Outline of Stovash, Case & Tingley, P.A.'s Seminar on Prosecuting or Defending a Commercial Lawsuit: How to Maximize Your Outcome While Controlling Your Outgo

Prepared by:

Stovash, Case & Tingley, P.A.
SunTrust Center
200 South Orange Avenue
Suite 1220
Orlando, FL 32801-3410
Phone: 407-316-0393
Fax: 407-316-8969

I. An Overview of the Legal Process -- The Steps to Judgment

1. The Demand - "To Sue Or Not To Sue, That Is The Question . . ."
   
   
2. The Claim (If You Are Plaintiff)
   1. Research the possible causes of action prior to filing
      1. Facts
      2. Law -- theories (causes of action) and statute of limitations (deadline)
   2. Complaint
      1. Drafted by attorney, but reviewed by client
      2. Filing with Court and service of "process" (personal, mail, substituted, publication)
   3. Initial Impact
      1. Typically "miles"/months away from disposition
      2. Sometimes prompts early settlement; usually nothing happens yet
3. The Response (If You Are Defendant)
   1. Research possible defenses and possible technical defects in Complaint
      1. Facts
      2. Law
   2. Motion practice
      1. Motion to Dismiss
         1. No jurisdiction
         2. Improper venue
         3. Failure to state cause of action
         4. Improper service of Complaint
      2. Motion to Strike
         1. Embarrassing or scandalous allegations
         2. Improper requests by plaintiff in Complaint
      3. Motion for More Definite Statement (when you cannot reasonably understand the plaintiff's contentions)
   3. Answer
      1. Admissions and Denials
      2. Affirmative Defenses ("The allegations of the Complaint are essentially correct, but I have a good excuse")
      3. Default -- failing to respond to Complaint
4. Claims by Defendant against Plaintiff and Third Parties
   1. Research possible claims against Plaintiff and others
      1. Facts
      2. Law
   2. Counterclaim (claim against Plaintiff)
      
      
   3. Third Party Complaint -- claim against another which is related in some way to Plaintiff's claim against Defendant
      
      
   4. Cross-Claim -- claim against a Co-Defendant
      
5. Discovery -- The Fact-Finding Stage of Litigation
   1. Depositions and witness statements
      
      
   2. Interrogatories
      
      
   3. Request for Production
      1. Documents
      2. Persons
      3. Things
         
         
   4. Request for Admissions
      
      
   5. Internal research and preparation for responding to discovery
      1. Review and organization of company records and data
      2. Company witnesses
         
         
6. Motion for Summary Judgment -- Asks Court for Judgment Without Trial (optional and rarely granted); May Be Beneficial Even If Denied
   1. Legal research
      1. Facts
      2. Law
   2. The Motion and supporting affidavits
7. Alternative Dispute Resolution
   1. Mediation -- parties arrive at mutually tolerable outcome with the help of an independent facilitator/mediator
      
      
   2. Arbitration -- binding v. non-binding -- independent decision-maker decides the issue
      
8. Pre-Trial Stage
   1. Preparation of exhibits
      
      
   2. Preparation of witnesses
      
      
   3. Meetings with client
      
      
   4. Motions in Limine
      
      
   5. Preparation of Pre-Trial Statement
      
      
   6. Jury Instructions
      
      
   7. Pre-Trial Conference
      
9. Trial
   
   
   1. Top priority commitment of key corporate executive(s) required
      
      
   2. Legal research
      
      
   3. Continued witness preparation
      
      
10. Verdict (jury) and Judgment (court) -- Collectibility
    
    
    1. Only a "hunting license"
       
       
    2. Many judgments are uncollectible
       
       
    3. Many are satisfied for less than face amount
       
       
    4. Collectibility is an entire subject by itself
       
       
11. Appeal (Heaven forbid)

II. Managing the Legal Process

1. What Kind of Lawyer Do You Need?
   1. Corporate office-practice lawyer v. trial lawyer
      
      
   2. Business lawyer team
      
2. How to Control Costs
   1. Do the maximum up-front decision-making with your attorney
      1. Evaluate desired outcomes v. overall business strategy
         1. Win at all (or what) costs?
         2. What are we defending/pursuing?
            1. Company's reputation/image
            2. Dollars
      2. Choose a desired strategy early
         1. Aggressive v. passive
         2. Settlement v. adjudication
   2. Avoid micromanagement
      1. "Fix my car" v. "Use that wrench . . ."
      2. Delegate to attorney
   3. Set realistic budget parameters for legal costs, taking into consideration:
      1. Attorney reporting
         1. How often?
         2. In writing/verbal?
         3. Personal meetings?
         4. To whom?
      2. Type of pleadings
      3. Extent of discovery
   4. Use in-house staff for legal support
      1. File organization, document and exhibit preparation, data analysis and testing
      2. Appoint one specific person responsible as "inside director"
         
   5. Respond quickly, make clear decisions to help attorney operate efficiently
      
      
   6. Be flexible on procedures and tactics; be as constant as possible on overall objectives and strategy
      
      
   7. Get personal commitment of key corporate representatives for:
      1. Decision-making re: strategy, costs, settlement
      2. Personal presence in courtroom and/or at key meetings
         
   8. Recognize and control potential business costs of case
      1. Do not let normal business operations suffer
      2. Involve only minimum number of staff necessary
      3. Evaluate early the possible negative effect of lawsuit's allegations on:
         1. Prospects/customers
         2. Investors/stock prices
         3. Employees -- attitudes/motivation
         4. Supplier relations
      4. Take time to understand the legal process
3. How to Maximize the Outcome of Your Suit
   1. Move lawsuit from emotions to sound business decision
      1. Anger and outrage not consistent with good business judgment
      2. Always consider practical value of settlement v. pursuing case
         

   2. Undertake risk/reward analysis at every stage of litigation

   3. Provide your attorney with all information about case early in case

      1. Particularly everything NOT in your favor.
      2. Do not surprise your attorney ("Oh, I forgot to tell you about..."); allow your attorney to prepare for them.
      3. Candidly examine the corporate "political" environment
   4. Communicate your feelings to attorney
      
      
   5. Be an active part of your legal team
      
      
   6. Efficiently locate and produce needed information
      
      
   7. Respond quickly to requests for information, decisions, etc.
      
      
   8. Look for settlement "windows" -- be receptive to opportunities

III. Client/Attorney Expectations

1. A Successful Legal Process Begins With a Successful Attorney-Client Relationship:
   
   
   B udget O bjectives S trategy S ettlement
   
   
2. You Have a Right to Expect Your Attorney to:
   1. Take charge of your case -- including the worrying -- so you can focus on doing business
      
      
   2. Communicate pro-actively with you -- keep you fully informed, and fully explain actions
      
      
   3. Operate in concert with you -- based on mutual understanding and agreement
      
      
   4. Provide you with a clear and understandable fee arrangement and efficiently report and account for costs
      
      
   5. Defer to you all those decisions which are your responsibility, i.e., budget, strategy and settlement
      
      
   6. Provide full information and advice to help you make decisions
      
      
3. Your Lawyer Has a Right to Expect You to:
   1. Provide complete and honest information regarding your case
      
      
   2. Communicate and respond in a timely manner to requests for information and/or support
      
      
   3. Make decisions on a timely basis and take responsibility for those decisions
      
      
   4. Keep your expectations of service consistent with your direction on budget and strategy
      
      
   5. Pay according to the terms of your agreement, and not according to whether or not you like the outcome
      
      
   6. Call if you have any problems with the direction in which your case is proceeding

IV. How NOT to Win Your Case -- How NOT to Maximize Your Outcome and LOSE Complete Control of Your Outgo (costs)

1. Ignore a demand letter from an adversary
   
   
2. Ignore a Complaint filed by your adversary until the day response is due
   
   
3. Don't respond to the Complaint at all -- DEFAULT JUDGMENT
   
   
4. Tell your attorney "don't spend any money" and "don't do anything"
   
   
5. Stay angry and insulted, and treat your attorney as if he's part of your problem

CONCLUSION

Stovash, Case & Tingley, P.A., strives to meet and exceed all the expectations we have outlined here.

We endeavor to be the ideal attorneys, working efficiently, and establishing a relationship of trust and partnership with our clients.

We seek to obtain for our clients the best practical outcome available to them.

Please retain this material for review when

• You are preparing to write a demand letter;
• You are considering filing a lawsuit;
• You have received a demand letter or lawsuit;
• You are already involved in a lawsuit.