Chapter § 2.02 Factors to Consider

• Jurisdiction: United States
• Publication year: 2020

§ 2.02 Factors to Consider

Litigation management involves constantly assessing risk. From a plaintiff’s attorney’s perspective, this assessment starts from the time the perspective client first contacts you to ask whether she has a case. The attorney must evaluate the facts and law and formulate an opinion on the likelihood of success at trial throughout the case. Indeed, this probability can change as discovery progresses. Plus, lawyers must constantly balance the likelihood of success against financial factors, such as the litigation expenses they will incur prosecuting the matter and the potential verdict and settlement values. In other words, a successful plaintiff’s attorney must constantly be aware of the risk of winning or losing a case and the costs of continuing to prosecute it.

Every individual or corporate client is different. Some clients are more risk averse than others. As a result, educating each client on the various risks is imperative. By constantly educating a client on the risks pursuing a matter may have, the client can make an informed decision that is based on their own personal risk tolerance. Some factors that the plaintiff’s attorney, and the plaintiff should consider include the following:

[1] Plaintiff’s Objectives, Goals, and Risks

Counsel must understand the client’s strategic objectives. For contingent plaintiffs, accurate assessment of potential monetary damages is an obvious necessity. For any plaintiff, however, the strategic objectives may vary beyond monetary results, such as: Is injunctive relief against the defendant required? Is there a business solution that will avoid the litigation costs and risks? Perhaps the plaintiff may also be satisfied with noneconomic goals, such as vindication of its rights or reputation. Identifying the litigation end goals, therefore, allows the potential plaintiff to balance these rewards against the possible risks.

Assessment of the plaintiff’s litigation risks goes far beyond the courtroom. Litigation is often a “bridge-burning” event. In some instances, the target defendant is at arm’s length, unknown to the plaintiff. In other situations, the prospective defendants may be acquaintances or business partners. Litigation may damage the relationship between the plaintiff and the defendant, destroy future personal or business dealings between the parties, or upend vendor and supplier relationships. Moreover, plaintiffs should assess the risk of counterclaims, which could expose the...