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Communication is the Key to Managing Litigation

Communication is essential to a good relationship between an attorney and client in litigation. One thing we don’t ever want to hear from a client is that she went into a meeting and was asked about the status of a lawsuit and didn’t know what to tell her directors or partners. Our philosophy is that clients should always know where their litigation stands.

That doesn’t necessarily mean daily phone calls — more is not always better. While some business leaders want to know about everything that happens in their case, others just want us to hit the high points. They’re busy people running a business, and they tell us not to bother them with anything except important developments.

Both styles work, and it’s important for the lawyer and client to establish right at the beginning what kind of communications process they are going to use.

Set expectations

From the outset, we want a client to have clear goals for the litigation. Regardless of how often a lawyer and client communicate, every conversation about the progress of the case should be in the context of achieving the client’s goals. Those goals can range from containing costs, achieving a settlement in a certain range or a win at trial. 

Goals almost always change in the course of litigation. The results of discovery, success or failure with motions, and, most certainly costs, may strengthen one side’s position as litigation progresses, and we like to periodically discuss with clients whether their initial expectations are supported by developments in the case. Sometimes, a client’s position improves, and what started out as an attempt to position a client for a reasonable settlement may now suggest the opportunity for a complete win. Of course, litigation can go the other way, too, prompting a client to narrow expectations. Either way, good communication ensures that clients know their position as litigation progresses. 

Although we’ve seen lawyers resist clients becoming too involved in a case, we like for clients to feel like they’re welcome to get into the details if they have the time and inclination to do so. We’ve often had clients attend depositions as observers. When a client sees the performance of a potential trial witness in a deposition, it gives him a clear idea of the strength of the case and how it might play before a jury. 

Be transparent about costs

Costs are a tough topic for two reasons. One, no business enjoys paying legal bills, and two, litigation costs are not easily predicted. 

We often prepare litigation budgets for clients, and we’re careful to avoid either underestimating or overestimating costs. Instead, we give clients a range of costs, and we explain how discovery or other developments that can’t be anticipated may cause us to end up on either the low or high end of the range. For instance, we may know how many people we want to depose at the outset of a case, but we don’t know how many witnesses the other side will depose. The outcome of a motion to limit discovery can have a huge impact on costs, but it’s another one of those factors that can’t be predicted.  

Again, it comes down to communication. We update clients at regular intervals on how their money is being spent, and explain both the legal and financial implications of adjustments to strategy.

Every case is different, but clients should use this simple yardstick to measure whether they have the right level of communication with their lawyer: if a board member or investor asks you “what’s the status of that lawsuit,” you should be able to provide an answer.

C. Pierce Campbell is a shareholder at Turner Padget in Florence, S.C., where he serves as practice group leader for the firm's Business Litigation Practice Group. His practice focuses on business and commercial litigation, as well as probate litigation, and his clients range from small partnerships to large corporations. He may be reached at (843) 656-4429 or by email at pcampbell@turnerpadget.com.

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