What are the keys to winning a bet-the-company case?
The best way to win an argument is to begin by being right. So the first key is to carefully and thoroughly marshal the evidence and the law and then to present the evidence and argue the law in the courtroom in a way that makes it all seem effortless and self-evident.
Second, the company must make a conscious commitment to spend the time, effort and financial resources necessary to defend the case. The commitment of time is every bit as hard as the commitment of financial resources. Businesspeople are always busy. I worked a case a number of years ago in which the CEO had not spent the necessary time to prepare for his deposition. He gave answers that he later regretted. At trial, he changed his answers and the inconsistencies did not serve him well in front of the jury.
Third, the company needs to be willing to participate in the effort to get at the truth. Trials are an exercise in microcosmic history, reconstructing past events in a very specific and limited context relevant to the claims and defenses in the case. The truth should win, and, although juries and judges can sometimes make mistakes, more often than not they get it right. It is a lot easier for them to get it right if the evidence is presented to them in a clear, logical, succinct and understandable way. The company also needs to understand that trials put witnesses under significant pressure, both in depositions and in front of a jury, where the outcome can have a great deal to do with either the plaintiff’s or the defendant’s fortunes. Every witness needs to be well-prepared on the facts and be prepared to be forthright, honest and as articulate as they are able in explaining in simple words exactly what happened. Spending the time necessary to prepare the witnesses to do those things maximizes the company’s chance to win.
Fourth, the company has to have courage. If a case cannot reasonably be settled and the stakes are sufficiently high, the resulting trial places the company’s fate in the hands of a third party (a judge or a jury). No one can be sure how that third party will receive the company’s evidence and its arguments. The willingness and ability to persevere in the face of that uncertainty takes courage.
How can a company prepare for a bet-the-company case?
First, hire a very good, highly skilled business litigator with trial experience. Second, with that lawyer’s assistance, preliminarily evaluate and periodically re-evaluate the case in a level-headed way. Third, if the company determines that its fate could ride on the outcome, a thorough and effective trial preparation plan needs to be developed and implemented effectively and skillfully, recognizing that the plan can change as the case proceeds.
Trials are challenging things. They become, for both the trial lawyer and the client, a quest for victory and in some cases a battle for the company’s survival. No one can guarantee how the judge or jury is going to decide the case. But a well-prepared company aided by a skilled business litigator can maximize its chances of a favorable result.
Thomas W. Hill is a director with Kegler, Brown, Hill & Ritter. Reach him at (614) 462-5403 or [email protected].