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Managing the Early Stages of Commercial Litigation: Critical First Steps

19 July 2010
Mayer Brown Book

While they may not be the most glamorous tasks faced by inhouse and outside counsel, many of the actions that should be taken in the first days and weeks upon receiving a summons and civil complaint, such as issuing litigation holds, putting insurers on notice and deciding whether to waive service of process, can be crucial to the action’s outcome. Early mistakes may not be easily undone and, thus, can haunt the company throughout the life of the litigation and beyond. In high-profile cases, the very public pressure placed on clients will promptly filter down to the lawyers charged with making these early decisions. Given the time constraints, the often now-or-never nature of decisions and actions, and the attendant pressures, sound and thoroughly considered decision-making during this period is crucial.

For instance, failure to promptly instruct senior managers about the potential ongoing discoverability of their records may result in the circulation of ill-considered emails that the company may regret throughout the course of the suit. Also, the destruction of discoverable materials by employees who do not read, or who fail to appreciate the breadth of, a litigation hold can lead to adverse inference jury instructions or worse.

The consequences can be similarly long-lasting for mistakes made by in-house or outside counsel, particularly where decisions must be made within deadlines that can expire shortly after suit is filed.  For example, the right to remove a case to federal court can be lost forever if not timely exercised. Insurance coverage can be forfeited if notice is not promptly and properly provided to carriers. And lawyers can waive privilege for the entirety of a case by communicating with non-lawyers before learning the parameters of privilege in the jurisdictions that will be relevant to a dispute.

To assist in-house and outside counsel with key legal strategy issues that often arise early in a matter, we have written this booklet to provide a handy checklist of sometimes familiar tasks for in-house and outside counsel with extensive experience representing clients in civil litigation. Additionally, for in-house lawyers who do not handle a great deal of litigation, but who find themselves charged with managing a lawsuit for their client, we set out many of the issues that will arise during the early stages of a lawsuit and identify the important elements to be considered .

One of the most important services that a lawyer can provide to a client in civil litigation is to put the case on a proper course during the early stages of the matter. We hope that you will find this work helpful to you in doing so.

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Edited by Michael K. Forde

For a copy of “Managing the Early Stages of Commercial Litigation: Critical First Steps” please submit your request.

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