Litigation can be suffocating. It can smother even the largest companies. Corporations are an easy mark for someone with an axe to grind and tort lawyers looking for a quick payday.
No one can fully insulate companies from meritless lawsuits. But it is possible to take steps to minimize their exposure to groundless and abusive claims. Assisting our clients with systems that help minimize the probability of their being sued is a hallmark of our practice.With the growth of legal specialization, practitioners too often fail to take an interdisciplinary approach in the representation of clients. Lawyers specializing in corporate governance and transactions seldom have experience litigating those transactions so they often fail to see the pitfalls of poor drafting. Litigators, on the other hand, are seldom sufficiently conversant with the details of corporate governance and business transactions to fully understand the issues presented by lawsuits relating to them.
That is where we are different. We have been in-house counsel to major corporations so we understand the business pressures that result in corner cutting and, often, in lawsuits. We have negotiated business deals as corporate executives and drafted the documents related to them, so we know the give and take of commerce and are fully familiar with the law that governs those transactions. So, when we are called upon to defend our clients in litigation, we have an intimate knowledge of the law governing the claim.
The most successful lawsuits are those that are never filed.
At the same time, we have litigated a volume of cases growing out of business disputes and we have seen how destructive poor document drafting can be. We have seen, first hand, how negotiating positions have been destroyed because transactional lawyers have failed to insist that contracts contain provisions that protect their clients from unnecessary claims. That is why we are able to identify contract language that increases exposure. It is also why we are able to include protective language in our clients’ contracts that limits the probability of later dispute.
Central to our practice has been assisting our clients in the development of programs designed to prevent claims from occurring; giving them the upper hand when they do and positioning them for victory if claims ripen into lawsuits. It includes intensive review of contracts and agreements with other companies. It involves reviewing and updating corporate records and filings to ensure that all legal protective devices are in place. It means the inclusion of contract provisions that protect companies from plausible misinterpretation and closing ambiguities and loopholes through which creative litigators find the basic means of filing arguable claims and keeping them in court long after they should be dismissed.
We review internal procedures to limit employee claims and assist in the preparation of policies and manuals that protect companies from exposure to employee discontent. We review corporate documents that others think of as â€œpro formaâ€, such as bylaws, to ensure corporate autonomy and limit claims from shareholders and disputes for control.
No one can guarantee claims will not occur in modern business. But a pro-active approach to corporate governance, business management, employee relations and an intensive review of corporate transactions can limit claims from arising and provide the means for winning if they do.
JW Howard. Protecting clients before they need it.