Successfully Litigating Multi-front Wars | USA
Stephen Larson and Hilary Potashner, of Larson LLP, discuss evidentiary concerns and strategic approaches to representing clients who are facing criminal charges while defending their financial interests in high-stakes civil actions.
Stephen Larson
Ranked in Litigation: White-Collar Crime & Government Investigations in Chambers USA
Horizontal and Vertical Multi-front Litigation
Multi-front litigation can be divided into vertical and horizontal types. Horizontal multi-front litigation involves multiples cases of the same type – for example, a criminal case in multiple US states or before both state and federal courts. Vertical multi-front litigation involves multiple cases of different types – for example, a regulatory, civil and criminal action all simultaneously pending.
“Of course, you can certainly face both horizontal and vertical multi-front litigation.”
It is necessary to deal with different jurisdictions, different enforcement authorities, and different parties.
Key Challenges When Representing Clients in Simultaneous Civil and Criminal Actions
One thing to bear in mind is the pacing. Often a criminal case will proceed faster than a civil case, and a regulatory or administrative action faster still. This presents unique challenges in discovery: on the civil side, the pros and cons of moving forward with written discovery and depositions; and, on the criminal side, the right to a preliminary hearing.
One of the most difficult aspects of pacing is that often the attorneys involved do not control the timing. Being able to predict and identify potential litigation before it unfolds is a huge part of the value that an experienced attorney offers.
Another fundamental issue is the dramatically different rules governing discovery in civil cases as opposed to a criminal case or administrative matter.
Whether to Invoke the Fifth Amendment?
The distinction between state and federal cases is of particular importance because defendants in California have an absolute right to invoke their Fifth Amendment rights and not answer any questions that might impinge on those rights; such refusal cannot be used against the client in criminal or civil court. In federal court, however, exercising the Fifth Amendment can lead to an adverse inference being drawn.
The Importance of Taking a Global Approach
Not every case needs to be viewed in global terms. Where there is a risk that a matter will develop into multi-front litigation, it is vital to develop a strategy upfront that will achieve global resolution of these risks.
Expertise in all the different ways in which cases can develop, combined with a client-centred approach that apprehends all the relevant details, is required, both to offer the best advice.
“It’s a partnership. Clients must understand all the different risk factors involved. They do not want to face a surprise.”
Larson LLP
