1.原告弁護士の立場で考えよう
あなたが原告の弁護士ならどう訴訟で勝とうとするか?
原告の弁護士の立ち場で考えてみよう。
2.裁判になることを想定しよう
日系企業で断然多いのは示談。99%のケースが示談になっていると聞く。最初から示談を考えるのではなく、あくまでも裁判で戦うことを想定しよう。なぜなら原告側の弁護士は最初から裁判を想定しているからだ。
3.陪審員を考える
陪審員はどのように考えて、回答を出すか?陪審員の立場でケースを考えよう。
4.重要な証拠に集中
取るに足らない小さなことにこだわっても仕方がない。重要な事実に目を向けよう。
5.出すものは出せ
要求された書類を隠しても仕方がない。提出を求められたものは全て出す。
6.相手側弁護士の考えをいただく
訴訟のプロセスに入っても相手側の弁護士の考えをトラックしながら戦う。相手側弁護士でさえ、自分のチームの一員のように考えられればベスト。
7.オプションを考える
いろいろなケースが考えられる。代替案を想定し、いろいろなケースに対応できるようにしよう。示談をする条件も譲歩をおりまぜながら条件提示する等。
8.何が強みか?
自分のケースの強み。勝てる見込みのある要素を考えろ。1分間で自分の強みが言えればベスト。
9.負け戦になりそうなら示談を
あくまでも自分の側に弱みがあるなら、示談を考えよう。
出典:BLR
1. Think Like a Plaintiff's Lawyer
Weltman suggests that to manage lawsuits, you have to start by thinking like a plaintiff's lawyer. For example, work with small litigation teams that are "leveled," that is, where the most experienced lawyers (rather than newly minted associates or paralegals) are involved in the day-to-day details.
2. Focus on “Going to Trial”
Even though your goal is to avoid a trial, you have to establish the trial mindset, because that is what the plaintiff's lawyers are doing. They are focused and know what they have to do to win. If you are careless, they will slip past you and into court.
3. Consider Jury Instructions
In a similar vein, keep your mind on what the jury instructions will be. They will reveal important clues to help you build your case and also help predict the case your employee's lawyer will present. Then, maybe you can set up some roadblocks, Weltman says.
4. Observe the Limited Chips Rule
Weltman cautions about briefing and arguing every possible motion. It's a good education for your attorney's associates, but it’s wasting "credibility chips" if the judge gets annoyed. Some motions just aren't worth pursuing unless you are reasonably sure of a meaningful positive outcome.
Some 20 percent of your people—the duds—take up 80 percent of your time, right? Learn to deal with the duds during a special BLR’s May 13 audio conference, How To Eliminate Common Personnel Problems Without Getting Sued. Can’t attend? Preorder the CD. Click for more information.
5. Don't Fight Discovery
In general, it is best not to fight discovery, says Weltman. Instead, gain chips by bending over backwards to give the other side everything they request. While you’re at it, hire an experienced plaintiff's lawyer to go over your documents. You'll learn which ones might be most troubling, and you'll be able to plan how to blunt their effect.
6. Hire a Plaintiff's Attorney as Part of Your Team
Thinking along the same lines—and especially if you think your case is weak—consider hiring a plaintiff's attorney as part of your defense team. You'll gain insights about how the other side thinks, and that will help you prepare your case.
7. Make Contingency Work in Your Favor
One element to recognize, Weltman says, is that opposing attorneys generally work on a contingency basis, and that may make them eager to settle for a reasonable figure.
Then there's the other side of the contingency coin. Maybe you can build some contingency into the arrangement with your attorney. For example, propose a blend of reduced hourly rates with negotiated bonuses, keyed to benchmarks based on how much your exposure is reduced at the end of litigation.
Are employee “duds” a protected class? No, but sometimes it seems like it! Learn to deal with them without incurring lawsuits in BLR’s May 13 90-minute audio conference. Can't attend? Preorder the CD! Read more.
8. Gauge the Strength of Your Case
Weltman recommends that you ask your outside attorneys to tell you, out loud, in 1 minute, their best case. (That's also your best case.) Judges are not automatons—they will often react to the party that offers the most appealing presentation. The 1-minute summary will help you to determine how strong your case is.
9. With a Weak Case, Think Settlement
If you do conclude that your case is weak, says Weltman, think settlement sooner rather than later. The longer the process goes on, the more damaging evidence is on the record. The stronger the plaintiff's case gets, the more valuable it is.
In the next Advisor we'll talk about dealing with the people who start these cases in the first place—dishonest, difficult “dud” employees.