Treat litigation like an operational discipline from the beginning: preserve evidence, involve counsel early to protect privilege, control written communications, prepare experts and corporate representatives for examinations, and keep business risks and spending in check.
Litigation is a business process with legal consequences, so it should be managed with the same rigor applied to safety, finance, and cybersecurity. Early evidence preservation and disciplined investigations help avoid spoliation risks and strengthen privilege and associated work-product protections. Tight control over emails, texts, and notes keeps “screen-at-trial” surprises to a minimum. Prepared corporate representatives, intentional expert selection, and credible motion practice improve outcomes while focused alternative dispute resolution, including mediation, can accelerate resolution. Use artificial intelligence (AI) cautiously to avoid “phantom” answers, privilege waivers, or sanctions.
Why This Matters Now
Litigation spend is rising as discovery expands and plaintiffs’ firms deploy sophisticated tactics, and large verdicts and settlement pressure amplify downside risks. The most reliable hedge is operational discipline: prepare early, communicate clearly, and make strategic choices that protect credibility and control cost.
Operational Impact of Litigation
Litigation affects revenue, reputation, and executive bandwidth. The first 48 hours (initial investigation), followed by the next 30–60 days, can set the tone: what is preserved, written, delegated, and approved could determine leverage and outcomes. Clear roles between the insureds-business, including legal, insurers, and outside counsel keep matters on schedule and within risk appetite.
Dos
- Treat every significant incident (and if you cannot determine the significance, treat it as such) as if it will be litigated, preserving and gathering evidence contemporaneously to minimize spoliation risk and maximize accuracy.
- Involve in-house or outside counsel early and structure fact-gathering to protect attorney–client privilege and work-product where available, being intentional about witness statements, field notes, and consultant workstreams.
- Use discovery as a tool, not a treadmill: deploy targeted requests for admission and narrowly-tailored discovery (interrogations and requests for production of documents, as well as demands for inspections) to sharpen issues and control costs, while avoiding omnibus and unnecessary motion practice that dilutes credibility.
- Select and prepare corporate representatives and experts deliberately, matching expertise to the forum and issues, managing baggage, and rehearsing testimony.
- Fight for an effective mediator and show up prepared with an opening statement that highlights the claim weaknesses and forecast the hurdles the plaintiff will have to endure absent resolution (subject to a strong and purposeful recommendation of the mediator to forgo this opportunity).
- Use AI tools cautiously and verify output to protect privilege and avoid reliance on unvetted “answers.”
Don’ts
- Don’t let the least-experienced person lead root-cause analysis, after a serious incident without legal oversight, as missteps here can create major litigation (discoverability, etc.) problems.
- Don’t put anything in emails, texts, or file notes you would not want displayed to a jury, keeping memorialized communications factual and measured.
- Don’t default to boilerplate pleadings or “everything-and-the-kitchen-sink” motions, instead tailoring positions to the particular venue and specific facts to preserve credibility and all defenses.
- Don’t avoid agency (OSHA, USCG, CBP, etc.) interaction during investigations, instead participating in, working with, and potentially influencing the processes (recall that even if the conclusions of a government report may be inadmissible at trial, the report and associated factual findings are discoverable and may have a bearing on the outcome of the litigation).
- Don’t allow agreed tactics to drift: if a recommendation is approved, track it to completion and hold the team accountable.
Key Takeaways
- Early preservation and privileged investigations create leverage and reduce litigation risks.
- Write for the big screen: assume communications may be read in court.
- Credibility beats volume: targeted discovery and motions outperform omnibus and unnecessary filings-submissions.
- The right experts and prepared corporate representative can make or break a case.
- Mediation is an opportunity to avoid risks and waste—choose wisely and prepare to persuade.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any action based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
