Wednesday, August 16, 2006

Why I am a Litigator Who Tries not to Litigate

It may sound bizarre to say that I try not to litigate cases, but for most clients, going through litigation is incredibly stressful and expensive. Even if they have the right to recover their attorney's fees if they win their suit, these are not guaranteed, and recovery may be difficult.

Settling disputes is usually preferable for a number of reasons:

1. Parties are more likely to comply with agreements that they create, as opposed to a decision handed down by a judge (studies have shown this).

2. Litigation can take years, and money now is frequently better than money later.

3. Even if one obtains a judgment, it may not be collectible.

4. Dragging out a dispute through litigation means it stays a part of your life for a very long time.

5. I have lost cases I should have won, and vice-versa.

6. Litigating a case can be like playing the lottery.

That said, one should not start a case without being prepared to see it through. Clients need to know that there is frequently a flurry of activity in the beginning when a chunk of money is expended, then discovery (the exchange of information and documents) takes place and can be quite costly (a deposition alone can cost over a thousand dollars), and finally, there is extensive preparation for trial.

There may also be numerous motions along the way (for real estate attachments, to eliminate evidence, etc.). Clients often do not understand the amount of time and effort it takes to prepare these motions and are shocked by the price tag.

My approach to a claim is to break it down into phases and re-evaluate on a regular basis. A simple demand letter and the response can say a lot about how a case is going to proceed.

When clients want me to "go for the jugular," I will, but unfortunately, there are few who are willing to fund such an endeavor. In fact, the clients who are frequently the most agressive, or who make decisions based on their emotions, are the ones who do not want to pay legal fees.

So, if you do end up in a dispute, ask your lawyer for an overall assessment of the process and the potential for recovery. Find out about the cost for each stage of the process. Do not get so caught up in the principle that you lose sight of the possible results. After all, most claims come down to money, and for that reason, decisions should be made on an economic basis.

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