We represent closely held businesses and business owners in high-stakes litigation who often lack general counsel to align litigation with broader business goals. To fill the gap, we advise clients on the risks, rewards, and costs of each approach. We have watched hundreds of clients ingest this information, process it and make decisions related to the ligation in reliance on it. Some do a better job than others. Here’s three things that work well:

1. Figure Out What a “Win” Looks Like, Do It Early and Do It with Both Feet on Planet Earth

Before diving into the legal strategy, take time to articulate what success looks like. One of our first questions to a new client is “what do you want to happen here?” Do you want money? Do you want a problem gone? Do you want to send a message to discourage similar future claims? Think about that goal in the context of your entire business. Get specific. And then get realistic. Talk without counsel about what is ascertainable and the odds of achieving a given result. In a perfect world, we would always be in a position to tell our clients we have great claims or strong defenses that can be litigated at minimal costs. In the real world, we are more regularly talking about good claims but with concerns about collecting a judgment from a defendant. There are many situations where we have strong defenses that will cost a significant amount to litigate. Sometimes where clients are in difficult positions and the only promise we could make was time—to pay, for market shifts, or to refinance. In the reality is that in large majority of business related litigation, you likely won’t be ‘made whole,’ especially since you’ll usually cover your own legal fees, you can’t get compensation for your and you staff’s time in dealing with us and there is usually some point in the litigation where you will accept or you are willing to pay money to eliminate the ongoing risk of litigation.

2. Think In Terms of Probabilities – Make “Investment” Decisions

Nothing is certain in life, and nothing is certain in litigation. There is no way around it – litigation is risky. For that reason, the clients who display the best litigation decision making are those who think in terms of probabilities. They understand that no attorney that is being honest with them can tell them what is going to happen with certainly – there is no such thing in business litigation. The best decisionmakers find ways to get uncomfortable with uncertainty. They think in terms of the odds of success on a particular motion or a particular strategy. Two clients in recent memory were particularly adept and managing litigation risk. One had a background in data analytics and the other was a bond trader. Every time we came to them with a decision to be made, they employed some version of the same approach. They would define the possible outcomes, determine the probably of each outcome and push us on the cost of implementing a particular strategy. They viewed each decision like an investment decision – how much does it cost, what’s the potential upside and downside, and what are the odd of each?  If the odds of success and the magnitude of the outcome met their criteria, they went ahead; if it did not, we would try a different approach. We never saw them, but I am sure they had elaborate spreadsheets. You do not need spreadsheet or an actuary, but you do need to think in terms of odds, not certainties.

3. Listen to Your Lawyer and Then Challenge Their Approach

The best client decision makers we have seen all have one thing in common – they listen to our advice and then push us on it. It may seem counterintuitive, but we welcome clients challenging our advice. When a client is questioning me on a strategy decision it is usually a good thing. I do not even mind clients using the wisdom of ChatGPT to test my analysis. On one of the first big cases I handled on my own, I was explaining to a client how the statute of limitations might apply to a portion of their claim and that laches might bar another. The issue was germane to settlement discussions and what our opening demand would be. He was upset about the likely bar and the lower opening demand I was suggesting. We talked about the issue at length and, before long, we were talking about the difference between law and equity courts and their merger. We arrived at the decision to make a higher opening demand, somewhere between what I was suggesting and what he initially proposed. (If you are reading this unnamed client and now good friend, I am curious if you remember this discussion). This was a more involved discussion than I expected but I left the discussion knowing that the client had a good handle on what was going on, had fully considered the issues and made a fully informed decision. Ultimately, the client makes the final call on major decisions. The client is entitled to our best advice and zealous advocacy but client makes the calls and lives with the consequences.  A client that is pushing us on strategy is one who is taking their vote and the consequences that can stem from it seriously. This is the client you want to be.…

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