28 Rules of Business Litigation

QLA Castle SeminarFrom Bill Gates at the end of the last century to John D. Rockefeller at the end of the previous century; from Rick Scott, founder of Columbia Health Care; to AT&T; from Richard Branson and British Airlines to Dan Peña and The Financial Times; from government, banking, insurance and every other facet of world commerce – to grow geometrically and stay around, and avoid being ground into a powder by greedy lawyers and the people who will try to cheat you – litigation must be prudently used and mastered – you must lose your fear of litigation and master the legal system. It exists for honest people, like you, not just the bad and the greedy.

I will, as briefly as I can, memorialize the salient points of using litigation as a business tool. Now before I start, I want it on the record, some 50% of my 30-year track record of litigation has had nothing to do with winning money, i.e., many lawsuits have been over principle, some were to right a heinous wrong such as slanderous remarks made about me; some were to simply protect me or a company that was wrongfully sued; and some were because an entity just needed a good comeuppance and nobody else would carry the flag into battle. I, like Don Quixote, have fought many a windmill.

Our judicial system works, but we grow up being afraid of it. It's way out of our comfort zone so we preclude ourselves from benefitting from it.  Normally the cost associated with lawyers and expert witnesses keeps us from using it. In fact, I'm currently embroiled in litigation where the ancillary players to the litigation have rights which are being severely violated. A large group of people could bring great pressure to bear, but they're afraid because of previous bad experiences. Sometimes people lose faith in their fellow citizens who will sit on a jury and are afraid to go to court to tell their story. They could get what they deserve but aren't pursuing their best interests.  No one should sue anyone unjustly, but you should not tolerate being sued unjustly either. Sometimes, you or your company will have to sue to protect your rights, or defend yourself all the way through trial.

Many times lawyers will sue you hoping you’ll “settle” and pay them large sums of money because you are afraid of going to trial. The more successful you are, the more you need to remember that the courtroom exists to protect you and your company. Naturally you have to defer to your lawyer, but I have found 28 Rules of Litigation to be rock solid guides for me.

28 Rules of Business Litigation:

  1. Choose your Battles: No one should sue over every wrong.
  2. Choose the Venue
  3. Be the Plaintiff: if you can’t be the Plaintiff, act like one—be the person getting ready for trial not being afraid of trial
  4. Have the Best Representation
  5. Listen to Your heart
  6. Don't listen to your sick stomach when you're out of your comfort zone.
  7. Don't listen to friends, relatives, et al
  8. Listen to experienced litigants – like me!
  9. Generally speaking, don't worry about the cost (THIS IS VERY HARD!). Just be sure you’re getting “bang for your buck” and not a lot of internal memos.
  10. Big lawsuits are better than small ones
  11. Elect jury trials, as opposed to a judge only: don’t be afraid to trust your fellow citizens.
  12. Preparation(yours) is key – KNOW THE FACTS
  13. Practice depositions and trials
  14. If you are thinking of a better strategy, get a new lawyer (not true in my case)
  16. Don't be intimidated by the process
  17. Use mock trials (pretend trials you do in front of a hired jury)
  18. Dress simple and conservatively in court – no jewelry except a wedding band, white shirt, plain tie and dark suit for men and the equivalent for women; short groomed hair for men. Everyone should show the proper respect for the judge and jury.
  19. Don't lose your temper in court – it's okay to cry if it's for real.
  20. Have your spouse in the front row every day. Children also if possible. Other family members in second row is okay. Your family needs to know what you’re going through. And there is nothing wrong with showing that you are a respected member of the community.
  21. No quotes to the press other than "We believe in our case and that is why we went to court". Your words can easily be distorted by a reporter in a hurry.
  22. When you break for lunch or recess, remember never talk in public about the case – you never know who might overhear.
  23. When you find a legal team that wins, STAY WITH THEM
  24. ALWAYS TELL THE TRUTH, No matter what. The truth will set you free!
  25. During videotaped depositions and in court, look at the camera.  In court, look at the jury. Make eye contact.
  26. When testifying in a deposition or trial, if you don't know the answer, say you don't know the answer. Don’t guess.
  27. Keep in touch with your lawyers: ask them what’s going on each month at least.  Don’t abandon your case to them and be sure you understand what they are doing.
  28. Don’t allow lawyers to shift in and out of the case: you want one team that learns, not new lawyers constantly coming “up to speed.”

Like any other project management, litigation must be managed. That means you need to stay involved. Unfortunately, like speech-giving, you become a great litigant by going through a learning curve. I don't mean you have to get involved in losing efforts (like making bad speeches so after some time you make good speeches) to get in a position to win in court. Large law firms and experienced lawyers will allow you to get ahead of the learning curve. The Quantum Leap methodology talks ad nauseam about following your dreams. Life without dreams is like a bird with a broken wing – it can't fly. I wrote this newsletter because sometimes you'll need litigation to follow your dream. Go out and kick some butt if you have to, and don't let conventional wisdom keep you from achieving your dream. Conventional wisdom says Don't Litigate. All high-performance people and the great organizations of the last one hundred years did the opposite when they were in the right, and they still do litigate, as I write this letter.

Don't litigate frivolously – but don't be afraid to protect what is right either.

Learn more about Dan Pena’s Quantum Leap methodology through his QLA Training Programs and his bestselling book, “Your First 100 million”.