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April 08, 2009

Putting out fires--permanently.

WAC?'s Holden Oliver wrote a piece in late 2006 I love called "The Art of 'Subsequent Remedial' Advice". The point: if you do litigation, you are presented with all manner of improvements and changes a good client can and should make to its operations right away. Like now, before the next order is received or shipment made. But how many of us don't say or do anything, or delay, because we think it's not part of our litigator's job? Or we think it's a problem we'll mention to the dweeb transactional and tax lawyers down the hall--the ones the client has used to plan and grow for decades--when and if we get around to it?

Litigation often hands you the chance to add value immediately--and solve an operations problem before you finish the barest outline of the Answer.

Examples: Lame or muddy contract language inherited from a predecessor. Legal but just bad or even cruel or stupid HR practices. 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. Or waste storage or 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.

Long-term, you're not really hired to have a good defense; you are hired to have no investigation or action at all the next time out.

Posted by JD Hull at April 8, 2009 09:11 PM


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