On Getting Through The Drama of A Lawsuit

You are a CEO reporting to an angry board.  You are a sole proprietor with the future of your business at stake.  Or you are an employee accused of discrimination or harassment, with your job and relationship at home on the line.  Lawsuits are long, drawn out, often dramatic ordeals; they exact a toll on the participants.  What follows are some ideas about how to cope with this drama and stress:

1.  Find a lawyer you trust.  This sounds obvious, but it can take some searching to find the right attorney.  He or she must be competent in your eyes, or your stress level will increase.  Equally important, your lawyer must be able to manage the stress of the suit or, again, your stress level will be worsened.

2.  Trust the lawyer you find.  Once you find the right lawyer, trust him or her.  It is rare that your lawyer will not want and expect you to be truthful with him or her, even if the facts are bad or embarrassing.  Your lawyer is in the best position to help you or your company; arm him or her with the true facts.

3.  Participate in your case.  I have found that individual clients who take an active role in their case experience a feeling of control.  It’s not illusory.  Your lawyer can only work with the tools and materials made available to him or her.  You can do quite a lot, by locating and organizing documents, educating your lawyer about the nuances of your business or the circumstances of the case.

4.  Manage your anger, fear or frustration.  The stress of being the target of a lawsuit is not dissimilar from other traumatic or stressful events.  Experts coach those going through a divorce or enduring a tragedy to use exercise or relaxation techniques, like meditation, to manage the stress.  Think of a lawsuit in the same way.  One caveat:  bear in mind that communications with someone other than a spouse or lawyer about the details of the case can be “discovered” and potentially used against you if you say something damaging.  Consult with your lawyer before speaking in any detail about your case with someone who is not your spouse.

5.  Try not to direct your anger or frustration at your loved ones.  This will only make it worse and potentially cause damage that can be permanent.

6.  Try not to direct your anger at your lawyer.  Don’t kill the messenger.  In most instances, your lawyer is doing the best he or she can to protect your interests.

7.  Brace for the long haul, but know it will come to an end.  The cliché, “this, too, shall pass,” is true.  Every lawsuit will come to an end, and there will be an opportunity for closure and new beginnings.

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California Supreme Court: Witness Statements Are Protected Attorney Work Product

On June 25th, the California Supreme Court issued an opinion (Coito v. Superior Court) that settles the question whether witness interviews by an investigator must be revealed during pretrial discovery.  To put the opinion in perspective, I’ll use an example from the employment litigation world.

Suppose an EMPLOYEE sues her EMPLOYER claiming that he/she was the victim of sexual harassment by a supervisor.  EMPLOYER hires an attorney who, in the course of preparing the EMPLOYER’s defense, hires a private INVESTIGATOR to interview certain co-workers who may have knowledge of facts suggesting the EMPLOYEE is fabricating the claim.  The question addressed in the Coito case was whether EMPLOYER’s attorney could be (1) compelled to give up the recorded statement obtained by the INVESTIGATOR; and/or (2)  compelled to identify the co-workers that the INVESTIGATOR interviewed.

The Supreme Court held that the recorded statement itself is entitled to at least qualified work product protection.  This means that, if EMPLOYER’s attorney establishes that disclosure of the recorded statement would reveal the attorney’s “impressions, conclusions, opinions, or legal research or theories,” EMPLOYER’s attorney cannot be compelled to share the statement.  If the EMPLOYER’s attorney cannot make this showing, then the statement is still protected from disclosure unless the EMPLOYEE’s attorney can show he/she will be “unfairly prejudiced” in preparing EMPLOYEE’s claim without having the statement.

As to the names of witnesses interviewed, the Supreme Court held that this information is only protected if EMPLOYER’s attorney persuades a court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in EMPLOYEE’s attorney taking undue advantage of the attorney’s industry or efforts (qualified privilege).

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