Expanding the Checklist: Initial Strategic Considerations in Defense of a Lawsuit

Steven Phillips Anthony Ostlund

By Steve Phillips

You’ve received a call from your client regarding a new lawsuit that’s been filed against them. As trial lawyers, we are conditioned to focus on the nuts and bolts of evaluating a case based on analysis of the legal claims and defenses, factual development and procedural devices (e.g., to answer or move to dismiss). In fact, most trial lawyers have a checklist of legal strategy considerations and deadlines to calendar. By checking off each of those list items, you’ve got your bases covered, right? Wrong.

What checklists and deadline calendaring won’t necessarily help you with is development and implementation of a case strategy that gives thoughtful consideration to the scope of the immediate case, cost considerations, and the potential impact of the dispute on bigger picture items for the client.

A crucial first step at the outset of the defense of any lawsuit is to avoid making assumptions. Ask questions. For example, don’t assume that the client has given due consideration to whether there may be insurance coverage applicable to the claim or that insurers have been put on notice. Learn early on about potential insurance coverage, limits and exclusions and of the possibility of a protracted insurance coverage fight. Likewise, even though the client is or may appear sophisticated, ask them directly whether they have implemented a litigation hold/non-destruction process as to all potentially relevant electronic or hard copy documents. As you interview client personnel about the factual background, be very direct in asking them before concluding if there is anything they have not shared with you (e.g., because they are embarrassed or simply sticking their head in the sand) to avoid surprises during the course of discovery.

Discuss with the client whether the claim is one that might engender media scrutiny or social media commentary. If so, take steps before a “media crisis” hits to help the client lay the groundwork for an effective strategy that covers planning, monitoring and responding. Involve the client’s corporate communications team or an outside public relations firm in crafting internal employee communications, media statements and the like. While a “no comment” response may have been standard practice in the past, a more detailed response may be needed today in order to help protect the client’s reputation. Crucial to the defense of the case will also be to ensure that public statements by or on behalf of the client are consistent with your defense themes.

Another early strategic consideration is whether the case must be litigated or whether litigating the case in court makes sense. The public nature of litigation, particularly as between competitors in a commercial dispute, may be less attractive to both parties than a confidential arbitration. On the other hand, the relative informality of arbitration and the potential for limited appeal rights may not be in your client’s best interest. If proceeding in court doesn’t make sense, then make sure there are no arbitration clauses that might allow you to move to compel arbitration. If not, ask your opponent whether they will agree to arbitrate under parameters acceptable to your client.

Be thoughtful about motions to dismiss. When your defense on the merits is a hands down winner, by all means move to dismiss the complaint. Beyond that, however, avoid the trap of recommending or filing a motion to dismiss simply because you have valid grounds for one. Is the cost of the motion justifiable, particularly where it will not dispose of the whole case? What is the judge’s attitude toward motions to dismiss? If you cannot get rid of the whole case, will the motion serve to narrow the issues or serve to dramatically reduce discovery? Is it in your best interest to educate the plaintiff about gaps in their case so early on, or might it be better to wait until the close of discovery and move for summary judgment?

Good trial lawyers retained to defend a lawsuit may have a bias toward trying the case. In many instances, it makes absolute sense to do so. That said, don’t let your zeal for the courtroom trap you into losing sight of the fact that it is not your case. Embrace your role as counselor to the client. Make sure you understand how the client defines a win or loss in the context of the case, what each might mean for the client, and what the attendant financial costs and consequences are. Even if the client’s defenses are strong, discuss whether a favorable decision involving years of litigation and appeals is preferable to a negotiated resolution that could be achieved in a much shorter time frame. Thus, as part of your case assessment, discuss with the client all relevant considerations including whether early settlement efforts might make sense.

With the number of jury trials decreasing, mediation is almost a foregone conclusion in nearly all litigation. In view of this, discuss with your client early on the timing of any mediation. The trial lawyer’s default is to file an answer or engage in motion practice, conduct discovery, engage in more motion practice and then schedule a mediation. However, there are situations where the parties have meaningful information pre-discovery (or can agree to an informal exchange of key documents) such that an early mediation might be warranted. In some situations, an early mediation might save the client from having to produce damaging evidence down the road. Mediating a case early-on can also reduce defense costs and avoid the client or client personnel being tied up in time-consuming litigation. An early settlement may also allow the client to save money by settling at a lower amount than might be possible after your opponent has engaged in expensive discovery and motion practice.

In short, avoid the pitfall of being wedded to checklists and a cookie-cutter approach to defending your client’s lawsuit. Thoughtful consideration up-front to a host of considerations beyond the underlying merits of the claim will help you ensure that the ultimate resolution of the case is a “win” for your client.


A trial lawyer with the business litigation firm of Anthony Ostlund Baer & Louwagie in Minneapolis, Steve Phillips has over 25 years of experience litigating a wide variety of business, employment and financial fraud disputes, both in court and in arbitration. In addition, he regularly represents employers and employees in disputes over non-competition and non-solicitation agreements and other restrictive employment covenants. Visit www.anthonyostlund.com or email sphillips@anthonyostlund.com for more information.