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An apple a day keeps the doctor away, or so the saying goes—and the same principle holds true in municipal litigation. Most townships seek to avoid litigation where possible, but in some instances it is unavoidable—and knowing when is difficult to predict. When a lawsuit does arrive, the difference between a favorable outcome and a costly one is rarely decided in the courtroom alone—it is shaped by decisions made long before a complaint is ever filed, and by the discipline a municipality maintains once one is.

And just as there is more than one variety of apple, each suited to a different purpose, there is more than one tool available to keep litigation away, or to nurse the municipality through litigation when it inevitably does arrive. Reaching for the wrong tool at the wrong time rarely helps and sometimes makes things worse. This e-letter presents ten best practices, organized chronologically from the decision that precedes a dispute through the resolution that follows judgment, to help township officials reach for the right tool at each stage and protect their community’s position along the way.

BEFORE LITIGATION BEGINS

1. Build the Record at the Decision Stage

Municipal litigation regularly arises out of decisions made by townships, villages, or cities, particularly when land use decisions or enforcement actions directly affect residents or developers. This is especially true of quasi-judicial decisions that are made based on a record created by a planning commission, zoning board of appeals, or township board. When sitting in this special quasi-judicial setting, making sure a record is complete should be a priority every time. The record should include all information that can help the board or commission make a required finding of fact—that is, the specific facts, tied to your ordinance’s standards, that support the decision being made. In these situations, the required findings are set forth in the applicable ordinances within your community, and they should make their way into a resolution at the conclusion of the quasi-judicial process.

2. Call Your Attorney Before the Decision, Not After the Summons

We often hear from our clients that it is difficult to know when to consult us. We can provide some general rules and would recommend you call us when: a) someone brings an attorney with them to discuss an issue; or b) there is a matter of high public interest. But the truth is that it is difficult to know when a simple landscaping contract is going to turn into your next headache. What our experience tells us is that the expense you pay keeping yourself out of litigation is often the best investment a municipality can make. Therefore, call us whenever you question whether you should—even a quick conversation can avoid thousands in legal fees.

3. Recognize the Warning Signs and Preserve Documents

Litigation rarely arrives without warning, even when it feels sudden. Frequently, a municipality will receive a broad Freedom of Information Act (FOIA) request, an unusually detailed, written complaint from a resident, or a strongly worded letter from an attorney just before a lawsuit is filed. These are the early signs worth watching for, and a municipality that trains itself to notice them gains valuable time to prepare. When you receive a FOIA request touching on a decision, an employee, or a dispute that concerns you, consulting counsel before you respond will provide two immediate benefits. First, it will help ensure that you properly and completely respond to the request within the statutory deadline. Second, it will help you identify and preserve the documents that will be necessary if that lawsuit does eventually arrive. Municipalities that treat a broad FOIA request as routine paperwork, rather than as a signal, often find themselves scrambling later—and that scramble is far more expensive than the modest cost of a quick call to counsel when the request first lands on your desk.

4. Mind the Open Meetings Act and Privilege from Day One

In litigation, knowing procedural rules can be decisive. In municipal government, understanding procedural rules—like the Open Meetings Act (“OMA”)—can help you avoid money judgments. This is clearest when considering the purpose of the attorney-client privilege and the OMA. The attorney-client privilege is intended to keep communications private. The OMA promotes transparency in government. These two purposes are often in direct conflict, and municipal officials are regularly caught in the middle. The OMA allows for a closed session to discuss pending litigation (MCL 15.268(1)(e)) or material exempt from discussion or disclosure by state or federal statute, such as confidential legal opinions (MCL 15.268(1)(h)). But if a city, village, or township strays outside those exemptions, the “closed” session is really an open meeting violation waiting to be challenged.

5. Tender to Your Insurer Immediately—and Tender Broadly

When you receive a demand that hints at litigation, which is usually the last step before a complaint is filed, your first call after your attorney should be to your insurance carrier or pool. Most public entity policies define “claim” far more broadly than “lawsuit”—a demand letter, a notice of intent to sue, an EEOC or MDCR charge, or even a serious injury report can all trigger a duty to report. Waiting until a complaint is filed to tender is one of the most common (and most costly) mistakes a municipality can make, because late notice is a real and frequently successful coverage defense. Tender everything that could plausibly be a claim and let your carrier make the coverage determination.

It is also important to know that the insurer’s duty to defend is broader than the duty to indemnify, meaning that many claims that ultimately fall outside coverage for payment purposes still trigger a defense obligation. When in doubt, tender it.

WHEN LITIGATION BEGINS

6. Answer on Time and Preserve Your Defenses

Once a lawsuit is filed, the clock starts running, and some of your best defenses are lost for good if they are not raised in your first response. Governmental immunity, failure to exhaust administrative remedies, and missed appeal deadlines, such as the window to appeal a zoning board of appeals decision, are among the most powerful tools available to a municipality. A few of these survive even when they are not raised right away, but which ones do is a technical question no municipality should have to bet on. The safe practice is simple: every available defense goes in the answer.

It is important to rely on your attorney to make sure these defenses are raised. But if you obtained a defense from your insurance carrier, the attorney it assigns may not know the factual background and history of the claim—and that history is often where additional defenses come from. Make sure your municipality speaks up about the defenses it believes it has, whether through its general counsel or a designated liaison from the board or council.

Litigation, while lengthy and time consuming, has unforgiving deadlines. An answer filed late, or one that omits an available affirmative defense, can foreclose options that would otherwise have ended the case quickly and inexpensively. Coordinate with your attorney the moment you are served, not after the deadline has nearly passed, so that every available defense makes it into your answer.

DURING LITIGATION

7. Speak With One Voice

Litigation creates pressure on officials to explain themselves—to residents, to the press, to the board’s own members. Resist it. Statements made by individual officials outside of coordinated litigation strategy can become admissions used against the municipality, even when well-intentioned. They can also become fodder for awkward or “gotcha” deposition questions or points for cross-examination at trial. To avoid making these unforced errors, your municipality should designate a single point of contact, typically your attorney or a designated spokesperson, to field questions about pending litigation and direct board members and staff to route inquiries accordingly. A unified message not only protects the municipality’s legal position but also prevents the confusion and inconsistency that can undermine public confidence during a dispute.

8. Prepare Officials for Depositions

If your township, city, or village is a party to circuit court litigation, its officials can and often will be deposed by opposing counsel. A deposition is not the place to guess, speculate, or fill silence. The most important skill a witness can bring to a deposition is comfort with the phrase “I don’t know” or “I don’t recall.” Both are complete, truthful answers. Often, the alternative to them is guessing for the sake of appearing helpful, which can create inconsistencies that opposing counsel will exploit at trial.

Depositions are difficult because they prey on our natural, conversational tendencies. Therefore, you should happily meet with your attorney before any deposition to review the format, the topics likely to arise, and the discipline of answering only the question asked. And, when necessary, you should assist your attorney in getting others to comply with requests to prepare for their deposition; those who resist requests to prepare are typically the ones that need the most preparation.

9. Honestly Evaluate the Difference Between Cost and Principle

No one likes to be sued because no one likes to hear someone else say they did something wrong. But not every dispute is worth fighting to the last dollar. Likewise, not every dispute should be settled to save money. The reality of litigation can be reduced to one simple truth: litigation is expensive. A legally defensible position is not always a financially sound one to pursue through trial. At the same time, settling a case can invite the next five frivolous challenges rather than resolve the underlying problem. Have a candid conversation with your attorney about both the legal merits and the practical costs at each stage of the case, and revisit that conversation as the litigation develops. The decision to settle is absolutely your municipality’s to make, but your attorney can and should provide you with sound advice on the realistic merits of your defenses.

AFTER LITIGATION CONCLUDES

10. Finish the Job

A judgment or settlement is not the end of the process. If a court determined your ordinance was unconstitutional, study the reason and understand the impact. If, instead of deciding the constitutionality of your ordinances, litigation exposed gaps or ambiguities in the text of your ordinances, take those learned lessons back to your colleagues and fix them. Just as history is doomed to repeat itself, the same textual defect will generate the next lawsuit. Debrief with your attorney and, where relevant, your peers on what the case revealed. Litigation that ends without this final step often turns out not to have ended at all.

PRACTICAL TAKEAWAYS

An apple a day keeps the doctor away, and the same is true here: consistent, everyday habits do more to keep litigation away than any single heroic effort once a lawsuit lands. But just as there is no single variety of apple that suits every use—some are best for eating, some for baking, some for cider, and some barely worth picking at all—there is no single tool that resolves every dispute a municipality will face. Four rules run through all ten practices above, and a bite at each will provide the healthy habits you should live by to avoid or successfully navigate litigation: 1) involve counsel at the decision stage, not the lawsuit stage; 2) tender potential claims to your insurer immediately and broadly; 3) preserve documents the moment litigation becomes reasonably anticipated; and 4) speak with one voice once a dispute is underway. Municipalities that keep the full basket on hand, and that make a habit of reaching into it early rather than late, are better positioned not only to win the cases they must fight, but to avoid many of them altogether.

By Eric Conn and Nichole Gertsen

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.