I remember when I was a younger lawyer the difficulty I had with clients settling lawsuits that factually and legally had little merit. I remember the partner I worked for telling me that was the cost of doing business. While I knew he was right that comment still bothers me to this day. But the reality is lawyers cost money and the time and expense defending lawsuits can be distracting, especially when a company doesn’t have a legal department or is a routine player in employment disputes.
No matter how distasteful, at the same time a company is getting together all of the documents and identifying the witnesses that are key to defending a claim, the powers that be also need to evaluate the possibilities of settlement. What does mean? Defense counsel should be reaching out to plaintiff’s counsel early on in the process to determine what the plaintiff wants. There are two things I tell my clients that I am generally certain of: (1) a dispute will cost more then you think; and (2) it will also take up more of your time then anticipated.
Now there are certain times where the company may need some discovery to be in a position to evaluate the claims of a plaintiff. But in many situations, dialogue with opposing counsel may give the other side a read into what the lawyer actually believes the merits of the case may be. Trust me, a lawyer on a contingency fee does not want to spend time on a case that is marginal. If it’s marginal they are going to want to resolve it, if not maybe the case as not as marginal as the company thinks.
Most cases are never going to trial. That means there could be a summary judgment or more likely a settlement at some point in the process. The earlier in the process that can be reached the better.
