Importance of Formulating Pre-Litigation Strategy

Every Lawyer engaged for settling legal claims on behalf of her client devises some kind of strategy at pre-litigation and litigation stage of the lawsuit to achieve optimal results while minimizing the risks. The job is much more extensive than “know the law and apply the law”, it expects a legal counsel to anticipate the consequence of every word that is written in pleadings and every action that is taken inside the courtroom and outside of it.  

A lawyer must pay keen attention to the nature of her client’s claim, the jurisdiction of the legal forum that she seeks to approach, judge on the roster and her inclinations, the opposite party and its past actions with respect to the client. While a Litigator is supposed to keep the strength of the client’s case in mind, it is imperative to address a case’s weaknesses while devising a strategy. A simple act of going against the norm can put your client’s case on a better footing.

For instance, while filing a Civil Writ Petition under Article 226 of the Constitution of India, the standard practice is simply to file the suit and seek an exemption from serving advance notice in the prayer clause. However, in a petition filed on behalf of a retired government employee who wanted to challenge his seniority position settled since the year 2001 in the year 2019, simply sending a legal notice prior to filing the lawsuit allowed us to tackle the issue of limitation to some extent. To the client’s credit, his case was a genuine one and he had been making regular representations to his seniors (the last one in the year 2017). Even though, choosing to send the legal notice delayed the filing of the petition by more than 2 months, the benefit of serving the Legal Notice, in my opinion, outweighed its drawbacks. To think of it, the earlier employer (hereinafter referred to as Employer) could have responded to the legal notice in 3 ways:-

1.  Given him the relief he was seeking:- we would not have to approach the court.

2.  Rejected his claim :- we would have an order to challenge in court. It would have addressed the limitation problem.

3.  Not replied:- gone to court and pray for the relief like originally planned. In the worst case scenario, we would have sought a writ of mandamus directing the Employer to decide the legal notice.

The Employer, staying true to its previous conduct, didn’t bother to reply to the legal notice too. Nonetheless, sending that legal notice worked in our favor. The Hon’ble High Court disposed of the petition, on the first date itself, with a direction to the Employer to decide the legal notice within 6 months. Now, if the Employer rejects the claim of my client, the order could be challenged in the High Court on merits. The Employer cannot reject the claim only on the ground of delay since it was its own fault that it chose not to answer the petitioner’s earlier representations or the legal notice. The Employer would have to pass a reasoned order which could be challenged in the court without the sword of limitation hanging over our heads.

Obviously, this was just one aspect of the case. There are still a thousand things that make or break a case. Frankly, the case could have gone in a different direction if it were before another judge. The suggested approach can also be criticized on the ground that it did led to multiplication of litigation. But each criticism is understandable since every lawyer approaches a legal problem according to his/her own understanding of the situation. In the end, we can suggest what, according to us, is the best way forward, the final call still belongs to the client. As lawyers, we cannot guarantee a particular outcome at the very outset but with a little planning, we can certainly gain advantage on every step of the way which might steer the final verdict in our direction.