ATLANTIC CITY — Local attorney Kevin J. Thornton of Cooper composed the following tips for business owners to help avoid the pitfalls of litigation:
• Recognize The Signs
Nowadays, people are more likely to file a lawsuit. Moreover, the dire economic problems that many people face today have increased the number of people willing to become defendants in lawsuits by intentionally refusing to make payments, failing to deliver goods and services, or neglecting to properly perform con-tractual obligations.
Learn to recognize when a dispute will likely result in litigation. Be practical, realistic, savvy – and trust your instincts. Do not jeopardize your interests by failing to recognize the warning signs.
• Pull Up The Draw Bridge
As soon as you hear that bell go off in your head and decide that you are at risk for litigation, pull up the drawbridge. Acknowledge that your customer has become an adversary. Be prepared to defend your interests by taking decisive action in a timely fashion.
• Shut Up and Become A Sponge
Recognize that every-thing you say and write may be used in litigation. In plain English, follow the “Shut Up Rule.” Assume that any tidbit you share will either make its way to your adversary or be unearthed during an investigation or deposition.
Become a sponge, listening carefully without engaging in a dialogue. Put your soaked-up information in a memo or email for your attorney to evaluate. Ask your adversary to submit his position or demands in writing. This will assist your attorney and could clear up confusion. It might even lead to an amicable resolution.
• Get All Of Your Ducks In A Row
Make at least two copies of all relevant written materials, one for your attorney and one for your “working file.” Protect and preserve the original documents as possible evidence. Use the assembly process to fully understand the situation and evaluate your position.
• Find The Right Litigator Candidates
It is vital that you find the lawyer with the best combination of famil-iarity with your business, substantial litigation experience in such matters, a personality and style that suits you, and the ability to provide services within your budget.
• Prepare For the Interview With Litigator Candidates
Good litigation lawyers are often booked weeks ahead, so call as soon as you can. Be sure to have a list of every-one that may become involved in the litigation in hand when you call. This is necessary. If there is a prior or current attorney-client relation-ship with anyone on the list, the attorney may be disqualified from representing you.
• Effectively Attend Initial Interviews With Potential Litigators
Be familiar with your documents and bring two sets to the meeting. Be prepared to concisely explain the events. Ideally, prepare a written chronology of rele-vant events. Listen actively to assess your level of comfort with, and confidence in, the attorney.
• Hire A Zealous and Competent Litigation Advocate
Make certain that the attorney is 100 percent committed to helping you achieve your objectives in an efficient, cost effective and timely fashion. Be sure that the retainer agreement outlines what (s)he will do, that the litigation retainer amount and replenishment amounts are as discussed and clearly outlined, and that all ancillary charges (travel, postage, invest-igators, photocopying, deposition costs, courier services and the like) are clearly defined.
• Actively Collaborate With Your Litigation Advocate
Remember that this is your case and regularly evaluate the litigation strategies and objectives with your attorney. Adjust your plan of action as facts develop and the litigation evolves. Be prepared to turn over all your books, records, and potential evidence. Share new facts that come to light with your attorney.
• Avoid a Trial: Resolve The Dispute Sooner Versus Later
New Jersey Courts generally follow the “American Rule” – win, lose, or draw, each party pays its own attorneys fees and costs. Keep in mind that many cases are settled through alternative dispute resolution methods. In fact, many contracts now require participation in binding arbitration. will be well prepared for the courtroom battle.
Conclusion: The 10 steps laid out above are based upon more than 25 years of experience representing clients in business, contract, estate, maritime, and bankruptcy litigation in New Jersey’s State and Federal Courts. These 10 steps should assist readers to calmly and confidently deal with business litigation so that they emerge unscathed and even more business savvy.
Thornton was named a Proctor in Admiralty in 2004 and is the chairman of the United States Maritime Law Association’s Fisheries Committee. He lives in Lower Township with his wife Amy. He may be reached by calling 609- 572-7502. KEVIN THORNTON
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