In an article published in the May issue of the Association of Corporate Counsel’s ACC Docket, national engineering firm Simpson Gumpertz & Heger Inc.’s Beverly Tompkins, along with our attorneys Judah Lifschitz and Laura Fraher provide tips for avoiding litigation, such as mitigating risks through contractual provisions. “Litigation often can be discouraged by contractual provisions that predetermine the scope of liability or shift the risk of pursuing litigation, such as requiring one party to pay the others’ fees and costs,” they write. “Cure provisions, indemnity and hold harmless provisions, exculpatory provisions, liquidated damages provisions, and provisions that either waive or limit a party’s liability for certain types of damages (i.e., a consequential damage waiver) or for certain actions (i.e., a waiver of liability for negligent acts) or limitation of liability provisions can all serve to limit or eliminate a party’s liability.”
Additionally, the authors encourage legal departments to establish preventive measures. This includes having a risk management program in place that promotes early detection and resolution of a potential legal problem. “Depending on the industry, internal controls and training on avoiding litigation can also help mitigate risk for small uninsured firms,” they say. The authors also stress the importance of strategy when avoiding litigation. “Dispute resolution is like a game of chess. To be successful, you must see the entire board, anticipate your adversary’s approach, and plan your moves. As soon as a dispute arises, conduct a big-picture evaluation of your issues and develop a strategy to get from beginning to end.” For the full article, click here.