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What Not to Do When Preparing for Litigation

Sep 28, 2022 | Litigation

Although there are many things you should do when you’re preparing to litigate a business dispute, there are also a number of things you should not do. Inadvertently saying the wrong thing to the opposing party or making certain decisions can be detrimental to your case. It’s crucial to speak with experienced counsel who can help ensure you are prepared for what lies ahead in the litigation process, based on the facts of your specific case. The following are some basic tips on what types of conduct to avoid when preparing for litigation.

1. Don’t Fail to Send a Litigation Hold Letter (or Disregard Your Obligation to Preserve Evidence)

A litigation hold letter advises the other side that litigation has either been commenced or will be in the future, and they should not destroy, alter, or dispose of any relevant information. A party who disregards a litigation hold can be hit with serious sanctions — including dismissal of their case, monetary penalties, stricken pleadings, and an adverse inference at trial.    

2. Don’t Tip Your Hand to the Other Side or Their Attorney

In business litigation, strategy is everything. Do not tip your hand to the other side or attempt to negotiate the matter on your own once you’re represented by counsel. Whether your case is contentious or amicable, you must follow the advice of your attorney and let them communicate with the opposing side’s attorney.   

3. Don’t Threaten Illegal or Repudiatory Action

It’s standard to threaten litigation when you send your initial demand to the other side. A fine line exists between extortion and a strong demand letter. Threatening illegal or repudiatory action against the other party can have significant — and unwanted — consequences. Not only can it harm your case, but it can lead to other legal action commenced against you. 

4. Don’t Overshare with the Opposing Party or Their Attorney

Discovery is part of the litigation process. While various evidence and documents must be shared with the other side, it’s imperative that you don’t say or do anything that could harm your case. You shouldn’t discuss the case with third parties, on social media, or with anyone besides your attorney. Anything you say or do in litigation can be used against you by your adversary.     

5. Don’t Make Decisions Without Consulting Your Attorney

You and your attorney should be working closely together in your case to achieve the best possible results. Your attorney will help you navigate the legal process and provide you not only with representation — but they will also offer you skillful advice based on years of experience and acquired knowledge. It’s critical not to make any key decisions in your case without first discussing the pros, cons, and ramifications with your attorney. Failure to do so can impact the strategy they have implemented, and ultimately, the outcome of your case.

Contact an Experienced New York Business Litigation Attorney

If you’re preparing for litigation, it’s important to have an attorney on your side to guide you every step of the way. Brinen & Associates provides capable counsel and adept advocacy to entrepreneurs and business owners for a wide variety of business disputes. Call (212) 330-8151 or send us a message to learn more about how we can assist you with your legal matter. 


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I formerly worked as a satellite employee from my home state of New Jersey. I ended my employment with my former employer in 2016. In 2018, I was sued by my former employer for $1.1 million in Illinois State Court. I was referred to Brinen & Associates, LLC by a friend who is a client of the firm. Brinen & Associates, LLC came highly recommended. I contacted Joshua Brinen and then had a consultation at his office with his colleague Mark White. Together, Messrs. Brinen and White explained my options...

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