Sunstein Approach to Litigation

At Sunstein, we approach litigation systematically. To this end, we:

  1. Identify at the outset a unifying concept of the case that lets us integrate the facts and legal theories into a cohesive presentation favorable to our client’s position;
  2. Determine explicitly our client’s objectives in the litigation;
  3. Develop a budget for the litigation to assure that staffing and other resources are wisely allocated to meet the requirements of the case;
  4. Prepare an issues outline and identify for trial all relevant facts and the witnesses, documents and demonstrative evidence necessary to prove those facts, as well as applicable legal principles of liability and damages;
  5. Build on these four steps to develop a strategy to promote maximum control over the “agenda” of the litigation and to prepare fully for trial; and
  6. Conduct the trial, where settlement on reasonable terms is not available, using intelligent staffing consistent with the strategic needs identified for the matter.

Experience has proven our approach to be effective in a wide array of litigation matters, including patent, trademark, copyright, trade secret and unfair competition cases, as well as commercial, contract, corporate, health care and employment disputes. We have found that rigorous application of effective litigation techniques results in settlement on favorable terms of the great majority of cases prior to trial. In addition, our clients are able to evaluate litigation at any given point with a reasonable estimate of both the costs and the risks involved.

The unifying concept of the case may be simple or complex, but it is essential for guiding discovery efforts, strategic initiatives, trial preparation, settlement discussions and trial. We strive to emphasize the strengths of our client’s position, but also are careful to identify any weaknesses, and to work them into a coherent presentation of the case that still permits our client to prevail.

Determination of our client’s business goals and objectives is similarly crucial to proper handling and effective results. One of our clients, for example, a defendant in a patent infringement case, sought to continue to sell the accused product but wished to minimize its litigation expense. While we believed the plaintiff’s patent could be effectively challenged on validity grounds at the trial, substantial expense would be involved. We accordingly undertook a vigorous defense, but also identified strong claims against the plaintiff and countersued the plaintiff and its business partner for trademark infringement. Settlement negotiations ensued and resulted in our client obtaining a royalty-free permanent license under the plaintiff’s patent and an agreement by plaintiff and its business partner to refrain from further use of the infringing trademark.

The issues outline provides an important tool for the lawyer to maintain control over a litigation, to identify necessary or desirable initiatives, and to promote efficient preparation for trial. In similar fashion, the litigation budget permits the lawyer and client to keep track of costs and to determine what resources will be necessary for any given event in the proceedings. The budget also permits the client to make a more informed business decision about the relative risks of the proceeding and about the desirability of any settlement offers.

Since litigation is a dynamic process that frequently entails unpredictable turns of events, strategic planning is, in our experience, a necessary part of the effort to exert control over the “agenda” of the litigation for the benefit of our clients. We have substantial experience both in launching and in responding to emergency requests for temporary or preliminary injunctive relief. Thus, in one case involving sophisticated computer software, we obtained during the first week of the litigation a preliminary injunction on behalf of our client prohibiting further sales by the defendant of the infringing software programs. After expedited discovery, we obtained partial summary judgment on liability for copyright infringement defeating the defendant’s repeated efforts to have the injunction dissolved. At trial we obtained substantial damages for copyright infringement, and also prevailed on our claims of breach of contract and fraud, obtaining contract damages as well as punitive damages on the fraud claim.

The lawyers in our firm have collectively had extensive trial experience, both jury and non-jury, in courts throughout the United States. We believe in staffing cases as efficiently as possible and using associates at lower rates on work commensurate with their abilities. In addition, where a trial, or an emergency hearing, or a large case on an expedited discovery schedule requires many hands, we pride ourselves on the ability to assemble and apply the requisite resources. Just before Christmas, one of our clients was sued by a major corporation and ordered to conduct the equivalent of full discovery within two weeks. We assigned five lawyers and two paralegals to the various tasks of depositions, document discovery, preparation of briefs and affidavits and settlement discussions. We successfully deflected the plaintiff’s effort to obtain a preliminary injunction and negotiated a settlement of the controversy on favorable terms for our client.

We have also delivered excellent results for our clients through alternative dispute resolution (ADR), a category that includes arbitration and mediation. Arbitration calls for having a dispute decided by neutral persons, either a solo arbitrator or a panel of three, and ordinarily results from the parties’ pre-dispute agreement to arbitrate any disputes that arise. Mediation, by contrast, is a consensual enterprise that relies on a neutral person to help the parties negotiate a resolution of their differences. Arbitration is usually binding, while mediation produces a settlement only if the parties deem it mutually acceptable.

We find that the principal virtue of arbitration is speed, because the “private judges” selected by the parties are not burdened with the caseload of state or federal judges. Pre-hearing discovery and evidentiary standards are only slightly less stringent than in the judicial context, and the decision is every bit as final as that of a judge or jury. Consequently, we devote to arbitration all the strategic planning and creative energy that we do to bringing a case to trial.

Mediation, by contrast, is valued for achieving resolutions at a fraction of the cost of taking a dispute all the way to trial. Still, we believe that the same rigor that helps position the case for mediation should apply throughout the process. To make the most of mediation, it is essential to devise a strategy that assures its value. Can our client’s goals be achieved in the spirit of compromise that characterizes mediation? If so, when is the right time to pause from litigation and try to mediate a resolution? Do we possess enough information to meaningfully assess the value of the dispute? Can the parties agree to some limited but focused discovery to reach this point?

A serious and assertive approach to the actual conduct of mediation is a key to its success. For all the relative informality of the process, it provides a golden opportunity to communicate directly not only with opposing counsel but with a principal of the opposing party (whose presence is generally required). Accordingly, we invest tremendous effort into educating both the mediator and the opposing party about the strengths of our case, so as to encourage settlement on favorable terms.

In our experience, the consistent and energetic use of the sound litigation practices outlined here enables us to provide our clients with the highest quality of representation. It promotes good client relations, in which we take great pride, and it produces effective results for our clients.

If you have any questions about litigation or would like to discuss the handling of litigation in the context of your business, contact a member of our Litigation Practice Group.