Litigation strategy is the overall procedure by which a lawyer while defending a lawsuit intends to integrate everything with probable events and conclusions to achieve the desired outcome of his client. The strategic objective may be the final ruling or the desired damages or sentence that can be awarded in the case. It is important for a lawyer to have a litigation strategy as it will assure the client and gain his confidence, making him believe that he chose the right person to defend him. To feel completely confident, a lawyer must include his own litigation strategies that he has developed over time by experience or learning from others. Strategic litigation can have a lasting impact on the image of a lawyer.
Important Litigation Strategies
Whether a lawyer represents a plaintiff or a defendant in a lawsuit, a well-planned litigation strategy that is made in a way to achieve the client’s objectives should guide him in the preparation and presentation of the case. A strategy should be prepared at the right time, like in case of a plaintiff, litigation strategy should be developed before suit is filed and in case of a defendant, litigation strategy should be developed before filing the written statement or the response to the plaint.
Following are some important litigation strategies that a lawyer must learn:
- Knowledge of Procedural laws– It is a must for a lawyer to have knowledge of all procedural laws before entering litigation. Many lawyers bluntly engage in litigation without a proper understanding of basic laws, which does not help. Failure to follow the required procedure of court or ignorance of procedures often leads to the judge awarding excess costs against the lawyer's clients. Every good litigation strategy begins with and develops over the time by knowing how, when, where, and why certain things are done, and procedures followed. Judges in courts have little to no patience with lawyers who do not know the rules of court, which then shows in the judgment pronounced.
- Communication Skills– Communication skills are very crucial in the legal profession. A lawyer might have researched well for his case, but if he is not able to present it properly before the judge, then the preparation is simply a waste of time. Litigation strategy should include proper communication of facts and evidence to the judge and the opposite party.
- Maximizing the chance of favorable outcome– The ultimate objective of the litigation process is to win, which is defined by the client. While preparing to win, a lawyer is more likely to be in a position to achieve a desired settlement for the client for better client satisfaction. The litigation strategy should aim at achieving the maximum possible punishment or compensation amount depending on the case.
- Be Prepared– It is a great litigation strategy to be prepared with every possible angle of the case. The lack of planning could leave a lawyer with an absence of options to address the immediate concerns. Many disputes can be easily avoided if the lawyer had planned for a particular way the case could proceed. It is not easy to predict the next move of the opposite counsel, so it is best to be prepared.
- Training of Witnesses- A large part of the final judgment depends on the testimony of the witnesses. It is a great litigation strategy to train the witnesses properly so that they do not sabotage in any way or become hostile, as even the slightest of error can change the outcome of the case.
- Jurisdiction and Judicial Insight– If there is a possibility of the jurisdiction in two courts, then the lawyer should strategically decide which court to proceed with for the case. Similarly, the lawyer should also have an insight of the judge who will be hearing the case; it will help in knowing how the judge has ruled before in similar cases.
- Research on opposing counsel– Developing a litigation strategy includes research of the opposite counsel as well. It will give an idea of the techniques used by them and therefore preparing for the defense accordingly.
- Flexibility– Since a litigation strategy is developed early in the case, it is bound to change. The strategy developed should be flexible enough to change with new evidence, witnesses, and changes in the client’s situation. The strategy should be checked and updated frequently to ensure that the client’s interests and objectives are most important.
Litigation is an art that very few lawyers understand. The best litigation strategies come with experience because every case has its own different facts, and it is the job of the lawyer to shape all strategies according to the case at hand. Failure in making a strategy beforehand or making a one whenever needed in the course of proceedings will lead to missing of opportunities in achieving the client’s objectives. Therefore, all the decisions regarding a case should be guided by strategic considerations.