When good juries go bad.

Juries usually get it right, but not always. As long as a jury verdict is within the range of conclusions a reasonable jury could make, a judge will not overturn the decision. If a jury verdict is not one a reasonable jury would make, the judge can override the jury. That is what happened in the Madden NFL video game lawsuit discussed last year. The jury awarded the video game designer millions of dollars in damages, but the judge overturned the verdict because there was not sufficient evidence for the verdict.

Former football players' concussion lawsuit against the NCAA.

The student-athlete likeness antitrust litigation is not the only high-stakes case the NCAA is facing. In July 2013, the plaintiffs in a concussion lawsuit against the NCAA filed a motion for class certification. The requirements for class certification have been discussed in another post.

The concussion lawsuit is under a stay (which essentially means a timeout), because the parties are hoping to settle. Simply filing a motion for class certification before a stay gives the plaintiffs leverage, because it provides the NCAA incentive to settle. If the NCAA does not settle while under a stay and the plaintiffs' motion for class certification is later granted, then the NCAA is in a much worse position for settlement. If the NCAA does not settle while under a stay but the plaintiffs' motion for class certification is denied, the NCAA is not really in any better position than before the ruling on class certification.

What is injunctive relief?

The most common remedy in a lawsuit is money damages. Everyone is familiar with this, because money is the basis for trade in our society. Sometimes, a plaintiff will request "preliminary and permanent injunctive relief" along with money damages. Injunctive relief, or an injunction, is a court order preventing a defendant (or other party) from doing something or enforcing rights it would otherwise have under law.

Preliminary injunctive relief is often requested in intellectual property litigation and high-dollar business disputes. In patent litigation, a plaintiff may request a preliminary injunction to prevent a defendant from selling infringing products that competitively damage the plaintiff's business. A plaintiff must show a likelihood of success at trial before obtaining a preliminary injunction. So, in high-stakes cases lasting several years, a preliminary injunction hearing can turn into a mini-trial, due to the possible business consequences of getting or not getting a preliminary injunction.

Injunctions are available even when money damages are not requested. Sometimes, standalone injunctions are the best remedy for preventing enforcement of a bad law or policy, because they can be obtained relatively quickly. You cannot get an injunction without notice to the other party and a hearing, but the whole process of getting an injunction can take a matter of weeks. Getting money damages can take years.

How to respond to a lawsuit.

So, you have been sued. You received the petition (in state court) or complaint (in federal court), and have a set number of days to respond. What do you do?

First, you will want to file a motion to dismiss or answer. To do either, you will need an attorney. A motion to dismiss is granted if the court where the lawsuit was filed does not have jurisdiction over the person or the subject matter in dispute, or if there is no set of facts on which the plaintiff would be entitled to judgment. Motions to dismiss are infrequently granted. An example of when dismissal is granted is when a legislator files a frivolous lawsuit for purely political reasons.

In conjunction with an answer, defendants regularly file counterclaims or third-party complaints. A counterclaim is what the defendant uses to sue the plaintiff for a claim arising out of the same transaction or events as the original lawsuit. A third-party complaint is what the defendant uses to sue a third-party for a claim arising out of the same transaction or events as the original lawsuit. Later, if the third-party brought into the lawsuit files suit against the original defendant, this is called a cross-claim. No matter how complex a case is, these are the basic options a defendant has in responding to a complaint.

Affirmative defenses are always included in an answer. If they are not, you lose the opportunity to argue them. An affirmative defense is a "yeah but" argument. It provides that even if the plaintiff's version of events is correct, the plaintiff should not be able to recover on his or her claim because of something he or she did or did not do.

Even though affirmative defenses are always in an answer, they are not always utilized to their full extent, because they uncommonly defeat a plaintiff's claim in its entirety. As a result, attorneys end up waiving their right to argue the defense because they proceed with litigation of the case.

Ultimately, when or if you are sued, one of the first things you should ask yourself is if an affirmative defense applies that would defeat the plaintiff's claim. I will discuss affirmative defenses in greater depth in a future post.

When is multidistrict litigation strategically advantageous?

I previously provided a primer on multidistrict litigation (MDL). Basically, MDL is appropriate when there are common questions of fact in two or more cases in different federal district courts. MDL consolidates the pretrial proceedings and places them in one forum. When the pretrial proceedings are complete, the cases are sent back to the courts from which they came.

MDL is a strategic consideration. In the paradigmatic example, a group of plaintiffs is not certified for a class action, and a corporate defendant tries to use MDL. In such a case, MDL is beneficial for both the defendant and plaintiffs, because it lowers litigation costs, and promotes efficiency and consistency. If the defendant's strategy is to delay litigation, which is common but ethically improper, MDL may not in the defendant's best interest.

Being "litigation-ready."

Litigation-readiness is a concept used by big companies that face multiple lawsuits at any given time. It means that a company is always prepared for litigation. When it arises, the company does not miss a beat in preparing documentation and prioritizing other tasks necessary to the litigation process.

Litigation-readiness is a good concept for small businesses and individuals to implement into their daily lives. Unfortunately, many people face litigation or threats of litigation at some point in their lives. It makes the process easier if you are prepared and can minimize the obstruction that litigation causes to your daily life. Being litigation-ready requires no drastic changes from your current lifestyle. It does not mean that you are willing to sue anything that moves. It suggests nothing about using the legal process offensively. But if you are a defendant or respondent in a lawsuit, litigation-readiness minimizes the stress and anxiety over litigation. Two of the most important things that you can do to be "litigation-ready" are:

• Use a calendar on your smartphone. Put important events in your smartphone and do not delete them after they have passed. Make sure that your calendar is backed-up on occasion, so if your phone breaks, your events are not lost. Past events, even if irrelevant, can rekindle other memories and help create a relevant timeline of events. If you do not have a smartphone, keep a calendar and write important events on it.
• Write stuff down, and get stuff in writing. If you are wronged and the person admits it, get them to write it down. They will be reticent to do this, but if they trust you, they may be willing to do so. This does not mean that you will sue them, but if something happens and you find yourself in litigation, written admissions are extremely powerful pieces of evidence. On the other hand, do not make an admission to someone else if you wronged them, unless you are prepared to write it down. If you do not feel comfortable writing it down, do not make the admission in the first place. This principle extends beyond written admissions: 100 percent of the time, written evidence is better than oral evidence.

Of course, there are other things you can do to be litigation-ready. These are just two of the most important.