Even If Settlement Seems Certain, the Smartest Strategy Is to Get Ready for Trial
Most business disputes settle. But if you bank on settlement without preparing for trial, you put your company at a disadvantage. The best settlements come when the other side knows you are fully ready for court. That means building your trial strategy from day one.
Here are eight practical steps to strengthen your company's position — at the negotiating table and, if necessary, in a courtroom.
1. Build Your Story Early
Trials persuade through clear, compelling narratives, not stacks of exhibits. Work with outside counsel to develop a central theme that resonates with judges or juries and focus discovery on the evidence that supports it. A well-defined story signals you are serious about going the distance, which can shift settlement dynamics in your favor.
2. Identify and Prepare Company Witnesses
Even strong documents can’t rescue an unprepared witness. Pinpoint who in your organization holds critical knowledge, introduce them to counsel early, and coach them on the case themes.
Pro Tip: Include all potential witnesses in pretrial filings. Omitting someone could prevent them from testifying. Better to be overinclusive than risk exclusion.
3. Secure Relevant Documents Right Away
Start collecting and preserving materials as soon as litigation is on the horizon. If your records are spread across departments or platforms, involve IT early to avoid delays. A proactive and thorough approach prevents last-minute scrambles and overlooked evidence.
4. Line Up Experts Sooner, Not Later
If you’ll need expert testimony — on technical issues, industry standards, or damages — start the search early. Experts who get involved at the outset of litigation can help shape discovery requests, ensuring you gather the data they’ll need to support their opinions.
5. Discovery Should Be Comprehensive and Vigorous
Minimal discovery doesn’t save money and can be is a costly mistake. Develop a targeted plan with counsel to push for key evidence, and adapt your strategy as new facts emerge. Strong discovery not only builds your trial case but also strengthens your settlement leverage.
6. Don’t Forget Non-Party Sources
Vendors, former employees, and other third parties may have vital information. Identify them early and, with counsel, send subpoenas as needed. This can uncover valuable evidence and signals to your opponent that you’re fully prepared to go to trial.
7. Consider Mediation and Settlement Talks
Preparing for trial doesn’t mean rejecting settlement. On the contrary, your thorough preparation will enhance your negotiation posture. Consider formal mediation when it serves your goals — with trial readiness as a bargaining chip.
8. Plan the Trial Logistics
If the trial is out of town, arrange travel, accommodations, and any required tech in advance. Decide whether to have a company representative at counsel’s table — a presence that underscores your investment in the case. This sends a strong message to the court and your opponent about your commitment to the case.
The Bottom line:
Even if settlement seems likely, trial preparation from day one gives you the strongest possible footing. You’ll avoid being caught off guard, preserve leverage, and protect your company’s interests every step of the way.
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