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October 26, 2010

Using Litigation: Put out the client's lingering fires--permanently. Do that before you respond to the complaint.

Litigation puts a spotlight on things you can fix. Things you can fix now. The opportunities are endless--for both GCs and outside counsel--and you see them in every dispute filed.

Before he quit, the first time, our co-writer Holden Oliver wrote a piece in late 2006 we love called "The Art of 'Subsequent Remedial' Advice". The Point: if you are outside counsel, or even inside counsel, and "do" litigation, you are presented with all manner of improvements and changes a good client can and should make to its operations right away.

Yes, fix it. Like now.

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Now, before the next order is received, before the next shipment is made, before the next employee termination, before the next disposal of that residual waste from day-to-day operations.

But how many of us--outside counsel, and even GCs in litigation management and oversight--don't say or do anything, or simply put it off, because we think it's not part of our "litigation" job?

Or we think it's a problem we'll mention to the polite 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? But we never do take action on it. It becomes a well-meaning "things-to-do" note made in the excitement of the beginning of a fight.

Litigation often 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.

Examples: Lame or muddy contract language inherited from a predecessor. 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.

My favorite after terms and conditions in contract language is always this: Bad HR practices, or the repeated "un-classy" firing--a termination which is legal but brutal and inartful and will get you sued. You win handily--but fees to obtain summary judgment exceed $100,000.

How handy is that? At what price glory?

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: (1) no future issue, (2) no investigation (3), no dispute and/or (4) no lawsuit.

The opportunities are endless--for both GCs and outside counsel--and you see them in every dispute filed.

Posted by JD Hull at October 26, 2010 11:59 PM


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