Jottings By An Employer's Lawyer

Thursday, February 21, 2013

A Genius Is Someone Who Thinks Like Me - An Approach to Litigation

I was pleased to see this dialogue between Darryl R. Marsch, the General Counsel of Krispy Kreme, and the Daily Reporter in today's Corporate Counsel:
DR: Your background is in litigation. What is your overall philosophy on litigation?

DM: Prepare to try cases. You will get the best outcomes if you are prepared to litigate, appeal, and appeal again. That best outcome might be a settlement, but a settlement driven by the will to litigate is going to be a smart, well-informed settlement. ...
That's advice I learned in my early days as a lawyer, but also advice that is easy to overlook in a world where so few cases end any other way than settlement.

I agree with you and Darryl R. Marsch that in litigation the best defense is a good offense. However, my experience, both as in house counsel and with a law firm, is that a problem arises with the principals or the client, as to be prepared to litigate requires expenditure of time and money. Money runs up pretty quickly with discovery, depositions, etc., and the pressure put upon counsel to "settle the damn thing" becomes extreme the more the preparation drags on. It is important that you convince the decision makers of the perils associated with a loss, as well as the importance of thorough preparedness in litigation. It is disheartening to have the rug pulled out from under you in settlements dictated by a "pragmatic" approach, particularly when your preparations to date point to a favorable result.
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