What to do if threatened with litigation - Ahwatukee Foothills News: Money

default avatar
Welcome to the site! Login or Signup below.
Logout|My Dashboard

What to do if threatened with litigation

Font Size:
Default font size
Larger font size

Related Stories

Posted: Thursday, June 19, 2014 5:45 am

I have been a business, real estate and employment litigation attorney in Arizona for over 27 years. Based on my extensive trial experience, I can tell you that it is almost always a poor idea to ignore a threat of litigation or demand for payment. I am not suggesting that you always need to consult with an attorney. In fact, if that matter in dispute is not important it will not set a precedent that may hurt you going forward or involves an insignificant amount of money, you may not need to consult with an attorney. Regardless of whether or not you speak with an attorney you should quickly thoroughly analyze the strengths and weaknesses of your position as well as the potential damages and counterclaims that may exist. My view is typically that you should always consider asserting a counterclaim since “the best defense is a good offense.”

People understandably do not want to spend money consulting with an attorney unless it is absolutely necessary. I would suggest that a short initial consultation with an attorney may save you a considerable amount of money and headaches going forward. During an initial meeting with your attorney you can discuss, among other things:

1. How to avoid creating bad evidence that will later hurt you in court proceedings.

2. The law the judge or jury will use in deciding your case.

3. Who the key witnesses are and what the key evidence will be.

4. The risks and potential damages.

5. Your potential counterclaim(s).

6. The cost and length of time involved if the matter is not settled.

7. The collectability of any award you may obtain against your opponent.

8. Potential claims against individuals as opposed to corporate entities since claims against individuals provide considerable leverage.

One thing that you should do early on is get your opponent to thoroughly state his position in writing. It is a good idea to get your opponent’s position in writing before he has an opportunity to consult with an attorney who will be much more careful in crafting a ghost-written letter for his client. A lot of times your opponent will make reckless admissions or statements in a position statement prepared before they consult with an attorney.

After you get your opponent to state their position in writing — hopefully getting helpful concessions — you may want to consider interviewing key employees and witnesses and getting written statements from them. You should also consider tape-recording telephone conversations with your Arizona-based opponent recognizing, of course, that you may be creating both good and bad evidence by doing so.

After you have thoroughly analyzed the issues, potential damages and cost of litigation you should consider reaching a resolution before you spend a lot of money on the dispute. If you decide to make some type of settlement proposal you should put yourself in a position to deal directly with the decision-maker of your opponent if possible. Also, you should try to make your proposal before your opponent files a lawsuit since a lot of times after a lawsuit has been filed, the opposing party is not in a mind set to discuss settlement because, for a short period of time, they believe they have you on the ropes and will view any settlement proposal made after the lawsuit has been filed as a sign of weakness on your part. If you make a written offer to settle a contract dispute and that offer is rejected, and thereafter at trial your opponent is awarded less then you previously offered to settle the case for, then your opponent will have to pay your attorneys’ fees and costs. For this reason, it is often a good strategy to make a written settlement offer early on in contract disputes.

You should never ignore a threat of litigation. Ignoring the threat and filing the demand letter you received threatening litigation in the “worry drawer” in your desk will almost always result in you spending a lot more time, energy and money than if you had followed some of the steps outlined in this article.

• Brian Foster is a 20-year Ahwatukee resident and senior partner at Snell & Wilmer L.L.P. in Phoenix. Reach him at (602) 382-6242 or bfoster@swlaw.com.

More about

More about

More about

  • Discuss

Uplifting Movie Recommendation List

Here is the complete list of film recommendations made by various writers at RogerEbert.com. The list was inspired by an e-mail from Susan Wlo…

Published: July 29, 2016 - 3:40 pm @ http://www.rogerebert.com/chazs-blog/movie-recomme…

Ariz. police release video of Navajo woman before cop killed her

Arizona police released body camera footage of a Navajo woman approaching an officer with scissors before he shot her five times and killed he…

Published: July 29, 2016 - 3:38 pm @ http://www.nydailynews.com/news/national/ariz-poli…

Skydiver to jump from plane without a parachute on live TV

He’s made 18,000 parachute jumps, helped train some of the world’s most elite skydivers, done some of the stunts for Ironman 3. But the plunge…

Published: July 29, 2016 - 3:38 pm @ https://www.theguardian.com/us-news/2016/jul/28/sk…

AZ telemarketer smacked with $110K judgment

PHOENIX (KPHO/KTVK) - The Arizona Attorney General's Office recent obtained a $110,000 judgment against and Arizona telemarketer it accused of…

Published: July 29, 2016 - 3:08 pm @ http://www.azfamily.com/story/32575437/az-telemark…

Hearst purchases community newspapers across Houston’s suburbs

The Houston Chronicle's parent company has purchased two dozen community newspapers across the metro area, extending its reach deeper into the…

Published: July 29, 2016 - 3:10 pm @ http://www.chron.com/business/article/Hearst-purch…

How to Qualify for Medical Marijuana in Arizona

On November 2, 2010, Proposition 203, also known as the Arizona Medical Marijuana Act, which allows AZ residents with specific medical conditi…

Published: July 29, 2016 - 2:44 pm @ https://www.greenrushdaily.com/2016/07/29/qualify-…

Geoff Stults Jumps Into ‘Granite Mountain’; Martha Kelly Joins ‘Spider-Man: Homecoming’

Film Fox Geoff Stults has joined the cast of Joseph Kosinski’s Granite Mountain, the true tale of the elite Granite Mountain Hotshots firefigh…

Published: July 29, 2016 - 2:40 pm @ http://deadline.com/2016/07/geoff-stults-granite-m…

Arizona Cardinals Training Camp Fan Guide: 7 things you need to know

PHOENIX - The Bird Gang is ready to hit the field. Larry Fitzgerald, Carson Palmer and Tyrann Mathieu will take to the turf at University of P…

Published: July 29, 2016 - 2:40 pm @ http://www.abc15.com/entertainment/events/arizona-…

Phoenix Zoo welcomes squirrel monkey baby

PHOENIX - Say hello to Tuvok, the newest addition to the Phoenix Zoo family. Born on July 15, Tuvok (yes, that's a Star Trek reference) is the…

Published: July 29, 2016 - 2:40 pm @ http://www.12news.com/news/local/valley/phoenix-zo…

Arizona League Of Women Voters Reflects On Clinton Nomination As ‘Historic’ Moment

Published: Thursday, July 28, 2016 - 3:08pmUpdated: Friday, July 29, 2016 - 10:53am downloadEight years ago, Hillary Clinton famously said her…

Published: July 29, 2016 - 2:15 pm @ http://theshow.kjzz.org/content/342340/arizona-lea…


ahwatukee.com on Facebook


ahwatukee.com on Twitter


Subscribe to ahwatukee.com via RSS

RSS Feeds


Most Popular

Online poll