Top 10 Tips on How to Win a Lawsuit

Let’s face it, no reasonable business leader wants to find themselves in a lawsuit. But, in certain circumstances, there are simply no other options. What is very common amongst many business leaders, is to underestimate the expense, hassle and emotional drain. Furthermore, what is probably the hardest issue to explain, is that even if all the facts and the law is on your side, “winning” is never certain. Furthermore, it begs the question, “What does winning really mean?” After all, if you’ve spent $100,000 suing someone for $50,000, even if the court decides in your favor, is it really a win?

If there are no other options to resolving a dispute other than a lawsuit, we’ve prepared these Top 10 Tips on how to win a lawsuit. Take these to heart, but remember that every dispute, business and situation is different.

1. Documentation, Documentation, Documentation

It is almost always the case that the prevailing party is the one that best documented its position prior to a dispute developing. This is the single greatest predictor of the “winner” of the dispute. In fact, having proper documentation available prior to the dispute can overcome almost all of the remaining tip below. The implication of this fact is that you must create and maintain documents reflecting the details of every action that may result in a dispute later. Of course, meticulous documentation of everything can be cumbersome and others may find it annoying, concerning, comical, or worse. Just know, you are protecting yourself every time you document things.

2. Being a Reasonable Person

Being a reasonable person is not always an easy thing to control. But, striving to be reasonable, both before a dispute and after it has erupted, is essential to prevail. This general rule will be reflected more specifically in other concepts below. It is nonetheless important to consider your reasonableness at all stages. “Bouncing” ideas off friends, colleagues and/or your attorney can often reveal whether you are compliant with the ideal, or not. Furthermore, there are strategic reasons to potentially be willing to compromise or even willing to lose a battle or two, in favor of the greater war.

3. Consistency

In your conversations, e-mails, texts, and other documents, having a consistent position is essential should a dispute later arise. Taking different positions as they suit your needs, even about seemingly inconsequential details, can be a significant detriment to the later assessment of your truthfulness. To the extent you are able, be consistent, even if maintaining that consistency is detrimental to position. So long as you still have a valid position (below), you will be well served by doing so.

4. Having a Valid Position

Of course, at some point a lawsuit turns on the merits of the dispute. If your litigation starting position is not viable, you are exceedingly likely to lose. As you have probably heard throughout your life, it is important to pick your battles. See #2, Being a Reasonable Person above. While we lawyers are happy to accept your money, you would be wise to listen to the professionals you hire, and back off on untenable positions.

5. Not Exaggerating Damages

Even valid claims can be severely eroded by taking an overly aggressive stance regarding the damages caused by the other party(ies) offending behavior. Juries and judges do not react well to ridiculous and disproportionate damage claims. Basically, trying to make a mountain out of a molehill may prevent you from even recovering for the molehill.

6. Preparation

Even well-trained lawyers fail at times, so it should come as no surprise that even meritorious lawsuits suffer the same issues. Almost always, the root of the problem can be found in a lack of preparation by the litigants and/or their attorneys. Hiring the right counsel can alleviate this risk, as can your own diligence in making sure that lawyer or legal team is adequately informed and reminded of salient issues.

7. Pre-Trial Motions

Many lawsuits can be resolved favorably prior to a trial with proper pre-trial motion practice by an attorney or litigant. And, if nothing else, this practice can narrow issues and hone the case for trial. Not every case requires pre-trial motions as part of the lawsuit, but it is exceedingly rare that it would not be beneficial.

You should also interpret this to mean, “only a fool represents him or herself.” Only licensed attorneys have the training and experience to know all the arcane civil procedures and criminal procedures of the US Jurisprudence system. If you try to represent yourself, especially against a party that is represented by counsel, you are in for a very frustrating experience. You could very-well lose your case, without even going to trial. If you do lose your case, you may be barred from trying again.

8. Knowing Each Witness’ Testimony

At trial, one of the best things to have on your side is knowing what the trial will “look like” ahead of time. Lawyers often say that the best practice is to never ask a question when you are unsure of the answer. One of the tools often at the litigant’s disposal is taking depositions of, and/or interviewing, all of the witnesses prior to the trial. It can be costly at times, but taking advantage of this process aids in ultimately prevailing at the end. Combined with the following two factors, you are on the best footing for success.

9. Obtaining Corroborating Documents

Oftentimes lawsuits boil down to “he said / she said” disputes. These disputes do not easily lend themselves to proving a party’s position absolutely through evidence. However, even in these situations, there are steps that can be taken to enhance the likelihood of the judge or jury taking your “she said” over the other side’s “he said”. In addition to adhering to many of the principles above, uncovering and obtaining documents that match your version, even to a small degree, can shift the weight to your side. If both “stories” are equally plausible, the one corroborated with documents, even if only slightly so, can often carry the day.

10. Examining Every Piece of Evidence

Finally, it is extremely important that the litigant or her attorney examine every piece of potential evidence and analyze how it fits the theory they are advancing. If the evidence is supportive, obviously you will want to highlight it. If, however, the evidence is damaging, it is important to have a plan for neutralizing its impact as much as possible. It is impossible to do these things, if you’re unprepared and unaware of what all of the evidence represents.

In Summary

Obviously, no blog article can provide a complete picture of what it will take to win every lawsuit. But, hopefully, you are armed with some concepts to keep you focused on the correct items. And, if you learned nothing else, make sure you document everything. You owe it to yourself, even if you’re not currently facing a lawsuit, to put the right processes and systems in place in your business, to create business records that can be referred to if and when you ever do face a lawsuit. Even mundane tasks, such as taking possession of something, should be signed for and documented as a recurring business record.

As they say in the legal business, if you didn’t document it, it never happened.

Business Law Southwest, LLC (BLSW). Business Law That Makes Business Sense. A Slingshot company.

About dkochersberger:

Don Kochersberger is an attorney and partner of Slingshot, LLC, the parent company of Business Law Southwest, LLC, and Law 4 Small Business, P.C. He is licensed to practice law in New Mexico and Texas, and leads the firm's litigation practice.

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