Lessons for corporations involved in litigation
At CSI, we work with a wide range of businesses across nearly every industry. And there are patterns we see again and again. In this blog, we highlight some of the most common mistakes we see corporations making in how they manage their litigation and talk about how they can better prepare when confronted with litigation.
In Part 1, Dr. Mary Noffsinger discusses the two biggest mistakes she sees corporations making in their litigation.
In Part 2, Bill Kanasky, Ph.D. talks about the most important thing that corporations should do differently when it comes to their litigation defense.
In Part 3 of this series, Dr. Bill Kanasky elaborates on what being proactive on the defense side looks like.
In the final part of this series, Dr. Bill Kanasky highlights the one thing companies involved in litigation should know.
What are the two biggest mistakes corporations make in their litigation?
Two of the biggest mistakes I see companies making in handling their cases is, number one, thinking about the ultimate decision makers too late and, number two, not preparing witnesses for deposition. What I mean by thinking about decision makers too late is really, if the case is going to end up in the hands of a jury, the jury should be present in every element of the life cycle of a case. The jurors should be in the room, so to speak, even during a deposition. The jurors should be an element of discovery in every aspect.
What is the biggest mistake you see corporations making in handling their litigation?
The biggest mistake I see corporations and the insurance defense industry making in litigation is being reactive to the plaintiff's bar. They wait, wait, wait until something bad happens. Then they want to go in and try to fix it, and that doesn't work in any area of life. If you wait for something terrible to happen, you can't really undo that. And so the number one way to avoid that is being proactive in litigation, being aggressive very early, rather than letting the plaintiff dictate the litigation. The defense can dictate it by being proactive and not waiting around for something bad to happen.
What does being proactive on the defense side look like?
Being proactive on the defense side means aggressively, aggressively prepping and training witnesses for depositions. Depositions control the rest of the litigation. Secondly, doing that jury research, whether it be a focus group model or a mock trial model, figure out where are the problems in your case, because oftentimes they're not where you think they are. Also get that damages assessment early. What type of vulnerability are we looking at? Having those answers allows the trial attorney and the client to make very, very wise decisions going forward.
What is the one thing that companies involved in litigation should know?
I think the number one thing that companies involved in litigation should know is that being proactive is a lot safer and a lot cheaper than being reactive. And that's really been the knock on the insurance defense industry and the corporate defense industry and how the reptile attorneys are taking advantage of that system is they know companies don't want to spend money, they want to save money. Well, that's the problem, that's the reactive approach. When your adversaries are being proactive and you're being reactive, that is going to be a problem both strategically and economically down the road in the litigation. However, if you throw the first punch and you're the one that's proactive, it can put your adversary in reactive mode, and that's how you get much better outcomes in litigation is being proactive.
Juror Confirmation Bias