidence—all of it, including those parts that are damaging to your case. Practically every case has some unfavorable facts. The only way an attorney can help you overcome a bad fact is if your attorney knows what the bad fact is. Likewise, if you have particular goals, budgetary limits, concerns, or logistical issues, your attorney should know about those so that she can better assist you. This is a broad category, but the point is that if you’re involved in litigation and represented by counsel, you need to be up-front with your attorney about the facts, communicate as clearly as possible, provide clear instructions, and make the attorney aware of any special considerations you want to be addressed.

By the same token, the client needs to listen to the attorney’s advice, including reading (and taking the time to fully understand) correspondence and documents. You don’t have to follow your attorney’s advice (although you probably should, unless there’s a compelling reason). But if you don’t take the time to read and understand it, you’re wasting your money.

3. Making damaging statements pre-litigation.

“You’ve got no right to do that! I’ll see you in COURT!” Litigation arises out of conflict, and conflict naturally produces heated confrontations. However, you should try to avoid saying anything pre-litigation that could look damaging in court. Back in law school, a professor told us to imagine every email we send displayed on a projector in front of a judge and jury, before we send it. How’s it going to look? If you know you’re taking someone to court, there is no point making statements that could make you look bad. Keep in mind that so many of our day-to-day communications are now stored in a permanent written record. Texts, emails, and social media messages all can and will end up in front a jury. Whether it’s a demand, threat, admission, apology, random comment, or just something goofy, think carefully before you hit “send.”

4. Problems with documentation.

This too is a broad category. It includes both not keeping enough documentation, and retaining excessive and unnecessary documentation. Be careful about what you put in writing, but at the same time, make sure you document in writing things that need to be documented. Written records are of vital importance in litigation, since much legal argument in a case is based on written documentary evidence. An attorney can help you understand legal implications of recordkeeping and what needs to be documented. This kind of consulting can be valuable: in case a dispute ever ends up in litigation, you’ll be prepared with thorough and professional records. Keep copies of important legal documents such as contracts and notices, and do your due diligence.

This is important everywhere, but can be especially important in the employment context. Suppose a business is sued for employment discrimination. If the employer claims the employee did poor work and that was the reason he was fired, but the employer has no documentation of anyone having a problem with the employee’s work, what’s the jury likely to think? The same reasoning can and should apply to all kinds of cases. If there’s a fact that you know or suspect will become important in litigation, it’s important to document it in writing.

5. Taking it personally or being overly emotional.

It’s hard not to take litigation personally sometimes. Just ask any litigator if she thinks her job is stressful. However, it’s practically guaranteed that during litigation, the other side will say or do something you don’t like. This could be as simple as requesting an extension to respond to discovery but then not granting the same courtesy to your attorney. Or perhaps the opponent’s lawyer is trying to take depositions or demand documents that are intrusive, burdensome, and borderline harassing. There are avenues to deal with these issues in litigation. Abusive conduct is not permitted and can be met with sanctions (e.g., fines by the court, or more) where appropriate. However, becoming overly upset or angry won’t help anything. Litigation is a chess match more than it’s a cage fight. Cool and calculating usually wins the day. Keep this in mind as you read through the next few items. This is a common thread that runs through several frequent blunders.

6. Not viewing litigation in cost-benefit terms.

Many litigants fail to view litigation as they really should: a strictly financial cost-benefit analysis. Would you sue someone if you knew that you would win at trial, but the judgment would be less than you spend on the litigation? Maybe—but probably not. It’s just not worth it. Although most attorneys will be happy to file a case, take it to trial, or do anything else you instruct them to do, at some point all clients need to consider whether the benefits outweigh the costs. This is particularly important in defense cases. If you’re sued and you don’t believe you’ve done anything wrong, it’s natural to want to fight it. But if you can make the case go away by paying less than you would pay to try it, why not at least explore that option? How much is a sense of vindication really worth to you? The goal of civil litigation defense should always be to resolve the plaintiff’s claims as cheaply, affordably, and finally as possible.

Similarly, anyone considering suing should consider whether the defendant has assets that can be collected against. You do not want to spend time and money obtaining a judgment that ends up being worthless. It’s also important to have a realistic, serious discussion about the amount of damages, the likely value and/or outcome of the case, and the cost of litigation through trial and any anticipated post-judgment work.

7. Obsessing over the other side’s behavior.

It’s my experience that many people in litigation think far too much about, and read much too far into, the other side’s behavior. This is especially common among people who do not have extensive litigation experience--but is a trap even experienced attorneys sometimes fall into as well. It’s almost always best to focus on what you can control, which is your presentation of your own case and your arguments against whatever the other side is saying. If the other side presents information or evidence to the court that is false, your and your attorney’s time and effort are best spent on showing the court why it’s false and why you have the winning argument. Far too many pro se litigants immediately jump into attempting to prosecute the opposing attorney’s perceived ethics violations, where their efforts would be better directed toward winning their own case.

8. Doing shady things to try to gain an advantage.

As one quick example, I’ve seen law firms (especially in the eviction field) engage in “gutter service” where the process server lies and claims to have served the documents. Unfortunately, I’ve seen this done even by registered process servers, who are entitled to an evidentiary presumption that they completed service. In one case, the attorney the server worked for had previously been disciplined by the State Bar for attempting to mislead a court (and other misdeeds). There’s any number of unethical behaviors that may appear tempting at first glance. You may think you can gain some advantage by falsely claiming to have served documents, swiping documents from the opposing party, something worse like outright falsifying a document, or even something more innocuous like trying to evade a question at deposition or trial. DON’T DO THIS. It isn’t worth it. Your integrity and credibility are worth far more to your case than any minor advantage you might think you’re gaining.

9. Accidentally waiving privilege.

Communications between the attorney and client are privileged and do not have to be disclosed in discovery. However, there are some common issues around the boundaries of attorney-client privilege. First, simply cc’ing your attorney on an email does not necessarily make that email privileged. Second, some communications that you might expect to be privileged aren’t; for example, communications between the client and an expert witness are not privileged, even though that expert is on the client’s “side” and is retained by his attorney. Third, under some circumstances, privilege can be waived; for example, by talking with your attorney with other people present, or by failing to timely respond to a discovery request. This isn't an exhaustive list. Other misunderstandings are fairly common. If you have any questions, ask your attorney. If he’s worth his salt, he’ll be happy to give you a rundown. Don’t risk making any assumption as to what is or isn’t protected from disclosure.

10. Not presenting yourself as well as possible.

You could have the best attorney in the world and have her spend years preparing your case, but if your case hinges on credibility and you show up to court wearing ripped jeans and a marijuana leaf T-shirt, how much is your attorney’s work going to be worth? If you end up in a trial, the jury is going to be looking at you and evaluating you as a witness and as a human being. Present yourself as well as possible. This doesn’t mean you can’t win a case if you don’t have an expensive suit. In fact, an ostentatious or over-the-top display of wealth can be far more damaging at trial than the appearance of poverty. The point is simply that you need to look, talk, and act your very best during this important time when the finder of fact is judging you. Don’t put on airs or be inauthentic; be yourself, be respectful and civil at all times, look professional, be honest and straightforward, and generally try to be, and look like, someone the jury can believe.

We hope this article has been informative. If you have a legal matter and are looking for representation, please don’t hesitate to contact us today.

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