07 Feb Litigation May Be Undesirable, but the Process of Avoiding It May Be Worse
Most of the time, litigation is considered a last resort, largely because of its cost and the fear of a loss before an unsympathetic judge or jury. Although there are usually good reasons to avoid litigation, approaching a dispute in fear of litigation usually results in a poor outcome. It is usually better for a client to plan for litigation at the outset than to be hurt by going out of the way to avoid litigation.
When a client encounters a dispute, from a vendor not performing good service, a customer not paying a bill, or an employee making a claim, many clients engage in endless communications to resolve a dispute, experience angst in fretting about the dispute, and solicit advice from varied consultants on what to do. Often, this process is just a waste of time. After spending significant time communicating with an adversary, fretting about the dispute and receiving advice from varied consultants, the client must still file (or defend) litigation. Sometimes, the process of avoiding litigation backfires. The endless communications can result in unnecessary admissions by the client, the significant angst can weaken a client’s resolve, and the consultations with varied advisors can result in conflicting/erroneous opinions.
A better approach is for a client to discuss with a trusted litigator, at the outset, how best to resolve a dispute. Litigation may not be a foregone conclusion if the client communicates properly with an adversary. Where litigators are involved at the outset, they can ghost-write the emails to adversaries not represented by counsel, thereby protecting the client from making unnecessary admissions while securing favorable evidence. Litigators can give the client confidence through a coherent strategy, avoiding the angst that will test a client’s resolve and eliminating inconsistent messaging from varied advisors.
Involving a litigator from the outset also helps position a client. Endless and unguided emails from a client may look like desperate moves to avoid a dispute. If the time spent on endless communications is shifted to one or two decisive communications followed by the filing of lawsuit – either claiming damages owed to a client or seeking declaratory relief for the client’s non-liability – the client may be placed in a stronger negotiating position.
If a litigator is a trusted advisor, the litigator should speak to the client about all the downsides to litigating. A litigator should provide reasonable guidance on the client’s likelihood of success and estimated costs of litigating. Such guidance will inform the client on a rational compromise.
Litigation may not be desired in most instances, but the whole process of avoiding litigation may make litigation more likely and result in a less favorable result.