Recognising and seizing opportunities in a timely way is integral to litigation strategy, write Sneha Jaisingh and Shreya Gupta
Litigation is like making hamburger mince, its messy and its bloody. The plaintiff asserting his/her rights and the defendant resisting the claim each feel the pain, both emotional and financial. The primary responsibility of the litigating attorney is to devise a strategy that will achieve the optimal result for the client while causing the least pain. There can be no universal strategy since each case is unique, but there are pointers for a good litigator to follow.
The foremost is to understand the clients and their needs. In commercial litigation one seldom comes across an individual client, but the important thing to remember is that a corporate entity is represented by and speaks through individuals.
The litigator must understand the individuals with whom he/she interfaces, what drives those individuals, what end game is sought to be achieved, what resources are available to achieve the end game, and, most importantly, what are the weaknesses and strengths of the individuals involved. A seemingly strong case may be lost because of weak witnesses, but a seemingly weak case can be won if the evidence is strong. The litigator must be capable enough to get into the mind of his/her client and work with that mind.
Strategy often precedes the actual commencement of litigation. Strategy must be preventive and aimed to avoid litigation. If litigation is inevitable, then the strategy must be tailored to reduce the risks. It is, therefore, essential to identify the potential pain points of the client and the opponent as early as possible. Once identified, the efforts must be to shield the client’s pain points and strike strongly where the opponent will hurt the most.
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Sneha Jaisingh and Shreya Gupta are managing associates at Bharucha & Partners.