Dispute resolution management requires realism and maturity.

People, and their lawyers who think that they can prevail despite the facts, despite the law, and that all they have to do is tell the story a certain way, usually fail. Sometimes they get away with murder, but it is very rare. 

Justice usually works the way the justice system is intended to work. And that is even more reliable in business disputes where the burden of proof is simply that your side of the case is more appealing that that of the opponent.

More appealing in this context is not just a sympathy contest. More appealing really means that what you are telling the judge, jury or arbitrators is corroborated by extrinsic evidence that was created when there was no dispute, usually in the normal course of business -- what you honestly wrote about what was happening at the time it was actually happening.

True, there are companies that have such a bad reputation that even the truth won't help them, and it is a delight to sue them in their own home towns where everyone knows them and their prospect of picking an unbiased jury is slim.

But that usually isn't the case. Nor is it usually the case that 'home cooking' spoils the prospects for the correct result. Sometimes that happens. Usually it does not.

Where does that leave us? It usually leaves us with a level playing field in which the correct result is the most likely result.

The purpose of this article is to suggest that it is probably not going to be possible to change that by concocting fanciful stories contrary to the true facts.

On the criminal side, executives can rob a company and its shareholders and employees blind and get away with 'I did nothing wrong!' or, if they are 'society criminals', a light sentence in a country club prison.

On the civil side it is a different story.

One critical reason is the difference in the burden of proof.

Another critical reason is that on the civil side they are confronted by a better class of opposing counsel -- one who probably can expect compensation only if he wins -- an arena in which razor sharp cross examination is the rule, not the exception.

Arrogant executives to whom everyone has always been afraid to tell the unvarnished truth without polishing it to reflect positively upon their ego often get their comeuppance because they can't imagine anyone having the unmitigated gall to challenge their veracity and shove their own paperwork up their ass in a public forum.

But, as they learn too late (and for which they blame their lawyers, not themselves), shoving your corporate records up your ass in broad daylight in front of a crowd of people is what a good trial lawyer does for a living.

In over fifty years of trying business cases, I have so often seen disputes that should have been resolved reasonably and properly long before trial, go to trial because someone who did something wrong, mistakenly or intentionally, was insisting that the facts be found and the result be rendered in his favor no matter what.

And since that kind of person will pay anything to 'have his way', he is fair game for any lawyer who will pretend to agree with him for the purpose of generating a big fee.

Later, when everything has come a cropper, the lawyer will simply say that the judge ruled incorrectly and we should appeal (also stupid in almost every instance); the witnesses against us were lying; the jury was crooked; opposing counsel rigged the result; and any number of other stupid excuses. Then, of course, the fractured executive will go find another lawyer and tell him to sue the first lawyer for malpractice. And the cycle may go on and on. It just depends on the degree to which ego rules over intellect.

I have my own way to evaluate a case and to prepare a witness.

I am absolutely brutal on my own side of the case. If it can pass my sniff test, it will probably pass that of any judge, jury or arbitrator. And if it can't pass my sniff test, I tell the client about my concerns.

The client can then consider my advice and seek a reasonable resolution, or look elsewhere for less challenging counsel.

In my experience, if you are forthright about the situation early on, and have not called everyone on the other side a no good son of a bitch, rational resolutions are readily available and, in the long run, much less costly.

 

Tamerlane group's purpose is to prevent you from shooting yourself in the foot when you see a bad event threaten to develop. Our focused expertise in crisis management can prevent these situations from developing if we are called before someone makes self-humiliating public statements/files absurd lawsuits.

(This is Part 1 of 6 on Franchise Trials.  Here is Part 2)

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