Engaging a lawyer to give advice or litigate a dispute in a commercial lending context involves choosing to incur costs. Bankers want to know what they should expect in return for the dollars expended. In litigation that has the potential to be complicated, they may refrain from early engagement with counsel because the costs can seem impossible to control. But the costs really aren’t that difficult to anticipate, and at least parts of the process can be influenced, if not controlled, to a significant degree by following the steps below.
1. Consult with Counsel Early and Often
Some of the most expensive cases are those that have been self-managed well beyond the stage at which some good and creative lawyering could have saved money in the long run. Call your lawyer at the first hint of trouble.
2. Compose A Comprehensive Memo to Counsel and Don’t Make Your Lawyer Learn What You Already Know
Before any lawyer will or can take a position on anything, particularly in a court filing, he or she must know the facts. Make it as easy as possible for them to get up to speed immediately. Don’t pay counsel to dig information out of the file.
3. Be Clear About the Assignment
In litigation, that may appear to be completely clear: Defend us, prosecute our claims and win. But with banking cases it can be more complicated. Share your specific concerns and talk with counsel about ways to address them. Work toward specific objectives with counsel.
4. Consider How You Will Collect If You Litigate
What is a “win” by your standards? The Bank has expertise and information you can use in determining your financial objective. Try to identify what is realistically there to be recovered if it is a collection matter. If it is a matter you are defending, use the information you have about your borrower in preparation of your defense.
5. Establish a Budget for Legal Expenses
Going through the disciplined exercise to determine what a case MAY cost (you can NEVER know with any precision) will actually give you the ability to better control your destiny, as opposed to leaving it to the vagaries of commercial litigation. Determine what is a “win” and at what cost.
6. Stay Involved
Establish what you want concerning communications with counsel and then pay attention to the case. Actively participate and communicate with counsel so you know not only what is going on, but are participating directly in the development and execution of the strategy for the handling of the case. Resolve not to have to ask what is going on. Know.
7. Honestly Assess with Counsel Your Tolerance of Risk and Costs
Your lawyer wants to handle your case to your satisfaction, whether that means all-out victory at trial or settlement of the case on terms that are advantageous, having considered all the dangers and costs. Discuss with your lawyer the actual risks in your case and the potential costs in terms of dollars, distraction and reputation. Never be surprised by or unprepared for anything that could happen in court.
Please contact Alex if you have questions regarding these recommendations for making your interaction with your business litigator more productive. And if you aren’t a banker, don’t despair. These suggestions work just as well for those seeking litigation counsel in virtually any industry.