What advice do you have for clients facing litigation?

From Philip's interview for the Masters of the Courtroom series on ReelLawyers.com.

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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.

Comprehensive Intellectual Property Litigation

As the value of business’ confidential information, trademarks, trade dress, copyrights, and patents has skyrocketed, and as business competition has intensified exponentially, intellectual property litigation has never been more important, nor more prolific.

Phil Kessler has decades of experience as lead counsel in intellectual property cases. He is also well able to counsel clients on cost-effective means of avoiding pitfalls that can lead to unwanted challenges to IP ownership and validity; he advises clients proactively on strategies to protect against the loss of their intellectual property rights. As with the firm’s commercial litigation practice, we represent both plaintiffs and defendants effectively.

Phil is supported by his long time protégé, Thomas Noonan. Phil and Tom work together seamlessly in case after case.

Our extensive experience in commercial litigation creates advantages in handing intellectual property litigation successfully, especially those intellectual property cases that involve complex, technical subject matter. We know how to communicate to judges and juries to make concepts and jargon understandable that often seem incomprehensible. This skill is essential to obtaining a successful outcome.

We look forward to assisting clients when the potential for intellectual property litigation exists and in handling their cases when settlement cannot or should not be achieved and litigation is the preferred course of action.

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