Maximizing Your Defense While Minimizing Your Bill: Why Outside Counsel Should Pick Up a Phone Before Picking Up a Pen

By: Nate Bohlander, Esq.

During the pendency of any litigation, defense counsel continuously considers two interests, which are seemingly continually and inherently in competition with one another.?But in reality, reasonable, mentally dexterous counsel can navigate these interests in such a way that they work together to the benefit of their clients.

On one hand, if counsel mounts a full-fledged, multi-faceted, comprehensive defense of plaintiffs’ claims, the client is presumably better positioned with respect to a jury verdict, but on the hook for increased litigation costs.?On the other hand, if counsel remain more passive in their defense against the claims, their clients enjoy lower legal bills, but are potentially set up for a surprise at the time of trial.

In all candor, oftentimes there is no way around clients spending money on the front end (litigation) to save money on the back end (trial).?Additional depositions, discovery requests, expert reports, and other activities undertaken in the defense against a claim are costly, but they work in concert to drive down case value.?Alternatively, should clients wish to substantially mitigate their defense costs, and direct their counsel to take a back seat during litigation, plaintiffs’ claims will go largely unchallenged, setting up for a rude awakening down the road.

However, as a recent example in one of our cases demonstrated, a nimble attorney can often achieve the best of both worlds: fully defending the interests of the client while saving on litigation costs.

In this case, plaintiffs’ counsel filed and served a complaint upon several named defendants, including our client.?Upon our evaluation and analysis of the complaint, we noted several objectionable and improper allegations which, if not remedied, could negatively impact our client down the road.?Two of these were: 1. Plaintiffs’ assertion of punitive damages; and 2. Plaintiffs’ inclusion of ambiguous and broad language with respect to the negligence claim.?Left unchecked, plaintiffs could pursue punitive damages, as well as expand the scope of the negligence claim, against our client at the time of trial.

The traditional means by which these issues are addressed is through preliminary objections.?Preliminary objections are typically involved, comprehensive filings which require strict adherence to state and local rules of civil procedure, as well as an explanation of all applicable legal support via a memorandum of law.?In other words, they are substantial billing events for attorneys.

Rather than undertake the drafting and filing of preliminary objections, we sought a different way to remedy the concerns in the complaint.?We picked up the phone and spoke with plaintiffs’ counsel.?

After a short conversation, counsel agreed to strike the punitive damages claim, as well as the ambiguous, encompassing negligence claim, from the complaint.?Counsel also indicated that he would be filing an amended complaint, which would reflect these changes, as well as make additional corrections we had noted during our call (including correcting our client’s name and attaching another verification supporting a loss of consortium claim).?

After the call, we immediately contacted plaintiffs’ counsel via email for two reasons.?First, we wanted to memorialize the agreement reached during the call, in case an exhibit was needed for preliminary objections or a motion down the road.?Second, we sought an open-ended extension of time to file a responsive pleading to the complaint.?If plaintiffs’ counsel decided not to file an amended complaint, we needed to protect our client and preserve the right to file preliminary objections.?By using the phrase “responsive pleading,” rather than “answer,” we kept the possibility of preliminary objections on the table.?Plaintiffs’ counsel agreed, and we awaited the filing of the amended complaint.?Counsel did indeed file the amended complaint, which, as he represented, corrected all of the issues we raised during our call.

In short, faced with a complaint bereft with objectionable and problematic issues for our client, we had two options.?First, we could have immediately put our head down and started drafting preliminary objections.?This would have required billing our client for researching statutory and case law, reviewing all pertinent sections of the file, drafting the preliminary objections, and identifying and compiling all accompanying documents as exhibits.?If plaintiffs’ counsel substantively opposed the preliminary objections, we would have been forced to file a reply in support to our filing, and the matter would be left in the Court’s hands.?On top of all of that, if plaintiffs’ counsel filed an amended complaint curing the language at issue in the preliminary objections, then our filing would be rendered moot, and we would re-start our analysis.?

Second, we could have simply picked up the phone and call plaintiffs’ counsel.?The best possible scenario occurred; plaintiffs’ counsel agreed with our position with respect to these objectionable issues, pledged to remedy them in an amended complaint, and provided us with an open-ended extension to respond to the complaint if anything changed.?However, even if the worst possible scenario occurred, and plaintiffs’ counsel declined to cure these defects, our position would not be any worse than it was before the call – we would have known that preliminary objections were necessary at that time.

In the end, we resolved these issues with a short phone call rather than lengthy preliminary objections.?The result was exactly the same, and our client was protected, but the route we chose to get there saved our client hundreds of dollars.?We also garnered goodwill with plaintiffs’ counsel.

Undoubtedly, not all opposing counsellors are as reasonable as this one.?And not all impasses can be solved with a phone call.?However, when handling your claims, if your assigned outside defense counsel requests authority to draft a file a comprehensive pleading, preliminary objection, motion, or other submission, or retain an expert, ask them if they’ve exhausted all potential avenues to resolve the issue with opposing counsel.?If counsel reports that preliminary objections are needed, ask if they’ve spoken to opposing counsel about striking problematic language.?If counsel seeks permission to draft a motion to compel, inquire as to whether they’ve sought the information or documentation at issue repeatedly and reasonably.?If counsel wants to retain an expert, ensure that they have requested that the claim or count against the client which required expert opinion be dismissed.?If counsel requests authority to file a dispositive motion, see if they have explored partial or full voluntary dismissal of claims against the client.??

Incurring at least some defense costs during litigation is unavoidable.?Plaintiffs’ claims cannot go unchecked, and all defense attorneys owe a duty to their client to explore all potential avenues of defending against these claims.?But sometimes, there are ways to achieve this comprehensive defense without billing the client in order to do so.?

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