In business litigation lawsuits it is a common client question that attorneys must handle.  Why aren’t you more aggressive?  You need to be a bulldog.  You need to tear my business partner to shreds.  You need to say no to everything they ask for.  You need to bury them in discovery or you need to reveal that affair he had with his secretary fourteen years ago.

For an attorney in sophisticated business litigation, being aggressive is an important part of the representation.  But it is not everything.  Clients should be more interested in whether their attorney is strategic enough.

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Do You Have A Litigation Plan?

Business lawsuits and litigation should be governed primarily by a well thought out strategic plan.  Most businessmen would insist on a detailed business plan when entering into new ventures, especially those that have the potential to cost a lot of money.  Shouldn’t business litigation, which not only costs significant amounts of money but also often exposes the company to terrible financial risk, merit the same consideration?

Partnership litigation and family lawsuits are especially emotional to the parties.  But every business lawsuit engenders animosity.  This often leads to emotional reactions instead of well reasoned business decisions.  A plan will help you and your attorney stay on track towards your goal rather than reacting to every perceived slight.

When Is Aggression Merited?

A trial attorney should be as aggressive as possible in moving the case towards some type of resolution, whether it be trial or settlement.  When the opponent refuses to produce documents or answer questions, your attorney should be pushing at every step to move the case forward.  Your attorney should be aggressive in reminding the opponent of the weaknesses in his or her case and pushing the parties towards a settlement.  These are all elements of the litigation plan and the attorney should be aggressive in pursuing the plan.

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When Is Aggression Misplaced?

The most common situation in which a client questions his attorney’s aggressiveness is usually tied to the attorney’s analysis of the client’s case.  You are hiring an attorney for his analysis and representation.  A successful business litigation attorney understands that there are both strengths and weaknesses in each case and both must be dealt with.  Oftentimes the client refuses to see the weaknesses of the case and mistakes the attorney’s analysis for lack of backbone.  While it is healthy to have a spirited discussion with your attorney about how best to position the case, do not mistake the attorney’s analysis for weakness just because it goes against your case.  If the analysis shows that you really did breach the contract, your plan may be to reach a settlement rather than spending money on litigation.

In business litigation the other most common time that a client questions his trial attorney’s aggressiveness is simply in reaction to whatever the other side is doing.    If the opponent has taken five depositions, the client wants to know why his attorney has not taken five depositions.  If the opponent has filed a demurrer challenging the complaint, the client wants to know what motions he can file.  This is another instance where the litigation plan comes in handy.  Do you need five depositions?  Is there any reason to file a motion?  With a well thought out litigation plan, you and your attorney will know what you need to accomplish your goals in the litigation.  Your plan will not be dependent on what the other side does (although there may be some adjustments as evidence is discovered or the litigation proceeds).

Aggression is a tool that your attorney should use to help you reach your goal.  Your attorney can be as aggressive as possible but if he does not know what direction to take the case, the aggression will not help you.  Aggression may be helpful in some instances but if your case is weak or you face potential liability, aggression may prevent you from reaching an acceptable settlement with your opponent.  Instead of simply asking whether your trial lawyer is aggressive enough, first stop to consider whether he is strategic enough and whether you are on your way to reaching your litigation goal.