A guide to managing high-stakes litigation
Commercial litigation is often a significant commitment, but understanding the process and maintaining business continuity can help to minimise the inevitable disruption.
By Nicholas Witherow
P&B Law Partner Nicholas Witherow is a senior dispute resolution lawyer and head of our Litigation section. He has significant experience in all aspects of commercial litigation, including high-stakes litigation and multi-party, complex planning and environmental disputes.
What defines high-stakes litigation? There are a range of circumstances, but it’s most common when:
- There’s significant money involved
- The dispute threatens the organisation's existence or ability to function in the short to medium term
- The result will impact the organisation or legal precedent.
Often, it’s a combination of these things, and it can be all-consuming. This guide will help you understand what's required and what to expect.
What risks are involved in high-stakes litigation?
Common risks of high-stakes litigation include:
- Uncertainties or weaknesses affecting the strength of your case
- The financial impact, including legal costs, expert witnesses, and business disruption
- Counter-claims from opposing parties
- The effect of protracted litigation on your organisation
- The time required of key business personnel
- The consequences of an unfavourable outcome, including reputational damage.
How does risk management support high-stakes litigation?
Risk assessment and management are foundational to high-stakes litigation. They’re critical to ensure a smoother litigation experience for our clients.
After identifying and analysing the risks, a risk management approach may include:- Prioritising and categorising the risks
- Factoring the risks into important company decisions and strategic planning
- Communication with shareholders and other stakeholders
- Considering operational requirements and other responsibilities
- Documenting decision-making processes
- Analysing the costs involved in litigation versus best available alternative outcomes, and any mitigation measures
- Seeking advice about legal and regulatory obligations
- Establishing systems to identify, assess, manage and report risks
- Investigating litigation insurance.
It’s essential to consider the internal resources needed for ongoing risk management in the context of the litigation’s financial impact.
How do I choose my legal team?
Choosing your legal team can be one of the most overwhelming prospects in high-stakes litigation. However, it all starts with a lawyer (or law firm) who suits your needs. This critical decision is often based on your relationship with the lawyer in charge, who will work with you to establish the rest of the team, for example, other lawyers, paralegals, barristers (counsel) and expert witnesses.
To help you decide on a lawyer or law firm, you may consider asking such questions as:
- How much experience does the lawyer or firm have in commercial litigation?
- Can they call on more resources if necessary?
- Does the lawyer or firm understand my business and industry?
- Does the lawyer or firm have the right negotiation skills and litigation strategies?
- Can they communicate in plain language so I can quickly understand the information and make decisions?
- Are they enthusiastic about taking on the litigation, and do they have the capacity to meet my expectations?
- Do they use artificial intelligence to either reduce costs or maximise the impact of my legal spend?
What can I expect from the client-lawyer relationship?
The most crucial part of any client-lawyer relationship is clear communication.
Early in the litigation, a priority should be to establish lines of reporting for precise instructions. How this works depends on complexity and who’s involved, and it may extend to shareholders, media, industry experts, and other stakeholders.
Understanding your objectives is a key part of the litigation process, and it’s closely related to clear communication. Clarifying your objectives should also be a priority.
We have a duty to give you clear and timely advice so you can understand the issues and make informed decisions. We’ll identify and explore viable alternatives to litigation with you.
What's involved in developing a litigation strategy?
Developing a litigation strategy is a key step to achieving your objectives. It may include:
- Identifying a range of possible outcomes and pathways available for achieving them
- Considering whether the other party can pay a judgment amount, as well as legal costs
- Understanding whether an objective is time-sensitive and whether quicker alternatives should be explored
- Undertaking periodic cost benefit analysis of the litigation
- Establishing a decision-making framework
- Weighing up adversarial versus cooperative approaches
- Analysing each party’s bargaining power
- Adapting the strategy as circumstances change
- Managing time and cost pressures.
When should I consider alternative dispute resolution?
Alternative dispute resolution (ADR) includes mediation, negotiation and arbitration. As the litigation progresses, using ADR may give you a better, lower-risk chance of achieving your goal.
ADR is often quicker and more cost-effective than litigation, and it may also help your organisation preserve relationships with other parties.For example, mediation allows the parties to meet and negotiate with the help of an independent third party, the mediator. The parties focus on mutual benefits to reach an agreement, and the mediator guides the discussions. The ultimate resolution always remains in the hands of the parties.
Negotiation is similar in that the parties try to settle, but the lawyers usually conduct the negotiations and help with any settlement formalities.
Arbitrations are like private and confidential court hearings. The parties present arguments and evidence to an arbitrator, usually an independent dispute resolution practitioner. The arbitrator’s decision is legally binding. Arbitrations tend to happen more quickly than court hearings, so it’s often a cost and time-effective approach without the publicity risks of a public court hearing. Arbitrations are particularly useful where industry expertise may be useful in resolving the dispute.
What should I know about document management?
Effective document management is critical for complex and high-stakes litigation because the volume of documents is often significant. Your organisation will likely need internal processes for handling the documents, and your lawyers will also have electronic document management systems.
Effective document management is often a major factor in the success of our clients’ cases. We use software that helps with all aspects of document management, including efficient storage, retrieval and sharing of documents.
If your organisation needs an internal document management system, it may include:
- Establishing policies and procedures
- Categorising the documents
- Using consistent naming conventions
- Regular audits
- Training and support.
What technologies are used?
In addition to document management software, commercial litigation is usually conducted according to Court requirements for electronically filing documents and, in some cases, electronic evidence.
We also use artificial intelligence tools for research (strictly with human oversight) and interpreting data and litigation analytics.
Such technologies help reduce costs, improve efficiency, and improve client communications. However, we always prioritise data security, maintaining human oversight, and meeting ethical standards.
How can I manage legal costs in high-stakes litigation?
In high-stakes litigation, managing legal costs is one of the most significant client concerns.
As your lawyers, we must give you cost information at the beginning of a matter, including an estimate of total legal costs. If there’s a significant change, we update the information. You also have other rights about legal costs, which we outline in writing when you engage us to act for you.There are other ways of managing costs, including:
- Advance agreement with the other parties about the total time needed for a trial
- Managing the expert evidence
- Avoiding using hard copies of electronically stored documents
- Using available technologies wherever possible.
How do I maintain business continuity during the litigation process?
Maintaining business continuity is a significant challenge. In high-stakes litigation, an “all-hands-on-deck” approach often feels necessary due to the seriousness of the undertaking. However, if the business isn’t thriving, it will undermine the litigation.
In the early stages of litigation, business continuity planning can help safeguard your organisation’s operations and clients by minimising disruption.It starts with risk assessment and developing strategies to manage those risks, so some things you may need to consider include:
- The burden on the organisation’s decision-makers
- Locating, retrieving and reviewing critical documents and data
- Meeting privacy requirements
- Managing work interruptions to ensure staff availability for court hearings
- Whether to engage more staff or set up a separate team to cover any absences due to litigation
- How you will communicate developments or interruptions, both internally and externally.
Summing up
High-stakes litigation is a significant undertaking for any business. There are many stages and considerations, including cost management, developing a litigation strategy and maintaining business continuity. Initial work should focus on identifying and understanding the risks and working out how best to manage them. Then, you can make decisions about whether litigation is the best approach.
With decades of experience, we’re skilled at high-stakes litigation and have some exceptional client results to prove it. Contact us to learn more about our high-stakes litigation services and how we can help your organisation.Please note: The information covered in this guide is general and should never be substituted for professional legal advice. Contact us for further information.