5. Develop Litigation Strategies Early

Litigation can only be cost-effective where there is a big-picture strategy developed at the outset, when the facts are fresh and the relevant players are still available. It is important to set aside time to do this, as soon as the complaint comes in, rather than allowing the case to lapse into the myriad legal activities that can feel like progress but don’t genuinely advance the case.

The most important issue to be addressed at the outset is whether the desired endgame is trial or settlement. The activity in the case will be different, depending on the intended goal. Most cases settle, in which case there is no advantage to delay. An immediate phone call or letter can sometimes surprisingly end a dispute before it even gets off the ground. Where motions or discovery work are necessary to improve the settlement environment, or get the plaintiff to the table, they should still be strategic and selective. A partial deposition, for example, starting in the middle and skipping over the full chronological development of facts, may be enough to get the necessary information; it can always be completed later, if that becomes necessary. An early mediation may help shape the plaintiff’s expectations, even if it does not settle the case in the first round. Many summary judgment motions can be filed long before all of the discovery is complete.

The initial choice of strategy may need revision as the case unfolds, but without a clear focus and an intended goal at the outset, litigation will always meander, cost more and produce a less satisfactory result.

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