Top Ten Questions to Ask Your Lawyer Before You Litigate
Thomas A. Herr, attorney, Barrett McNagny
You’ve been sued. Before hiring counsel for a litigation matter, consider this:
Does your lawyer have actual trial experience? How many trials, hearings and contested matters has the lawyer had?
Ask for a litigation budget. How much will this cost if you settle the case now and how much might you spend to go to trial or appeal?
Ask for a cost-benefit analysis. You can reduce the chance of unpleasant and costly surprises by knowing the range of outcomes and the chances they will happen.
What are the alternatives to a trial? Non-trial alternatives like mediation can be cheaper and more efficient ways to settle disputes.
Preserve your defenses. Some key defenses can be waived if not timely and properly made. Make sure your counsel considers jurisdictional and other affirmative defenses with you up front.
Put your insurance carrier on notice. Some policies that do not appear to provide coverage for business disputes might cover some aspects of the dispute. Let your insurance company evaluate whether there is coverage.
Put it in writing. Insist on an engagement letter with your counsel identifying the terms and conditions of the representation, the cost and the scope of the representation, and how billing will be handled.
Check for conflicts. Make sure counsel searches for conflicts not only with your opponent, but for anyone else (e.g., competitors) if being represented by the same firm could be a problem later.
Preserve evidence. When you can anticipate a lawsuit you must preserve documents potentially relevant to the dispute. Discuss this with counsel up front.
Compatibility. It’s advisable to spend some time with the attorney who will be handling your case. Have lunch. Litigation can be lengthy and you’ll want to determine if you’re going to be simpatico.