No local government employee or official is more familiar with the litigation process (and its toll) than the local government lawyer, whose role is to counsel and advocate on behalf of the local government unit. A sampling of municipal and school board attorneys shared what they “wished their clients knew” about litigation. Their astute responses to that question follow. (Some may offer valuable life lessons, too.)

Legal Risk Assessment

At the earliest sign of a threatened or pending lawsuit against the local government, the local government lawyer will take steps to evaluate the unit’s legal risk. Typically, the attorney will assess the veracity of the allegations against the local government and, ultimately, the client’s potential liability, through records review and informal interviews with relevant officials and employees. Local government staff and officials are often called upon to assist in this assessment phase.  

• “Inform your lawyer [about a lawsuit] right away[!]” Also, “[i]nform your insurance carrier right away. Depending on the nature of the lawsuit, it may be the insurance carrier that selects your defense attorney and handles all litigation.”
• “Don’t ignore a lawsuit that seems silly or without merit because a process must take place to handle it.”
• “Anyone can sue [an individual] or the municipality, but it does not mean the case will survive . . . . we will get through this together.”

Risk Mitigation

One of the best defenses against liability is risk mitigation. Risk mitigation strategies aim to reduce the likelihood that a local government will be held legally responsible in a lawsuit. Common strategies in the local government context include employee training as well as developing and implementing policies and procedures to mitigate liability.

• “The question of ‘can we/I be sued for xyz’ is the wrong question to ask. The answer is always yes, you ‘can’ be sued for almost anything. The more important question to ask is ‘if we do X, will it make it more likely we get sued and/or more likely that we have a risk of liability if we are sued.’ There is nothing that people can do, including lawyers, to completely avoid a lawsuit. But the real goal is to mitigate liability as much as possible.”
• “Follow existing policies and training that you’ve been provided.  These policies and training give you the knowledge that you need to make sure you’re following what the law requires in a situation.  Policies have often been crafted because of problems in the past, so following your policies will help keep you out of hot water.”
• “Ask for help if you’re uncertain. Ask your supervisor, your colleagues, and others who have dealt with the issue. If the matter involves a legal issue, call [the local government attorney]. [Attorneys are there] to help you make hard legal decisions and to take the heat when you follow our advice. (There’s even an ‘advice of counsel’ defense out there).”
• “If you have enforcement tools that document your actions, use them.” In the case of law enforcement, “turn on [a body-worn camera] if it’s issued to you. Take pictures. Write detailed and thorough reports or memoranda to your file. Keep thorough notes and document what you said and what the other person said and did. Reports should be fact based and objective, not emotional. No drawings, snide remarks, or other extraneous information should appear in any report, or in any text, chat, email, post, or other communication of any kind. All are almost certainly public records if they’re related to work—and will be sought in litigation. A snarky text you sent right after the conflict might later undermine your position.”
• “If you make a mistake, tell your supervisor about it immediately. Damage control often avoids a lawsuit or lessens the harm from a mistake. Having admitted the mistake to your supervisor enhances your credibility in any future litigation.” 
• “Anger impairs judgment. While you can’t control how the other person reacts in a difficult situation, you can control your own behavior even if it’s hard to do. Taking the high road will pay off in any future litigation.”
• “Treat people with respect. Courtesy and respectful treatment lead people to find a collaborative solution when a mistake happens—or not to assert a claim at all.”
• “Always tell the truth. Nothing good ever happens when an employee fudges or omits embarrassing facts. [The lawyer] can deal with less than perfect interactions when [they] get to Court. Dealing with something that a jury thinks is a lie is nearly impossible.”
• “Remember that you work in a fishbowl and that everyone has a cellphone and will record you—and may have a right to make that recording.”
• “Beware adrenaline. Beware temper. Beware ego. All can get you in trouble. Exercise professionalism, compassion, and empathy even when you’re delivering bad news to someone (like making an arrest).”

Discovery

Discovery is the pre-trial process for gathering evidence from the other parties. Each party is generally required to produce, upon request, any relevant documentation or other evidence within its possession, custody, or control (including that of its employees, officials, and contractors). The preservation and retention of relevant documentation and evidence is essential. Common tools of discovery include subpoenas, interrogatories, requests for production and admission, and depositions.

• “E[lectronic] discovery will [capture] all emails and text messages even tangentially related to the matter. Rule: Don’t email or text it if you don’t want it [used against you] at trial. Corollary to the [r]ule: Sarcasm doesn’t work in print or in court.”
• Discovery in a lawsuit will “likely” include “access to personal social media.”
• “When your lawyers say they need all documents, or all documents about xyz, they mean all documents. There are very few things that make [litigation] messier than when staff try to curate what documents they should share. We understand it is usually well-intentioned, but as lawyers we are well-versed in sifting through batches of documents to find the stuff we really need.”
• In a small attorney’s office, “maintaining the same workload with an active lawsuit is very difficult when considering the requirements to manage civil deadlines and the discovery process.”
• “Discovery and public records requests while similar have different standards and expectations.”

Hearings & Trials

Throughout the litigation process, the parties may present arguments and evidence to a judge at a formal court hearing in order to resolve a specific issue. If the parties do not settle the case and the case has not been resolved through a motion, the case will be scheduled for trial. Local government officials and staff may be called upon to present evidence or serve as a witness at trial. A jury trial typically includes the following phases: jury selection (voir dire), jury instructions, opening statements, witness examinations (direct examination, cross-examination, and redirect examination), objections, closing arguments, a second round of jury instructions, jury deliberations, and verdict.

• “Resist the urge to fill the silence. When you are being questioned, deposed, or on the stand [at trial], only answer the specific question you are asked. Do not fill the (uncomfortable, sometimes awkward) quiet that follows your answer with more explanations. Let them.” 
• “A hearing may take two to three hours, but it will often take weeks [or months] of work and preparation before the hearing ever happens.”
• “Be nice to the clerk of court and trial court administrator. They can help you navigate local rules of procedure and much more.”

Media

Media coverage, whether through formal news outlets or social media, is another reality of modern litigation. Local government officials and staff should anticipate media inquiries about pending litigation and be prepared to respond in whatever way is most prudent (e.g., directing all questions to counsel or a communications officer, reporting to a supervisor, etc.).

• “When asked about the [litigation] matter by the press or public, DO NOT say ‘no comment.’ [It] [s]ounds guilty. Instead, say ‘We’re referring all questions on this to our attorney.’”
• In suits against the local government, “[t]he [plaintiff] will have a much higher propensity to make public statements or solicit the media than [the local government], especially in police use of force cases.”

Outcomes

Very few civil cases are ever tried. At any time, the parties may attempt to settle the dispute through methods of alternative dispute resolution such as negotiation, mediation, or arbitration. Under a settlement agreement, typically one party pays the other party some amount of money and the parties release claims against one another, thereby forgoing a lawsuit. Some settlements may also include terms that do not involve monetary payments.

• “[J]ust because [a local government] think[s] [it’s] in the right, doesn’t mean a judge will agree . . . [T]here are no guarantees.”
• “Most lawsuits result in negotiated settlements. Be prepared to compromise on some issues.”

I couldn’t have said it better myself. My heartfelt gratitude to the local government attorneys who generously provided their sage advice for this post. These lessons and others are included in a civil litigation guide intended for non-attorneys in local government. That guide is available to access or download (at no cost) at this link: “A Civil Litigation Guide for Non-Attorneys in Local Government.”