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Litigation can be expensive, time-consuming and often unpredictable. However, it can also be an effective tool to resolve commercial disputes and achieve a desirable outcome for your business. If your business becomes involved in a dispute, it is important to take the following steps and ensure litigation is both efficient and effective.

1. Brief a Lawyer Before Sending a Letter of Demand

Once it becomes clear that there is a dispute between your business and another person or entity, the initial step you take is the most important one. Like many, you may be reluctant to get lawyers involved until it becomes absolutely necessary. Unfortunately, that may be too late. The initial step, which is typically sending a letter of cancellation or letter of demand, is critical to your strategy and ultimately to the success of your case. Therefore, it is vital to brief a lawyer before you send a letter of demand.

2. Prepare a Comprehensive Brief 

You may understandably want to send out an initial letter of demand as quickly as possible, especially if there is a lot a stake. However, rather than rushing through instructions and sending that off to get the ball rolling, you should prepare a comprehensive brief. To ensure best prospects of success for your business, you should include all relevant:

  • correspondence;
  • contracts; and
  • documents.

Providing your lawyer with a comprehensive brief ensures they can best assist your business by considering all of the facts and context of the dispute when advising you on your letter of demand.

3. Collect all the Relevant Documents

Start collecting all relevant documents soon as you realise litigation may follow a dispute. Doing so may mean sending out a notice asking employees to retain all relevant documents. Immediately collecting and analysing relevant documents allows you to prepare strategically and avoid any unpleasant surprises halfway through the matter.

4. Obtain Advice Early On in the Matter

Before you initiate court proceedings, it is often a good idea to get legal advice. Litigation often develops a momentum of its own, and you may find yourself nearing the trial date before you clearly understand your legal case. Getting legal advice early on also helps you to explore and understand the strengths and weaknesses of your case.

5. Interview all Material Witnesses Early On

Witnesses to your dispute may move on, they may change jobs or relocate. As with anyone, their memories may fade, and motivations may change. Therefore, it is important to interview witnesses and record their statements as soon as possible. A comprehensive record of evidence will prove to be invaluable when you’re preparing for litigation.

6. Consider Alternatives

It is important to consider mediation or settlement as alternatives to continuing with litigation. It is even more important to do so at the right time in your dispute. A lawyer can advise you on key negotiation points within your dispute to ensure you are alert to these opportunities as they arise throughout your matter.

7. Examine the Commercial Outcome – Not Just the Legal One

Litigation always results in a commercial outcome. It is important to consider the following questions to determine the commercial outcome and affect of the issue on your business:

  • What is at stake for your business and what outcome are you trying to achieve?
  • What resources (financial and other) will be necessary to pursue the case? You should consider what effect litigation will have on your business. For example, key employees may not be able to perform their jobs for lengthy periods of time to assist with the litigation.
  • How will customers, employees or suppliers react to the litigation? Consider the impact on your business relationships.
  • Will your business be damaged by the public nature of the litigation? Litigation puts your dispute and surrounding documents in the public sphere, so consider the implications of that.

8. Manage the Fall Out

Litigation puts the dispute in the public domain. Potentially sensitive documents may be disclosed and anything your employees say may be put on public record. The media may also report on the matter. Be proactive and manage communication with customers, employees and suppliers carefully. Rather than waiting for the other party to put their own spin on the matter, you should communicate your stance as soon as practically possible.

9. Use Technology

Technology is a very effective tool to manage costs and efficiency. Consequently, you should leverage it whenever appropriate. For example, you can significantly reduce trial preparation costs by using technology to manage the often substantial document discovery process. In some instances, such as domain name disputes, online dispute resolution may even be feasible. Obtaining legal advice is important, because your lawyer will know when to use technology to ensure efficiency.

10. Conduct an In-depth Post Litigation Review

Litigation can often result in valuable business lessons. It may highlight problems with the way you draft your business contracts, implement your policies, or other operational concerns. Whether or not the litigation was successful, a formal post litigation review with your lawyer is an opportunity to learn and grow. While this step is most often overlooked, it is very valuable.

Key Takeaways

If your business becomes involved in a dispute that may lead to litigation, it is vital to be proactive as opposed to reactive in managing litigation. Rather than pursuing a case aggressively, you should ensure that litigation is both time and cost effective while achieving your commercial objectives by following the steps listed above. If you have any questions or need advice in preparing for litigation, get in touch with one of LegalVision’s litigation lawyers on 1300 544 755.


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