February 20, 2013 Articles

Assessing Litigation Risks Before It's Too Late

By Lori B. Leskin

There is a well-known adage that "hindsight is 20/20." Often times, as we are in the midst of a litigation—and long-ago written company documents are being splashed across the screens in front of juries, and past decisions are being analyzed and questioned—that adage comes to mind. Faced with a multitude of "woulda-coulda-shouldas," we think about whether different decisions would have been made at the critical time if litigation issues had been fully considered as part of the analysis.

Risk audits—referred to here as litigation risk assessments—are designed to do just that. It is a way to put on a plaintiff's hat, to look at real time current data and try and predict just where the litigation risks lie. It would be wonderful if we could actually see ahead and know whether a product will actually end up in litigation, what injury will actually be at issue, and which documents will actually be selected by plaintiffs' counsel to show the jury. But risk assessments are not a guarantee. Rather, the process is one aimed at identification of risks, understanding the scope and nature of those risks, and determining whether any of those risks are in fact "reducible." 

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