7-Tips For Preparing To Defend Against Potential Litigation
Litigation is a scary proposition. Every year thousands of civil cases are filed in America. Colorado is no different. As both a Plaintiff and Defense Lawyer that practices in various areas of the state, I often find certain courts are more overloaded than others.
In simple terms, civil litigation is litigation that one person files against another person. Normally, it is one person alleging that another person had committed some wrongful act and as such as a matter of law they are entitled to something such as damages. For criminal litigation, it is typically the state or other governmental entity alleging a person has committed a wrongful act and as a result that person should be punished. These are not technical descriptions, but they will suffice for our discussion.
Today we are discussing civil litigation defense. I cannot comment on what would be appropriate for your situation. You need to talk to an attorney. Rather, these are a few general tips that I use in my daily life that may help you to prepare to defend against potential litigation.
PLEASE DO NOT RELY ON ANY PORTION OF THIS ARTICLE AS VALID LAW. THESE ARE TIPS AND NOT APPROPRIATE FOR EVERY SITUATION. THIS IS NOT LEGAL ADVICE. LAWS AND RULES CHANGE ON A REGULAR BASIS. CONTACT AN ATTORNEY FOR THE MOST UP TO DATE LAWS.
1. Think Like A Lawyer:
No, I do not mean everyone should go to law school. But, In theory, a good legal system should be designed to punish bad conduct, promote fairness, and protect rights. We as Americans live in a democratic society. As such, we have elected officials. Voting is important because in theory these officials are supposed to represent the voice of the public.
Starting with the legislator, when you elect a senator, house representative, local congressman, or other similar legislative official, you are electing a person that will speak and vote on your behalf in their respective realm. Legislative officials design laws and vote on if they will be enacted. As such, the process of introducing bills (documents containing laws), discussing, and voting on them is supposed to ensure that each person has a voice through their elective official and the cumulative voice of all the people through their elective officials will result in the passage of laws that reflect the majority of the country’s beliefs. This is sugarcoating the process and simplifying it but it gives you the basis for this tip.
The executive branch is the enforcement arm. For the purposes of our discussion, you need to know that they are tasked with the enforcement of the law. Their role can be more extensive and, in some cases, including interpretation which goes beyond this simple discussion.
But in short, the key takeaway is that laws are in theory are supposed to reflect the majority of people’s views at the time. That is not always the case since laws are complex, they take time to change, they interplay with multiple layers of other law, politics, money, and other. As such, this concept will not hold in every situation.
But the phrase, what would Jesus do comes to mind. It’s the same concept.
In general, when you are dealing with a complex situation, you should reflect on your personal knowledge of the law that you have in your wheelhouse, contact an attorney, and reach out for help, if possible.
But in addition, in your daily life you should start to ask yourself, based on the political climate, the situation, and so on, what would 51% of the people say is the right choice? This train of thought is not intended to give you the right legal answer every time. Rather, it helps you to start to think about the law as an evolving thing and begin to ask questions about how your actions may be seen by others.
In addition, study your local ordinances and laws. Start to build that working base. You will never be right 100% of the time but some knowledge is often better than no knowledge.
Again, this is not legal advice. It is highly recommended that you contact an attorney. It is likely that you will be wrong allot if you employ this method. As always, contact an attorney if you can.
2. Anticipating Litigation:
In my experience, it is very rare that some gets sued out of the blue. There is typically a warning sign such as an angry comment, a letter, a text or other.
Start to look for the warning signs such as trigger words like breach, lawsuit, you’ll pay, etc… If you feel like someone may be planning to sue you, why would you wait and see if you can contact an attorney today to start to work through the situation. An attorney may tell you to wait and see but at least you can have that initial conversation to perhaps find an attorney before you are under the gun. In the alternative, they may reach out to the other party pre-litigation and help you to resolve the matter or other.
The point is once litigation starts it starts. You have deadlines to meet, documents to gather, and gameplans to develop. Getting a jump start can be very helpful even if it costs you some additional funds.
3. Gather Quality Documentation:
I cannot tell you how crazy it drives me when someone calls, tells you about this great case, and then provides me with an out-of-focus picture of a contract in multiple Jpegs. Unfortunately, inadequate documentation is a common reason why I do not accept potential clients as clients.
Attorneys love documents because they give us something to read, they are often controlling, and if they are not controlling can act as important evidence. But, to introduce a document into evidence, you either need an original or exact copy. You need to be able to prove that what you are presenting is what you say it is. There are multiple evidentiary rules on the topic.
The more footwork you do upfront, the cheaper it is for you in the long run. If I need to request documents from your multiple times that may result in fees. Worst, it can cause delays that can cause big legal impacts in your case. The rules of discovery are not kind. As such, I like to have everything in usable format upfront. If your entire case rests on a series of text messages but you cannot provide them to a court or adverse counsel in a timely fashion, you are risking your case because you did not do the footwork upfront. End of scary speech.
Ideally, I like to see Kinko-level copies of documents from potential clients. Potential clients should consider going to FedEx and scanning clean copies of their documents into a PDF form. Then they should store the originals in a safe place. Refrain from editing any of the documents because that can make them inadmissible.
Even if we decide not to work together, it is a good idea to have copies of everything in case you need them for court or for consultations with other attorneys.
4. Find An Attorney You Like Now Versus Later:
Contrary to popular belief, it is not that easy to find an attorney, especially if you need them today. The phrase I have called everyone seems to float around allot. Well, that phrase can be caused by a few factors including you being a brand-new potential client, you lacking the funds, the amount of work it would take to get your case to the point it is defensible, gathering the appropriate documents, the deadlines associated with your case, the lawyer’s current workload, and so on.
You may not need an attorney now. But preparing the case beforehand, doing the leg work, saving the required funds, and maybe even finding an attorney may help to reduce problems down the road. Many lawyers offer free consultations.
Another common complaint is that all the attorneys seem to specialize and do not handle my type of case. Law like medicine requires years to gain a handle on. As such, not every attorney can handle every type of case.
A good starting point is google or your local bar association. The Colorado Bar Association has a referral tool that asks various questions and is great for helping potential clients find list of lawyers that may handle their type of work.
5. Honesty:
When you talk to an attorney that you want to represent you, you need to be honest. This is especially important when telling your side of the facts. Tell the good, bad, and the ugly. If you don’t, it can make it very difficult to give you real advice. Worse, these facts come out for the 1st time at trial and now there is nothing that can be done (IE my reoccurring nightmare).
Our legal system is built around the concept that those in front of it will tell the truth. If your case cannot stand on its own merits without hiding the truth, then it is not as strong as you think it is. At that point, your lawyer needs to start building a new gameplan that will best serve your needs while ensuring we are upholding the ethics and integrity of the American justice system.
Lying to your attorney can result in an array of ethical problems for the attorney including the attorney need to disclose your misstatement to the court, in some circumstances, or withdraw from the representation. Lying to the court, can subject you to both civil and criminal liability. In short, there are an array of reasons why it is important to tell the truth. I’ll leave it at that.
6. Gameplan:
Once you recognize that you are probably going to get sued it is important to establish a gameplan. For county court in Colorado, you may only have 14-days to file an answer once you are served. For district court, it is most likely 21 days. That is not allot of time. If possible, you want to contact an attorney ahead of time, explain the situation, provide documentation, and develop a gameplan.
One thing I like to do for my clients is to develop a statement of facts. It is a list of facts supported by their testimony and evidence that explains the situation. Next, I take that statement and develop a list of potential claims that can be asserted against the adverse party and potential claims the adverse party may assert against the client. This process helps me to identify risks and claims before they are asserted or arise so we can try to address them now versus later. While you can never catch every potential claim an adverse party can throw at you, you would be surprised how this process can lay the foundation for a stronger defense down the road. IE, if I know defamation is a possibility, maybe we start interviewing potential witnesses today to get an idea of who may be important to your defense down the road. Every situation is different but you are creating options.
Preparation and honesty is key. You have to be honest with yourself about the risks. Next, you need to prepare to help mitigate those risks. If you cannot mitigate the risk, then prepare to help mitigate damages and so on. The point is that a well through out gameplan can help you in the long run. The more time you give to your attorney to prepare this the better.
7. Open Discussions:
Okay, you have found an attorney, you have hired them, you have provided all the documentation, and the attorney is ready to talk to you about strategy, the strength of your case, and potential defenses.
At this point, it is important that you have an open mind. Everyone walks into their case with their own opinions about why their case is good or bad. In reality, most cases have a bit of both. Allowing yourself to hear both sides of an argument can help both you and your attorney to explore your options.
Hopefully, these thoughts and ideas are helpful. Please be aware that this is not legal advice and none of these options will protect you in every circumstance. It is important that you consult with an attorney before making legal decisions.
PLEASE DO NOT RELY ON ANY PORTION OF THIS ARTICLE AS VALID LAW. THESE ARE TIPS AND NOT APPROPRIATE FOR EVERY SITUATION. THIS IS NOT LEGAL ADVICE. LAWS AND RULES CHANGE ON A REGULAR BASIS. CONTACT AN ATTORNEY FOR THE MOST UP TO DATE LAWS.