What to Expect when Facing Litigation
I often get questions from clients, friends, friends of friends and acquaintances who are facing litigation.
The common thread among them is that they just do not know what to expect.
Many of the attorneys I have worked with are excellent at educating their clients on the case and the path a litigation will take, or at least the path the attorney would like it to take. However, sometimes the attorneys do not address the most important factor - how the client is emotionally effected by the litigation.
Whether the client is a plaintiff or a defendant, litigation can be a daunting process.
Trust me, it is the attorney's job to lack emotion until such time they need to express your side of a case. This is simply good "lawyering." Their job is to be your advocate and express your case in the legal environment.
So how do I deal with those questions when asked?
Unless we are in the presence of their attorney, I make certain that they do not tell me the intimate details of any case as discussion with me outside the presence of their legal counsel are not confidential in the courts. So to not delve to deeply, I simply ask one question "how are you feeling?" It is amazing how much of the conversation simply turns to the knots in their stomach as opposed to the legal side of the litigation.
After hearing about their turmoil I general offer some advice. Here are the top three:
- I acknowledge that their emotions are real and justified. However, I further tell them that they will need to find a place that separates the emotion from the business at hand. Litigation, regardless of which side you are on, is never easy. Know that going in, feel as bad and nervous as you need to, but at some point in the process you will need to devoid yourself from the emotional aspect of the case in order to have a clear understanding of the case and your judgment.
- Be honest. No matter how much a plaintiff or a defendant want to defend their position, honesty is truly the only way to represent yourself to your attorney and to the courts. Your attorney cannot adequately represent you if they do not know everything relevant in the case - that is the good and the bad. Let the attorney do the heavy lifting in determining what is relevant and not relevant to your case.
- Be kind. At the onset of a litigation, this is often a difficult accomplishment. Although not easy, trust me, if you can get over the ebb and flow of emotion, this is probably the best trait you can achieve in the litigation process. Why? Because, you free yourself from the negative dialog. You feel better about yourself and your position in the litigation and lastly and most importantly, it will provide you with the strength to see the case for what it is. If you remain negative, this can ultimately impact clear judgment in the case. For example, by reaching a level of understanding and kindness in the case, you open yourself to the realization that perhaps neither side want their fate in the matter at hand decided by a Judge or a Jury. Having this frame of mind can lead to productive negotiation and possibly a settlement to avoid a costly trial. Being kind in your dialog whether it be self dialog or to others avoids the feeling of self justification. And let's be honest here, self justification is really worth very little as it may be set upon by false pretenses.
I realize that none of these tips are matters of the law. I am not an attorney, that's why. However, I see what people put themselves through when it comes to litigation and the process can be self destructive both mentally and physically. I have seen married couples who loved each other for years and suddenly turn to hatred and negativity to get through a divorce. Imagine if both sides came to the conclusion that although this is emotional, they understood their respective roles in the divorce. That is, it's not all one persons fault. Imagine if both sides took at least one moment to acknowledge that their soon to be Ex was a good and decent person, if that is true. If not true and perhaps physical abuse or other dynamics make this impossible, but perhaps a feeling of empathy and perhaps gratefulness of getting out of a bad relationship can be replaced with such an acknowledgment.
I know these things may sound a bit out of the realm for the litigation setting, but I have expressed these items to many who have gone through the process. I have had many who have told me that they really help them get out of the litigation with their mental and physical health intact. Others, however, have hung on to the negativity and continue the negative dialog. As such, moving on after litigation has been difficult for them.
If you are facing litigation, try to take one thing away from this article, your demeanor in the case will dictate your ability to move on from the aftermath.
David F. Zarlenga, CPA\ABV, CVA, CFE
Mr. Zarlenga is a Certified public Accountant with over two decades of experience. Mr. Zarlenga is regularly sought after for a variety of valuation engagements including those involving litigation as well as the estate and gift tax arena. He also is experienced in merger and acquisitions and fraud and forensic accounting.