The highest-leverage disputes—like regulatory or creditor challenges to transformational corporate and financial transactions—come at significant risk to a business. Multiple stakeholders scrutinize the strategic and tactical decisions made at this critical time, and there are financial and reputational implications that, if not handled correctly, can come at a significant cost for the company and its shareholders.

Defending these high-stakes cases is not one size fits all, but outside and in-house legal teams may take certain steps to minimize the legal and business risks: presenting a cohesive and simple narrative both inside and outside of the courtroom; developing strategies to confront challenging documents in discovery; selecting the right corporate witnesses to represent and be the face of the company; and navigating multiple proceedings to strategically place the company in the best position to win.

Simple and Coherent Narrative

An essential element in reducing the risks associated with these high-leverage disputes requires that counsel present a coherent and simple narrative of the case. To create the strongest opening and closing statements, and effectively structure the presentation of evidence during the trial, counsel should try to limit their case to no more than three salient case themes that can be easily understood by a jury or judge. These case themes should be developed carefully with the company and its witnesses, and with a deep understanding of the companies’ business, its goals, and its reasons for the conduct called into question. The themes must also align with the legal and factual framework in the case.

Part of presenting a coherent narrative includes managing the media/press to ensure that your narrative remains consistent both in and out of the courtroom. It is important to develop a media strategy for the case, which can include anticipating how a client may be a target for negative press and whether the other side would use the press to their advantage. Companies should consider assembling an in-house team to work with outside agencies to manage communication and mitigate any effects of negative testimony that may come out at trial. Companies may also consider having an on-site PR team in court to help answer and address questions, or provide clarifications about what may be happening during trial. Keeping a pulse on the public and media perception of the company can be critical during high-stakes trials.

Identifying the Right Corporate and Third Party Witnesses

Witness testimony is a part of all trials, especially high-leverage disputes that go to the core of a company’s business. For example, testimony of corporate executives is crucial in price-fixing cases brought under the antitrust laws because they often turn on circumstantial evidence of whether there was an agreement. By way of further example, testimony of corporate executives is critical in merger challenges that turn on the business rationale for the merger and market dynamics.

Counsel should think carefully about which executives should take the stand and who can speak to the company’s business decisions in simple and understandable terms. Any executive representing the company should be relatable, personable, and humble and must be capable of withstanding rigorous cross-examination. Corporate executives are used to boardrooms, but the courtroom is different. What makes the courtroom environment particularly challenging is the fact that corporate executives must keep in mind both the audience in the courtroom—judge or jury—and out of the courtroom—customers, investors, and the media. In addition to being aware of their audience, corporate executives must also balance telling the company’s story without revealing confidential or proprietary company information.

Cross-examination presents another unique challenge for corporate executives, as they must be prepared to withstand examination by opposing counsel. Cross-examination provides the examiner with greater control, making it difficult for executives to tell the company story the way they understand it. It is imperative to prepare corporate executives not to become defensive, but to stay even keel during cross-examination to maintain credibility with the court. With all of this in mind, preparation and rounds of practice are key.

While third parties are sometimes an afterthought, they can be valuable in advancing your narrative during a trial. Third-party witnesses can fill evidentiary gaps in your case, and can be viewed by the trier of fact as credible because they are believed to provide unbiased information. Third-party witnesses can confirm or provide unique information that supports your client’s theory of the case.

Since the location of a proceeding can affect the availability of third-party witnesses at trial, counsel sometimes chooses to call a third party witnesses by deposition designation. Careful consideration should be made to determine whether calling such a witness by designation is the best strategic choice, or whether there are avenues to bring the witness live or by remote testimony. Since COVID-19 pandemic, remote testimony has become more prevalent in courtrooms across the country. Calling witnesses remotely may be more compelling than by deposition designation, but when credibility is a key component of a proceeding, counsel should consider the possibility of obtaining the witness testimony live to provide the trier of fact an opportunity to assess.

Confronting Challenging Documents and Discovery

Every case has its share of challenging documents and a strong command of the documents can mitigate any surprises that may come during trial. To the extent it is possible, it is important to confront those documents head-on in your case by explaining the context around the challenging documents, which can often take the teeth out of them. In some cases, the documents may be used to advance your own narrative because there is rarely ever a smoking gun in litigation. Litigants should take care not to bring attention to challenging documents by unnecessarily objecting to its use, which tends to place an undue emphasis on the document and signals to the trier of fact that you may be concerned about the document. If there is not a strong legal basis to challenge a document, counsel should avoid making unnecessary/unfounded objections at the risk of confusing the jury or tipping off the judge.

Choreographing Parallel Proceedings

Parallel proceedings multiply the risks for businesses that already present in high leverage proceedings. When faced with parallel proceedings, counsel should assess the scope of the remedies that are available in each jurisdiction. A decision in one proceeding can have implications in other proceeding. Therefore, counsel should think strategically about the case schedule to ensure that the proceeding that poses the greatest risk is litigated first.

Reprinted with permission from the December 13, 2024 edition of the NEW YORK LAW JOURNAL © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - reprints@alm.com