Getting Litigation Out of Litigation (Perspective)

Editor’s Note: The author of this post is a Boston-based litigator.

One thing they don’t teach you in law school is how much time as a litigator you spend talking people out of litigation. Like many practical facets of lawyering, it is a skill that litigators must learn for themselves. But it can be, oddly, crucial to their success — and to the success of their clients.

Most non-lawyers with a legal dispute come to a lawyer ready for a lawsuit. They have been wronged. They are, understandably, upset. They want the affirmation of a court victory, and they are convinced that a judge or jury will make the other side pay.

They start the process expecting — seeking — their day in court.

The challenge is that litigation is not for everyone. Most non-lawyers do not understand just how imperfect a dispute-resolver the legal process can be. They do not realize how much “process” there is in the legal process. They do not appreciate that their day in court may actually require hundreds of days, almost none of them in court. They cannot imagine the countless hours (and dollars) that may be spent building the case or addressing technical and procedural issues. They also, often, cannot imagine losing.

Of course, some clients have no choice. They do not seek out litigation; litigation seeks them. (We call those “defendants.”)

Moreover, many disputes simply cannot be resolved without the framework that a lawsuit provides. Litigation presents an arsenal of dispute-solving tools: discovery, a neutral forum, rules, deadlines, forced cost-benefit analyses, a disinterested arbiter …. And the legal system is always (or almost always) preferable to the self-help that, ironically but inevitably, leads to more legal entanglements.

In other words, to paraphrase Winston Churchill, litigation may be the worst form of dispute resolution — except all the others that have been tried.

Ultimately, litigation, like much else, is about picking your battles. As in any other type of campaign, you cannot go into a lawsuit without a roadmap to success. If you cannot identify that path, you have to figure out how to get your client where the client needs to go without the courts to get there.

That is not simply a matter of formal alternative dispute resolution. It is Problem Solving 101: What is the client’s ultimate goal and what is the best way to achieve it. When that way is not litigation, a litigator needs the creativity and confidence to craft an alternative strategy, and the charisma to communicate it effectively to the client.

After all, sometimes the litigator who litigates best is the litigator who litigates least.