No matter how carefully a parcel shipper structures its transactions and conducts its operations to avoid being sued, it is almost inevitable that sooner or later a claim will be brought against it in a court of law.
Similarly, no matter how much effort a parcel shipper makes to resolve its own claims against other parties out of court, there will be situations where the settlement discussions break down and a parcel shipper will have to bring a lawsuit in order to recover its claim.
In this installment of PARCEL Counsel, we will discuss how a party involved in a lawsuit as either the defendant or the plaintiff should use a lawyer in the litigation. By way of background, these observations are based upon the countless lawsuits wherein I have represented either the plaintiff or defendant over the last 50 years.
Communicate with Your Lawyer
The outcome of any lawsuit is based upon the underlying facts. Accordingly, it is essential that you provide your lawyer with all of the underlying facts of the situation regardless of whether or not you think they might be relevant.
In transportation, there are lots of terms that are not generally known. Accordingly, it is important that you teach your lawyer the meaning of the terms that you use.
DOCUMENT AND RECORD RETENTION
As a general rule, once litigation is contemplated or has occurred, there will be put into place something known as a “litigation hold.” What this means is that documents, records, emails, and anything else that might be relevant to the subject matter litigation are preserved and not destroyed – whether accidentally or otherwise.
Before any litigation occurs or is even contemplated, it is very good business practice to adopt a policy for document and record retention. It is very frustrating for a lawyer when a client says, “There was another page we added later, but we can’t find it now” or “I didn’t get his name” or “The person at our company that handled this matter is no longer with us and moved to Cleveland…or was it Cincinnati?”
GET THE LAWYER INVOLVED AS SOON AS A PROBLEM ARISES
When you are served a Complaint naming you as a defendant in a lawsuit there are very short time limits within which to respond to the Complaint which would require retention of a lawyer immediately. However, consideration should be given to getting the lawyer involved when it appears that there might be litigation arising in the near future.
Conversely, when one wants to commence a lawsuit the time periods to do so are known as statutes of limitations. These can be up to six years or even longer. However, it is not good practice to wait until the last possible time to start a lawsuit as memories fade and documents disappear.
THE LAWYER KNOWS THE LAW; NOT THE FACTS
While an experienced lawyer is expected to know the relevant laws surrounding the litigation, they do not know the facts. This means that it is the task of the parcel shipper involved in the litigation to make sure the lawyer has all of the available facts. It does not help your lawyer win your lawsuit when they hear someone say, “Oh, it is way in the back room” or “We are just too busy to answer all of these interrogatories” or “Why don’t you ask them for that?”
GET INVOLVED IN THE CASE
To effectively prevail in litigation, it is important for at least one person in your organization to become very involved in the case. This includes reading all of the court filings and attending any court hearings - even if their presence is not required. All for now!
Brent Wm. Primus, J.D., is the CEO of Primus Law Office, P.A. and the Senior Editor of transportlawtexts, inc. Previous columns, including those of William J. Augello, may be found in the “Content Library” on the Parcel website (parcelindustry.com). Your questions are welcome at brent@primuslawoffice.com.
This article originally appeared in the January/February, 2024 issue of PARCEL.
