In the movie Forrest Gump, the title character famously observed that “life is like a box of chocolates.” He continued, because “You never know what you’re gonna get.” Business litigation can likewise be like a box of chocolates for the same reason. While you may intend one result, you need to be cautious that something entirely unplanned for does not develop from you initial action.
Careful planning is always essential, there are many elements which you cannot control, and therefore must figure into your calculus before you embark on litigation. A recent discussion of the prospect of the University of Virginia suing Rolling Stone magazine for defamation after a story of rape at a fraternity turned out to be untrue.
While the allegations are inflammatory and potentially damaging to the organization, the viability of the lawsuit has been called into question. For one, defamation may not be an appropriate cause of action, as it is typically limited to individuals.
But what might be the even more worrisome element is what bringing a lawsuit like this entails and what it opens up. Discovery in civil cases in the U.S. is broad and expansive. The standard is anything that may allow the development of admissible evidence. This means the reach of written interrogatories or depositions may feel very intrusive and require substantial amounts of time and resources.
Many uncomfortable questions may be asked during a deposition, and for the majority, you cannot refuse to answer. If you have an employment case involving harassment, the type of questions could be very uncomfortable.
All of these issues need to be discussed prior to initiating litigation. It can be costly to begin the process only to decide that whether for logistical, strategic or personal reasons, you need to settle quickly.
Washingtonpost.com, “Suing Rolling Stone might be a ‘colossal mistake’ for the U-Va. Frat,” Terrence McCoy, March 24, 2015