Reading time: 5 minutes

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.


Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Brigit Rubinstein
Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards