What advice do you have for clients facing litigation?
From Philip's interview for the Masters of the Courtroom series on ReelLawyers.com.
Well, the first thing that I would want clients to understand is that at times, not all the time, litigation is extraordinarily stressful. They will find themselves in uncomfortable positions, they will find themselves having to talk about things to opposing counsel and even ultimately in the courtroom if it's not settled, that they might not want to talk about or don't want to talk about, and they need to get comfortable with that. So there's stress, there's discomfort.
Litigation is inefficient, horribly inefficient, in any state or federal court. It's just a matter of degree, so clients will face endless delays. I tell clients, litigation and delays go hand in hand; you're going to become frustrated, really frustrated at times.
Litigation is expensive in two ways. The obvious way is legal fees and associated expenses like the cost of expert witnesses; they're generally very expensive, sometimes much more expensive than lawyers who are charging by the hour if they are charging by the hour. In addition to that, there is the time that the client and client personnel, if the client is a business, are going to lose when they have to devote themselves to becoming part of the litigation team, to feeding us all of the facts, not just good facts, all of the facts, the facts they're happy to tell us about, and especially the facts they don't want to tell us about; the production of documents, the production of records, the production of emails, the searches that have to be done electronically in the modern era, all of those activities are incredibly time-consuming, and they're going to take client representatives (again, I'm talking about a client business, but it would apply to an individual litigant client as well) away from their day-to-day activities for meaningful periods of time and sometimes under deadlines that will not be convenient for them. They need to be prepared for all of that.
If you're a plaintiff, and therefore you don't, by definition, have to be in litigation, I always explain to the potential plaintiff client what they're going to face if they pull the trigger and sue. I tell them if you're not prepared to go all in and do it properly, you're wasting your time and you're wasting your money; better not to do it at all. If you can make the commitment and do it right and do it to the best of your ability (because we're going to do it to the best of our ability, you can be certain of that), then go for it. If you can't, save your money, save your time, swallow hard, and move on.
If you're the defendant, of course, you don't have that choice; you've been sued. But if it's something that you can't commit to, then we have to try to find extra efforts to find ways to settle the case because if you can't commit to it, it's not going to work well, and what you spend in time and money is likely to be wasted. So it's very important that you understand what you're facing; those are the absolutely most important things.
Collaboration, I was saying before, the client and client representatives must really become part of the team. It's very important to work with the lawyers, trust your lawyer. There will be things that will happen that you won't understand if you don't understand them and you're concerned about them; speak up about them, have a candid conversation about them. If there are things that happen that you don't like (and there probably will be), talk about those things. Be open with your lawyer so you can trust the lawyer because you're going to be in the foxhole together, and as I say, it will be uncomfortable at times.
Be realistic about your goals and work with your lawyer to be realistic about your goals. Your lawyer should help you understand what's achievable, what might be achievable, what's not achievable, and take your emotion out of it. Remember that your sense of fairness, your sense of justice might not align with the law and the facts of the case. Work with your lawyer to be realistic and understand what's probably achievable and what probably is not.
Lastly, be open to settlement. Settlement is not defeat. I talk to clients about responsible settlements, that means something where you give up things as the client that you wanted, that probably makes sense for you to give up on a cost-benefit basis when you look at the cost and the uncertainty and the risk of continuing the fight, and you look at what you can get in the way of certainty through a settlement; that may make sense. If it doesn't seem responsible after a rational analysis, then keep going and don't feel bullied into a settlement. But be open to a settlement because settlement does take the uncertainty out of the litigation process, which is loaded with uncertainty, and it stops the cost, it puts an end to it.
Lastly, I guess just bear in mind big parts of the litigation process are unpleasant. They're designed to be unpleasant. Everybody who goes through the litigation process will tell the novice who's never been through it: it's going to be unpleasant at times. Expect that.
Memorable Commercial Litigation Case
From Philip's interview for the Masters of the Courtroom series on ReelLawyers.com.
Well, I've been fortunate that there are many that I could talk about, but I'm picking one. This one was tried to a jury in a major federal court, not in New York but in Michigan, about 10 years ago. I won't identify the case by name because of some of the things that I'm going to be relating in the context of my answer to your question.
It was a manufacturing case, heavy manufacturing. Our client was a manufacturer and supplier of customized parts in a particular industry. The defendant was the purchaser, a giant company and the largest in its industry, with a long-term requirements contract with our client. A requirements contract, in simple terms, means that the defendant was obligated to purchase all the parts described and called for in the contract from our client. However, they treated it more like an option contract, buying parts from our client only when they wanted to and going elsewhere for better prices or other reasons, sometimes concealing these purchases or making up excuses.
We sought many millions of dollars in contract damages and were trying the case in one of the more conservative communities politically and socially in the United States. Many lawyers in that community had told me that there was no chance of getting more than a low seven-figure verdict, which was not adequate for the damages we believed were justified. I conveyed this to the client, and we did the best we could.
The keys to what ended up being the largest commercial verdict ever obtained in that court were:
- The work of my team, which consisted of the client, the client's personnel, and several lawyers in my law firm who supported me. They put me in a position to thoroughly cross-examine and expose the lies, deceit, and prevarication of the defendant's executives, one by one. The jury was fully engaged, taking notes and becoming deeply interested in the case.
- Despite facing a hostile judge, who tried to interfere with my cross-examination, I stood my ground and continued the cross-examination as I deemed necessary for the case.
- The client, while being ferociously smart and successful, had to be coached to present himself in a way that wouldn't turn off the jury. He had to find humility and avoid chest pounding, which we worked on with him for weeks before the trial.
In the end, the jury gave us almost every penny we asked for, and it was an unforgettable case that lasted about a month. I remember being so exhausted that I was driven home the next day. It was a fabulous experience, and there have been many others like it.
Sophisticated Commercial Litigation Services
Our commercial litigation team provides advice and representation based on decades of experience skillfully handling complex cases and trials. Our senior partner, Philip Kessler, leads our litigation practice. He was trained and practiced at major law firms. Phil has been recognized repeatedly for his litigation and courtroom skills. He has amassed a distinguished record of difficult jury and non-jury trials in which he served as lead counsel and achieved exceptionally successful results. He has tried cases in jurisdictions throughout the United States. We encourage you to review Phil’s profile.
Phil is supported by his long time protégé, Thomas Noonan. Tom has two decades of experience in complex business litigation and trials. In particularly complex corporate cases, Phil is also supported by Richard Green whose extensive knowledge of corporate and commercial law, coupled with his litigation sensitivity, add great value to these engagements. Finally, where the demands of a case require a larger team of lawyers, we call on firms we know and trust to work with us seamlessly and cost effectively.
Our team’s trial experience enables them to give our clients the practical, concrete and understandable advice they need and deserve. Phil and Tom always encourage clients to contact them as soon as possible when they sense that a dispute is brewing, ideally well before litigation has been commenced or has become inevitable. Often, early consultations result in advice that eliminates the need for costly, years long litigation—or enables our clients to mitigate risk and improve the prospects for achieving a successful result.
Their subject matter experience in commercial disputes is as diverse as it is extensive. Phil and Tom represent plaintiffs and defendants with equal ease and confidence in trials before state and federal courts and in arbitration.
Our lawyers’ hard-earned judgment, forged by decades of demanding work, creates valuable advantages for our clients. We wouldn’t have it any other way.
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