For individuals and companies facing the prospect of litigation related to intellectual property theft, claims of unauthorized IP use, or business disputes, Pre-Litigation Counseling is one of the most important steps they can undertake. Pre-Litigation Counseling can save precious time and money, plus help involved parties avoid public scrutiny.
“Intellectual property law is complicated—so, too, is business law,” explains Eric Ludwig, whose California-based law firm, Ludwig APC, specializes in intellectual property, data privacy matters, and business litigation around the globe. “Litigation, or even the threat of it, can be catastrophic for businesses and individuals, resulting in lost revenue, missed opportunities, competitive disadvantage, and business stagnation.”
Pre-Litigation Counseling is a formal process that involves a thorough assessment of the dispute so the merits of the case can be fully understood. During the Pre-Litigation Counseling process, the goal is to explore the nature of the dispute prior to involving the courts, weigh the efficacy of various approaches, set expectations, and determine appropriate next steps.
“Not all cases need litigation,” says Ludwig. “Every case is unique, which means each requires a unique approach to achieve desired results. Our job is to help clients either assert their rights or defend against claims and navigate what can be an extremely expensive, very time consuming, very complicated process.”
According to Ludwig, even the simplest of patent cases when taken to jury can cost millions of dollars in out-of-pocket costs in attorney time, court fees, and expert witness fees. “Even then there’s no guarantee it’s over,” he says. “Is there an appeal? Probably, and we can help with that, too.”
How It Works
In the Pre-litigation process, lawyers for one of the parties . . .
- Collect pertinent information, including documents, testimony, and relevant records
- Reach out to the other party or parties, seeking additional information and records
- Investigate the details of the case
- Assess the overall merits of the case and provide guidance to their client regarding next steps.
What to Expect
While, recommended steps and alternatives can vary greatly depending on specifics of a case and findings, generally, lawyers will recommend one or more of the following actions take place:
- Request additional information or further investigation, often from expert witnesses, investigators, and others central to the case
- Make a formal demand, often in the form of a letter, for the other party drop the case
- Push for settlement of the dispute out of court
- Reject an already-made offer or seek to renegotiate it
- Make a counteroffer
- Request a formal, third-party mediation process to settle the dispute and/or negotiate a settlement
- Pursue litigation, with the goal of winning.
“It’s a rare business owner who takes the time to explore ‘what it’s going to take’ to prevail prior to litigation, which is really quite surprising since pre-litigation counseling often opens new opportunities for success that weren’t previously considered,” explains Ludwig. “When faced with complicated, high stakes, bet-the-company litigation, you want an expert on your team, someone like Ludwig Law, with a track record of success dealing with all aspects of business, technology, cybersecurity, and intellectual property law.”