This article originally appeared as a Gavel to Gavel guest column in the Journal Record on October 2, 2025.
Austin T. Ray – Click to visit profile.
By Phillips Murrrah attorney Austin T. Ray
The Temptation to Wait
When a dispute arises, many executives hope it will blow over. A demand letter arrives, an employee threatens a claim, or a vendor raises the prospect of litigation, and the instinct is to “wait and see.” But in court, delay is rarely neutral. It can strip businesses of defenses, shift leverage to the other side, and create costly evidentiary problems.
Consider the company that sets aside a demand letter, only to be sued months later. By then, deadlines have passed, key communications may have disappeared, and the case is harder—and more expensive—to defend.
Lost Defenses
One of the most common costs of delay is the waiver of defenses. Jurisdictional challenges and affirmative defenses must often be raised early in proceedings. If a business does not act quickly, courts may rule those defenses waived. For instance, in determining whether a party has waived a contractual right to arbitration, Oklahoma courts consider that party’s conduct during litigation, including its delay in raising the issue. See Howell’s Well Serv., Inc. v. Focus Grp. Advisors, LLC, 2021 OK 25, 507 P.3d 623 (adopting the Northland factors). Even before a lawsuit is filed, silence in response to a demand can embolden the claimant and make early resolution more difficult.
Missed Opportunities
Delay also limits a defendant’s options. Early in a case, defendants can sometimes move to dismiss weak claims or seek summary judgment on threshold issues. A company that fails to promptly investigate may lose the chance to narrow the scope of litigation from the outset—before bearing the brunt of hefty discovery costs. For businesses, inaction often means a longer, more expensive fight.
Evidence Problems
Defendants also bear the burden of preserving relevant evidence once litigation is reasonably anticipated. See Barnett v. Simmons, 2008 OK 100, 197 P.3d 12, 20. Emails are deleted, texts disappear, and employees move on. Courts may sanction companies for spoliation of evidence. Id.; see also Koch v. Koch Indus., Inc., 197 F.R.D. 488, 490 (N.D. Okla. 1999). Oklahoma’s jury instructions even authorize a judge to instruct the jury to assume missing evidence would have been unfavorable—a devastating blow to any defense. See also Akins v. Ben Milam Heat, Air & Elec., Inc., 2019 OK CIV APP 52, 451 P.3d 166, 175–76. A litigation hold is not complicated: it can be as simple as instructing employees not to delete emails or texts, suspending automatic deletion policies, and working with IT to secure backup data.
Insurance Coverage at Risk
One often-overlooked step is notifying insurers immediately. Many liability policies require prompt notice of potential claims, and delay can jeopardize coverage that would otherwise fund the defense. Early communication with insurers can protect businesses from paying defense costs out of pocket.
Acting Early Without Escalating
Acting promptly does not always mean rushing into court. It often means:
- Engaging counsel to evaluate defenses and procedural options;
- Preserving evidence before it is lost or destroyed;
- Communicating with insurers to secure coverage; and
- Gathering facts through internal interviews and document reviews.
These steps do not escalate a conflict—they prepare a business to defend effectively if litigation proceeds.
The Executive Takeaway
For executives, the takeaway is clear: Delay is not a strategy. It hands leverage to the other side and undermines the company’s defenses. Litigation is unpredictable, but delay is one variable that businesses can control. The sooner a company acts, the more options it preserves, the less it spends, and the stronger its defense becomes.
About the author:
Austin T. Ray is a litigation attorney who represents individuals and both privately held and public companies in a wide range of civil litigation matters.
CONTACT: atray@phillipsmurrah.com | 405.606.4774
Visit Phillips Murrah on social media:
