Posted in Business Litigation, Litigation Strategies
I’ve been blogging quite a bit lately about how to bypass a trial in your business litigation matter. By building a solid case early on that can lead to a successful early settlement conference, eliminating issues through California’s ADR methods, and other effective litigation strategies, it is possible to evade the challenges of a full business trial.
That said, trial cannot always be avoided, and sometimes it shouldn’t be anyway. Some cases warrant the full litigation process, and it can be for a number of reasons. At times, the most basic facts of the case are in question and the only solution is to move forward with the full discovery process and then have your day in court. Other times, the adverse party is unwilling to settle – at least on an arrangement that seems acceptable or fair. Still, at other times, a trial before a judge and jury is the only way to seek true justice on a business investment that’s been sabotaged.
Whatever the reason may be some business issues simply need to go to court. If yours is such a case, it will be critical to your success to follow the rules of the California court room. I don’t mean the written rules. I mean the unwritten ones. These are the nuances your California business litigation attorney should train you on before you ever even think about entering a court room. Some of these items are about fundamental legal strategy. Others are just plain common sense.
Avoid Weak Trial Strategies
This probably seems obvious, but it’s easier said than done. That’s why you’ll never hear a legal professional say that you should represent yourself – or your company – in court.
One of the most common mistakes made at trial is bringing up irrelevant issues, points or facts. Nothing will annoy your judge more than wasting the court rooms’ time with issues that are nothing more than emotional outlets for you. It can also distract or confuse the jury by taking their attention away from what really matters, thereby lessening your chances of a favorable verdict. Your courtroom argument should be as simple and straight-forward as possible, focusing only on the legal issues in question, and eliminating everything else from your argument.
Additionally, your trail strategy should avoid the use of lies at all costs. This includes not answering questions directly which are asked of you on the witness stand. Again this may seem obvious, but you wouldn’t be the first to try it if you did. For one thing, lying in court is a crime (perjury) and is punishable by law. Nothing you could gain from your lie in court would be worth what’s coming to you later if you get caught. And while pleading the 5th on a question is sometimes advisable, avoiding a direct question can also backfire and cause the court to question your authenticity. You should never avoid a question on the witness stand unless it’s something that was specifically discussed with your attorney.
Finally, the witnesses that you bring to trial will be a critical component of your trial strategy. Your witnesses’ testimony may even be the deciding factor in your case, so choose them wisely. Make sure that your witnesses are just as prepared and professional as you are otherwise you’ll risk them making a mockery of your argument, rather than helping it.
Avoid Poor Preparation
Nothing looks worse than arriving at court with unkempt paperwork, missing documentation and scattered files. A judge will rarely have patience during business litigation for a party who is unprepared and inadequately organized for their own court date. Your supporting documentation, such as contracts, leases, receipts, phone or email scripts, letters and the like should all be organized according to the flow of your argument. In other words, if your key piece of evidence is an asset purchase agreement, then that asset purchase agreement should be easily located at the top of your paperwork, as opposed to being crammed in a random pocket of your briefcase where it takes you several moments to locate and then smooth out the wrinkles.
Preparation for the court room also includes meeting with your attorney extensively beforehand to go through the questions you may be asked on the witness stand, learn key legal terms related to your case, study your opponent, and prepare to counter the oppositions’ argument by being realistic about the weaknesses in your own. Being poorly prepared also tends to make the judge and jury lean more favorably towards to your opponent, so take the time to prepare and organize long before you enter the courtroom.
Especially being involved in a business litigation issue, you need to handle yourself like a true professional in a courtroom setting. Cursing, nervous twitching, inappropriate clothing, smoking cigarettes, speaking in a disrespectable tone of voice, talking out of turn or for unnecessarily long periods of time, or ignoring standard courtroom rules and procedures is a surefire way to lose favor with the judge. This type of behavior does little for your credibility with the judge. And when it comes to juries, the reality is that they have to like you in order for them to make a decision in your favor. Your professional image at trial should be carefully guarded and protected.
All this advice aside, the truth is that you and your business litigation attorney should be preparing for trial from day one, while employing strategies that will hopefully help you avoid it altogether. But trial should never be an afterthought or something that’s prepared for at the last minute. Every pleading, every deposition, every piece of discovery collected should all be designed to help you win your day in court, should you get it.
Success in business litigation requires experience, diligence, and respect in the legal community. To learn more schedule a consultation with the Law Offices of Tony T. Liu today.
