What to Expect When You’re Expecting… A Lawsuit

by James Parker

So it’s happened. You got a letter from a lawyer demanding money or that you “cease and desist” from doing something.

Or maybe you have a contract that the other side isn’t performing.

Or maybe you have a contract that you can no longer perform. You know this is going to court. It’s just a matter of time.

What do you do now?

The first and most obvious thing is to call your lawyer.

Talking to your lawyer before a lawsuit begins will enable your lawyer to identify ways that litigation may be avoided altogether. Is there a possibility of a negotiated resolution? Might pre-suit mediation be productive? Ideally these options could be explored before the parties incur the cost of even the beginning of litigation.

But if a lawsuit cannot be avoided, involving your lawyer well before suit is filed can be critical in determining the lawsuit’s ultimate success. Your lawyer may be able to identify ways to act preemptively to (1) set the venue for the lawsuit, (2) obtain recovery of attorney fees where recovery might not otherwise be possible, and (3) seek a speedier determination of some issues (perhaps even preparing the ground so those issues are more favorable for your case as well).

But aside from contacting your lawyer, there are a few things you can do yourself to get ready for a lawsuit:

Note in the file that you anticipate litigation: This step is important in preserving the confidentiality of your communications going forward. Once you and your lawyer anticipate litigation, the work you do to prepare for that lawsuit will generally be protected from disclosure in that litigation.

Preserve documents: This starts with suspending your record-retention schedules under which you may routinely destroy documents. But it doesn’t end there. To adequately preserve documents, you should start by taking the following steps:

• Identify who may have relevant documents. Employees who have relevant documents should be specifically told not to destroy any documents, delete emails or text messages, or cancel accounts with third-party services where relevant information may reside (e.g., Skype).
• Identify computers and accounts on which relevant documents may be stored. It may be desirable and cost-effective to have those computers/phones/tablets imaged by a third-party vendor to preserve the data contained on them.
• Identify third parties who may have relevant documents. If there are third parties who keep documents on your behalf or hold relevant documents as part of an ongoing relationship, they should be identified so that your lawyer can contact them and have them implement their own document-retention protocol.
• Remember that “communications” doesn’t just mean emails anymore. Workplace communications now frequently include text messages, WhatsApp and other messaging applications, instant messenger applications, and video conferencing platforms (e.g., Microsoft Teams, Zoom). Communications on those platforms need to be preserved just the same as emails.

Identify witnesses: The exercise of identifying who has relevant documents will also tell you who is likely to have relevant information and may be a witness. These people should be promptly identified for your lawyer.

Public comments: It’s up to you. But remember—anything you say can and will be used against you in a court of law. While public comment may sometimes be unavoidable and even necessary from an operational standpoint, you ought to consult with your lawyer before making a public statement when a lawsuit is expected.

Look—we know that litigation’s not fun. But sometimes it can’t be avoided. And when it is unavoidable, a little work at the beginning—or even before the beginning—can save you a lot of work during the litigation, and even set you up to win the fight you never wanted to have.

James Parker is a Principal in the Firm’s Litigation and Appellate Practice Groups. If you have any questions or would like additional information related to this article or other matters, please contact James at 512.322.5878 or jparker@lglawfirm.com.