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July 14, 2015

Complaints against business clients--even "bad" and poorly--grounded complaints--carry messages about problems you can address now.

Litigation against a business client--even frivolous or ill-advised litigation--will usually cast a spotlight on things you can fix now.

You don't believe me? Take a look at the last three or four complaints filed against any of your clients. Or, even better, review again that one you just received today. If you are (inside or outside) counsel, you are presented with all manner of improvements and changes a good client can and should make to its operations right away. If you are a litigator, you might be well advised to get that complaint to a non-litigator down the hall who may work on that client's day-to-day business.

Fix things now. Before you respond to a complaint. A client problem--it will usually fall in the category of "imperfections" or "operational glitches" rather than actual wrongdoing or illegality--is probably sunning itself in the filed complaint and looking up at you. Address it now, before the next order is received, before the next shipment is made, before the next employee termination, before you execute the next license agreement. Get that problem to someone who can fix it, not litigate it. Litigation almost always hands you the chance to add long-term value immediately--and solve an operations problem before you finish the barest outline of the Answer or Rule 12 Motion. So get that complaint to that geek non-litigator down the hall or on the 10th Floor.

Here are simple, pedestrian and day-to-day problem areas complaints tell us about:

1. Legal but lame or muddy contract or related terms and conditions language inherited from a predecessor company. E.g., Confusing or poorly drafted choice of law or ADR provisions, which always seem to get litigated preliminarily in an expensive opening sideshow that delays focus on the merits.

2. Legal but bad waste storage or waste handling methods which "comply"--but just barely--and makes a state or federal agency or private citizen look a little too hard and long at your client's facility next Spring.

3. Legal but bad HR practices. Consider here the repeated "un-classy" firing--a termination which is legal but brutal and will get you sued. You win handily--but fees to obtain summary judgment may exceed $100,000.

Long-term, you're not hired--as outside counsel or a GC--to have a good defense, or a "good case". You are hired to have: (a) no future issue, (b) no investigation (c) no dispute and/or (d) no lawsuit. Generally, even frivolous complaints carry messages about a client's operational problems you can act on immediately.

Posted by JD Hull at July 14, 2015 10:03 AM

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