Leveraging Litigation: Getting Quick Results in a Slow System
By Kelly McDonald, Partner
The COVID-19 pandemic and widespread concerns about the economy are shaping all of our decisions right now. Litigation gives us tools to get quick relief from the courts in the right cases.
Full-bore litigation can take months or years. That can be far too long when money is tight, when your opponent might run out of money, or when your business is on the line. Fortunately, there are a number of tools that a strategic litigant can use to get meaningful, early-in-the-case results. These results can then be leveraged towards a satisfactory settlement or to maximize the likelihood of ultimate success.
Attachment: Liens on your Opponent’s Assets
Maine law gives litigants the opportunity to get a pre-judgment lien on their opponent’s assets very early in the case. This can be useful if your opponent is running short on cash or hiding it.
At the same time you file the complaint (or later, if you wish), you can ask the court for a preliminary ruling on the merits of the case. If the court decides that you are “more likely than not” to win, the court can give you the power to lien. The lien can be placed on real estate or other assets directly in your opponent’s possession. It can also be placed on assets in somebody else’s possession – like a bank. In other words, you can freeze your opponent’s bank accounts. This is obviously an extremely powerful tool and provides significant leverage.
This tool is all the more powerful when employed on an “ex parte” basis. This means that the other side doesn’t get to see or respond to the motion before the court rules on it. In other words, in an appropriately strong enough case, you can freeze your opponent’s bank accounts within the first weeks of filing suit.
If your case involves something other than money damages, you may be able to get early relief from the court in the form of a temporary restraining order or a preliminary injunction. Both of these constitute an order from the court to your opponent to either do something or not do something. For example, if your employee just took trade secrets to a competitor, the court can prevent the use of those trade secrets while the case gets resolved.
As with an attachment, this relief can be obtained on an “ex parte” basis to get an order within days or even hours in appropriate cases.
Most civil cases in Maine are required to go through mediation before getting to trial. In cases where both sides understand the case or where a quick resolution is needed, participating in mediation soon after the complaint is filed can be an effective way of reducing litigation costs and obtaining a quick result. Indeed, it is often wise for parties to engage in mediation voluntarily before litigation is filed.
In order for mediation to be successful, though, both sides need to have access to most of the same information. In cases where there is a disparity in knowledge, it is likely that at least some discovery will need to be performed in order to educate the other party as to the risks of proceeding with the litigation. It is unusual for mediation to succeed when new, material information is presented at the mediation. To maximize the chances of success, counsel for both parties should confer to determine whether additional information needs to be exchanged prior to mediation.
Early Results Are Possible
You can get fast results out of our litigation system in the right cases. You can put a lien on your opponent’s assets, get an early order from the court, and push both sides towards a resolution. Be a versatile litigant and leverage all of the tools you have available to you.