The Importance of Early Leverage

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Very few clients facing adverse issues are looking to spend years in litigation, ultimately spending a fortune on a “winner-take-all” trial. Most clients want to use early leverage to achieve an acceptable end game. Unfortunately, many, but not all, litigators are stuck on a “paint-by-numbers” litigation conveyor belt. They move from pleadings to early motions, to discovery, to dispositive motions, to pre-trial, to mediation and then the trial, only learning their case as they move through these levels of the litigation.

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Our firm has found that it is highly advantageous to take the time up front to learn the case, as though we were going to trial before we even complete the first stage of the litigation, or at least as close to that level as possible. This allows us to see the case in full, and all of its strengths and weaknesses.

We often then invite the other side over for a PowerPoint presentation of the case. In this presentation we include hard evidence, case law, names of witnesses, and most importantly, we anticipate and address their arguments. We encourage the client to use this opportunity to put forth a reasonable, but firm demand.

This approach has yielded many early settlements, and while the client may spend more up front – if the case does not settle – the bills moving forward are less than they would be otherwise as the firm is not playing catch up on the facts and law. We are at that point nearly already fully up to speed.

To leverage an adversary, you need to study their company, their list of evident concerns, their culture and their financial status. To leverage your adversary, you need to know their weaknesses and how to exploit them. For example, our firm uses several different websites, such as www.glassdoor.com, to learn about our adversaries. On www.glassdoor.com, employees anonymously provide input and quite confidential information about their employers.

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In one case, we learned that the company was in growth mode but thin on discretionary cash. We used this to drive home that a litigation would eat up their discretionary cash. This information proved to be highly useful.

The bottom line is that clients want highly leveraged, quick “wins.” Get off the conveyor belt of litigation and look for the leverage points that will lead to a quick and favorable settlement.

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