Almost all businesses will face litigation at some point. Whether your business has been threatened with a lawsuit or you’re considering taking legal action yourself, choosing the right business litigation lawyer to represent you should be approached very seriously and methodically.
Spending time on due diligence at the beginning of a professional engagement can save lots of energy, unnecessary grief, money, and wasted time down the road. This is true of hiring any professional or specialized service provider, whether they’re an accountant, an architect, a banker, a contractor, or an attorney.
In selecting a litigator, soliciting referrals from your business lawyer and industry colleagues is a useful first step.
If your regular business or transactional lawyer works in a firm that includes a litigation department, there can be advantages to hiring a lawyer from the same firm—especially if the lawsuit involves documentation drafted by your business lawyer.
If resolution short of a full-blown trial is your goal, seek a personality type consistent with that goal.
Do background research.
Optimally, you should meet with at least three lawyers and not more than five before making a selection. Review the bio page of each lawyer on the law firm’s website to get some general information about their expertise and experience.
Prepare for the face-to-face meeting.
In addition to creating a meeting agenda, prepare a brief written description of your situation along with a timeline of events. Don’t try to “wing” this at the meeting as you’re likely to forget some vital piece of information. Carefully consider your situation, write down the key points, and take this script with you to each meeting to stay focused. If you’re the one being sued, bring a copy of the complaint and any relevant documents.
Ask questions about the lawyer’s experience.
Once you’ve explained your situation, you need to determine if the lawyer you are considering is truly qualified to handle your particular case, and you should be prepared to ask specific questions and to note any of your questions that are not satisfactorily answered or other omissions that could be “red flags.”
Have they handled this type of litigation before? How often? Ask for specific examples and details about the outcomes. How much trial experience do they actually have? You’d be surprised at how many litigators rarely step foot in court.
Find out who will be working on your case.
Ask who will be doing most of the work on the case. If the lawyer heading your litigation team seems to be a major rainmaker, regularly appearing on panels and giving speeches, it’s a good sign that another lawyer will be doing most of the work. This isn’t necessarily a bad thing, but you should also meet with that person at the outset.
Determine how much it will cost.
If you do decide to litigate, ask how long the litigation is likely to last. What kind of budget will be needed, if not for the full case, then at least for the next ninety days or so? Will a retainer be required? How much will it be?
If you’re contemplating filing a lawsuit, your prospective lawyer should definitely mention the possibility of being countersued by the defendant, which is very common in business litigation. Such an occurrence will likely increase the costs of your case.
Explore alternatives to litigation.
It’s a good sign if the lawyer discusses settling immediately and not going to trial. Such candor is something you want in a potential litigator. It is a sign of experience, not weakness or fear. Another good sign is if they bring up mediation, explaining how the process works and providing names of good mediators for you to consider.
Ask the lawyer to talk about their settlement record, not just about verdicts, and to give some examples of amazing settlements. Also, ask how many cases they’ve actually taken to trial as opposed to arbitrations.
If you expect your case to be tried by a jury, remember that arbitrations are quite different, and lawyers who mainly arbitrate may not be prepared for the challenges of persuading a jury to rule in your favor.
Understand the role of insurance.
If the potential litigation involves a dispute based on software, defamation, environmental damage, or trade secrets, the lawyer should ask you about your insurance coverage. They also should discuss the possibility that the other side might be able to ask its insurer to help fight you. If they don’t discuss the impact of insurance, this is a definite red flag.
Whether you’re open to tendering the defense of a case to your insurer or you plan to pay the legal fees yourself, ask the lawyer if they’ve dealt with insurance client billing systems and if they’re experienced in working with insurance companies. To prevent discounted fee payments by your own insurer, which might increase your out-of-pocket costs to make up the difference, your lawyer should know how to avoid “block billing” and similar practices that insurance companies often use to reduce fees paid to law firms.
Wrap things up.
Finally, ask the lawyer what their response time is for returning emails. If they don’t have a firm response time policy, say, within twenty-four to forty-eight hours, that is a red flag.
Unless you are ready to hire a lawyer on the spot, you should thank everyone for their time and let them know you will get back to them promptly. Once you have selected your lawyer, you should circle back to thank the others with a brief email, note, or phone call.