Article Excerpt
Please give an overview of the types of claims and issues that may arise in litigation to which a company is a party.

The list of types of claims and issues that can arise in cases involving companies is limited only by the imagination. Litigation involving companies runs the gamut from disputes involving corporate governance, to disputes involving current or former employees, to disputes with other companies or individuals regarding contractual obligations, property rights or business or personal injuries, and everything in between and beyond.

What strategic factors are relevant to the decision to litigate, rather than to settle, a civil claim? How and when should that decision be reviewed? Any number of strategic factors can go into the decision of whether to litigate or settle. Typical considerations can include the strength of the plaintiff's liability case, the strength of the plaintiff's damages evidence and amount of damages at issue, the strength of the defendant's defenses, the relationship between the parties (for example, do they have an ongoing business relationship or the prospect of a future business relationship and, if so, how valuable or important is that relationship to the respective parties?), the impact of a settlement on other pending litigation or on potential future claims involving the parties, the impact of an adverse outcome on a party's continued viability or on other pending matters or potential future claims involving the parties, and the significance or relevance of the litigation in view of a party's current or future business plans. Unique individual circumstances can enter into the equation, as well. For example, settlement may be a more important consideration where the principal executive in a closely held corporation is suffering from significant health problems and does not want to go through the rigors of litigation or a trial.

Duane Morris' view is that parties frequently fail to consider settlement as early as they should in the litigation process. A party should be willing to entertain settlement even from prior to the filing of a case. Oftentimes, a pre-filing settlement represents the best resolution for all parties involved because the parties avoid the costs of litigation, the disruption to their business operations it causes, and the negative publicity that can sometimes accompany the filing of certain higher-profile cases. Another point at which parties often consider settlement is after a case-dispositive motion has been fully briefed by the parties and is pending before the court. Every such motion involves at least some element of uncertainty for both parties - will the case be thrown out entirely or significantly cut back in scope, or will it survive unscathed? That uncertainty can represent a good opportunity for the parties to make a deal. In our experience, defendants often push through discovery and the summary judgment phase of a case with the view that they will only consider settlement if the judge decides the case should go to trial. Such a strategy is appropriate in some situations, but can be ill-advised in others. A defendant who has lost its motion for summary judgment not only finds itself in the weakened position of having to go to trial to defend against a plaintiff's claims (and thus faces the uncertainty that accompanies that process), but has also suffered through the discovery process, which can sometimes be a very disruptive and embarrassing violation of a corporate defendant's privacy.

Settlement should involve a careful assessment of the case and the business interests of the company. Consequently, the decisions of whether and when to settle and on what terms should be made only after meaningful input from both a company's key business people and its attorneys.