Clients often discuss with me their commercial or personal disputes and add with a relish “I am going to sue them for all the bad stuff they’ve done, and teach them a lesson.”
Sometimes, they add the kicker, “It’s not about the money.”
As we know, of course it’s about the money.
In my role as a business lawyer, I steer clients away from litigation. I adhere to the Yiddish proverb that “a lean settlement is better than a fat lawsuit.” When a dispute arises, I see my role as a business counselor, as a consigliere. My first role is to explain to clients the problems with litigation.
The first, of course, is that it’s very expensive to prosecute a lawsuit . The issues that have to ruled upon won’t even arise until there’s hearings on motions asking whether the Court can even hear the dispute, or whether certain procedures have been followed. Each motion is supported by legal research contained in the lawyer’s brief. Motions are costly too, and the parties must wait for the Court’s decision.
Second, is the fallacy that there’s a “slam dunk” cases. Fact is, you never know who is going to prevail in litigation. There is rarely such a thing as a “slam dunk” in Court. There are many variables that can happen in any litigation. Seldom is a case in Court that is so one-sided, good person vs. bad person . There are usually some factual issues that are at the root of the dispute which need time and effort to ferret out.
When litigation cannot be avoided, my role for my clients has been managing the litigation from a business risk standpoint. I oversee the legal team that has been hired from the vantage point of protecting the company. If my client is a defendant, it’s crucial for me to alert them to know when it may be a good time to discuss settlement. The business people have a business to operate, and cannot commit the time necessary to go through all the papers and tp deal with the hired legal team directly.
As you can tell, I’m not litigation-adverse, but I see litigaton as a war that very few people in a commercial or personal dispute have the stamina, personality, and wallets to endure. For those who have the necessary temperament and funds, I assist in terms of providing business advice regarding the ongoing litigation.
