Leveraging Claims

As outside litigation counsel, I've witnessed firsthand the substantial costs and distractions that can come with protracted legal disputes. For companies embroiled in high-stakes business disputes, the looming prospect of months (or years) in court (or arbitration) can be daunting from both financial and operational standpoints.

What if there was a strategic maneuver that could motivate the opposing party to come to the settlement table with a genuine interest in resolving the matter? One tactic I sometimes leverage is drafting a complaint that lays out all potential claims in as much detail as possible.

By putting the entire litigation-ready case on the table from the outset, the client can demonstrate its preparedness to go the distance if needed. However, it also extends an olive branch for settlement negotiations by letting the other side fully grasp the seriousness of the allegations and potential damages they're facing. And: by giving them a heads up of where things might lead if an agreement cannot be reached from the jump.

I've seen this shift the dynamics for my clients. The mere threat of a well-drafted and thought-through complaint can compel the opposition to recalibrate their stance and engage in realistic settlement talks, allowing both sides to avoid the substantial costs and reputational risks of full blown litigation.

In one recent matter, our client had legitimate breach of contract concerns plus a thought that the opposing party would not want the dispute to go public. So, we drafted a complaint, outlining the client's claims and alleged damages and served if on the opposing party, with a demand letter.

Pretty quickly thereafter, the client reached a favorable settlement and both sides avoided the costs of what would have likely been a discovery-intense (and expensive) lawsuit.

Although this technique doesn't guarantee settlement in every scenario, it can be a powerful tool for incentivizing the other side to approach negotiations reasonably and professionally.

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