Corporate Governance Links
Litigation: Tactical Positioning and Ultimate Alternative
"For with wise advice thou shalt make thy war: and in the multitude of counsellors there is victory."
— The Sayings of Solomon (Proverbs); Chapter 24, Verse 6
|When all other methods of resolving disputes between parties fail, resort to resolution by trial is the last, most costly and ultimate escalatory choice that a person can make. The specter of potential litigation is an unfortunate, ever present reality of living and conducting business in our modern society. Regrettably, too, it is a beast that is fed by clients, judges, legislators and lawyers alike who speak without listening, are incapable of perceiving, let alone accepting, their own culpability for a problem, and who choose to view the situation only in terms of their own wants, fears and needs rather than in terms of the larger picture of man’s dependency upon and need to get along with his fellow man.
|Yet with the guidance of seasoned and enlightened counsel, the difficulties and foreboding nature of this process can generally be minimized and put into proper perspective. Most litigation, outside of capital criminal matters, truly are not life or death concerns. Ultimately, these disputes involve only money; and money has no feelings or pride. “It would be foolish for me to advise a client to invest $15,000 to $20,000 in counsel fees to litigate a matter whose best case for recovery would be $25,000,” advises Mr Wise. “That is why in such situations I try to get my clients to see that ‘it’s not the principle, it’s the money of the thing.’ One cannot proceed with litigation with the expectation that the other side will concede early and so costs will be minimized. Once you go forward with litigation, you are taking the dispute resolution process out of your hands and putting it in the hands of third parties. And in doing so, the process takes on a life of its own. It’s like dancing with a gorilla. It’s easy to start, but you can only stop when the gorilla wants to.”
Strategy Well Beyond the Courtroom
Most clients understand the critical nature of creative and sound strategy during the trial itself; but concise planning and a litigation strategy formulated well in advance, often plays a far greater role long before “the dogs of war” have been unleashed.
Just as European powers through the nineteenth century viewed war as just another instrument of diplomacy, so in most civil disputes the threat of litigation alternative can be an effective incentive to bring the other party to the settlement table. Counsel’s choice of jurisdiction, venue, parties, press releases and timing of the lawsuit are all important factors in assessing the impact of the litigation salvo. The key, however, is for such tactics to be used judiciously and for the threats to be “credible.”
The Essential Elements Lawyer Credibility
The credibility of the litigation threat turns upon two key factors: the skill and practicality of a lawyer’s legal judgment and the lawyer’s and reputation within the trial community and the courtroom. The first element is a “common sense” type of test. The claims brought or threatened to be brought must sound, believable, proper and restrained. Extravagant demands and far-fetched theories that strain credibility are easily dismissed as frivolous. By drafting claims and demands in detailed and well founded terms, a party also maintains a “moral high ground” that at the very least puts the other party at a psychological disadvantage in both his own mind and in the mind of those who ultimately will determine the facts.
The second element is less known to laymen. Most lawyers fall into the category of “litigators;” that is, those who may be comfortable with discovery proceedings and even motions, but who do not have the same comfort with proceeding to trial. The second category is comprised of those who are real “trial lawyers.” This latter type, love the smell of the courtroom in their nostrils and the sting of battle and they convey to the other side their desire to “get to a jury.” It is this latter approach that is most cost effective for the client and usually achieves the best results for the client: for the trial lawyer minimizes the wasteful side shows that are a part of most disputes, and instead focuses his time and efforts on issues crucial to a resolution, a she focuses on the issues which must be proven at trial. The “litigator” will grow increasingly uncomfortable with the specter of a real trial bearing down on him. When both counsel are of the “trial lawyer” type, both have a good sense of what the end is likely to be, and thus they tend to “flip their card over” to bring a case to its likely, fair compromise. Equally important is the lawyer’s reputation among his peers. Lawyers who often make threats but fail to follow up on them are ignored until they do so. Similarly, “table-pounders” are dismissed as “barking dogs who never bite,” more concerned with establishing their presumed toughness to their client than on winning the other party to their side.
A Selfless Empathy for Human Nature
No matter how reasonable a settlement might be, there are times extraneous factors often cause an adversary to choose an irrational course. The most skilled lawyers understand this, and seek to conduct themselves in a fashion that does not permit them to be drawn in to such distractions, while endeavouring to find additional, non-substantive concessions that will allow the other party to save face, and thereby settle with honor. “There is an old gypsy curse,” Mr Wise tells his clients, “that states ‘May you have a lawsuit and be right.’ That is why to the greatest extent possible we try to follow Lincoln’s wish that lawyers should “discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man.”
Whatever the matter or the complexity of the parties’ relations, Mr Wise and his colleagues provide a team of seasoned trial lawyers and support team that will serve as skilled and practical partisans, taking up the gauntlet on your behalf, adeptly presenting your case to its best conclusion, whether it be before a state or federal judge, jury, or administrative agency.