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"TO SUE OR NOT TO SUE, THAT IS THE QUESTION?

(A Corplaw7 Commentary)
by Barry J. Lipson

"That !%!&@#!%$@!$# sued me!"

"Sue the sideswiping sucker in the seersucker."
"To be or not to be a lawyer must you sue?"
All you sewer shylocks do is sue!," shrilled Sue.
CoCo Corporation has deep pockets - Sue It!"
Or is this knee jerk reaction of "sue it" just a lot of "suet," which sometimes feeds the birds, and on
occasion provides the tallow for the soap to wash things clean, but more often than not is nothing more than
extraneous hard animal fat?
Sure at times suits can generate considerable lard for the larder, and separate the fat from the lean, but how
often do they have the opposite affect, and how often are they really in the best interests of the clients? In
determining to sue or not to sue, should not the lawyer first evaluate: a) in whose best interests is the suit
really; b) will the suit reap the best results for the client; and c) is their a better way to proceed?
During my years as general counsel, corporate counsel and trade regulation counsel of major multi-national
enterprises I was called upon to make "suit" decisions on a nearly daily basis. Not only did I have to decide
which suit to wear, which suit to play, and what suited me, but I had to decide which courses of action were
vest (oops! - best) suited for the company, and which led to "causes of action" and law suits.
There were and are basically two types of suit decisions: a) should we bring suit to enforce our rights and/or
collect money; and b) how should we revise our plans and actions so as to avoid suit and/or improve our
position if we are to be sued. In neither instance should the suit decision be made lightly or without first
examining all the consequences and alternatives.
Indeed, when interviewed by former Judge Marvin R. Halbert for his Pennsylvania Law Journal-Reporter
"Off the Bench and Off the Cuff" column,1 I responded that with regard to my clients commencing suit:
If you have a cause of action which could have ramifications beyond your
lawsuit, or which could place the potential defendant in a bad light, after
preparing your case for filing, but before filing, you should seriously consider
giving such a defendant the opportunity of settling at that point.
Once you have thrown down the gauntlet of suit, your charges are a public
record, and the defendant may feel that it has no choice but to fight, if for no
other reasons than to avoid other lawsuits or to vindicate itself to its customers,
shareholders and the public. Accordingly, the possibility of suit is quite often
much more threatening that the suit itself, and therefore, a reasonable
settlement may be available then, which may not be available again, if at all,
until you are on the courthouse steps ready for trial.
In determining if suit should be brought, the attorney and client must, of course, evaluate the chances of
success and failure; the time and costs it will take to achieve the final result; the personnel that will need to be
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involve; the likelihood of appeals and likely outcome of appeals; whether any monetary recovery will
primarily benefit the client or the attorney; and, of course, the fee arrangement. In doing so one must also
consider the probability of current and future loses of business and sources of supplies and services; the effect
on business, social and personal relationships with the defendants and others associated with them; whether
there are better uses for the personnel, time and money that will be needed to be invested in this effort; the
consequences of losing; and the benefits obtainable from a professionally negotiated settlement.
Entering this equation must also be the fact that most cases settle on or before the Courthouse steps.
According to former Chief Judge Donald E. Ziegler of the U.S. District Court for the Western District of
Pennsylvania, where most civil actions are assigned to arbitration, over "60 percent of the civil actions
assigned to arbitration have settled prior to a hearing" and of the cases that went through Arbitration only "one
percent of the cases have been tried in the District Court following a demand for a trial de novo" by the losing
party in Arbitration. Should suit therefore be filed, or a suit be risked, because a prompt advantageous
settlement is anticipated?
In the same interview with Judge Halbert, I also commented with regard to client actions which could lead
to civil or criminal suits, that:
Personally, I believe there is only one basic approach. Find out if there are any
problems with what your clients plan to do, and if so, work with them to find
ways to lawfully avoid these problem areas while still accomplishing
substantially all of their goals and objectives. Early in my career, I was
shocked when I learned from a client that not all attorneys followed this
philosophy. This client had been exasperated by other attorneys telling him
only "yes" or "no" and then, if "no," requiring him to come back with alternate
plans for them to pass similar judgments on.
In pursuing this approach be careful to avoid the "sayonara" pitfall. I first encountered the reality of this
pitfall when a new assistant marketing manager brought to me for legal review his marketing program for the
next year. I advised him that the program was legally permissible, but that it appeared he was sacrificing
significant future sales for relatively minor immediate gain. He responded "I don't plan to be here in two
years."
But more on point, I again encountered this pitfall when counseling a "well seasoned" senior management
executive with regard to proposed conduct that it was clear the U.S. Justice Department and plaintiffs' counsel
would view as price fixing. After acknowledging that he understood this probability, he inquired "can you
stall them for the next 30 months?" When asked "why," he responded "I retire then."
One of the most important considerations for avoiding suit is how counsel is given and received. I
personally would want to receive counsel from someone who is knowledgeable in the area in question; who
does not just merely say "yes" or "no," but guides me so I do not blunder into the "no" path; who is not afraid
to tell me what I need to hear; and who knows that being prosecuted or sued is already a defeat for his or her
counseling. Counsel's most important task is to make certain the client really comprehends what counsel is
counseling.
These observations on proper "avoidance" counseling are based on real life horror stories observed in my
roles as government counsel, corporate counsel and private practitioner, where:
*I have been privy to situations where counsel unhelpfully "just said no!"
*I have been privy to situations where counsel counseled "yes" to calculated
risks, and then naively saw no problem with the clients freely discussing the
"calculated" parts of the risk!
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*I have been privy to situations where, while in counsel's judgment suit was
likely, counsel did not counsel a revision of the questionable conduct but, to
quote him, arrogantly counseled: "Do it, I feel confident that I can win if
you're sued," not realizing that the suit itself and the personnel, time and costs
involved, and potential bad will, would constitute the real "loss."
*But worst of all, I have been privy to the shocking real-life situation were
counsel argued to the government enforcer, to his client's detriment, that the
client, and not counsel, drafted the criminally illegal by-law, which was the
smoking gun and the lynchpin of the prosecutors case.
Ironically, in the latter instance, where counsel figuratively lynched his own client, the government actually
had in its possession a draft of this by-law in counsel's own handwriting, this draft having unknowingly been
provided to the government, in response to subpoena, by counsel's own office.

Therefore, to sue or not to sue, that is the question?

*The answer from counseling counsels YES, SUE if, and only if, all
else fails!
*The answer to government prosecutors Be alert, you'll get your best
shot if their counsels fail them or they didn't seek counsel!
*The hope of the litigator Viva la failed counsel!
Please address your comments, questions and suggestions for future Corplaw7 Commentaries Columns on marketing
and business law, and other interesting subjects to Barry J. Lipson, Esquire, at bjlipson@gmail.com .
Copyright8 1998-2012 by Barry J. Lipson

http://www.scribd.com/doc/34184004/Insights-Shared-Through-Pen-andPractice-Interview-of-Barry-J-Lipson-Esq .