Litigation and its Discontents

If you’re not a litigation attorney or a personal-injury plaintiff with a strong contingency-fee case, the most charitable thing you can say about litigation is that it’s a necessary evil. Sometimes it’s the only way to get what you want, and fear of it helps to keep folks on the straight-and-narrow, but it’s pretty awful. Let us count the ways:

UNPREDICTABILITY: Do you know why lawyers never say a case is a “slam dunk” or that you have a 100% (or even 90%) chance of winning? That’s because a lawyer can only predict what the law is, and the law doesn’t determine everything that might happen in a lawsuit. The technology might be too complex for a jury to really get. Evidence might be excluded on fairly technical grounds. A completely honest star witness might come off as a shifty-eyed scoundrel—or get lost on the way to the courthouse.

COST: Under the U.S. system, parties generally bear their own legal expenses in a lawsuit. So, even if you score a complete victory (which is rare enough), you’re still out all the money you spent defending yourself or enforcing your rights. IP law, more than most areas of the law, has some notable exceptions to this, but they’re unreliable, and you still have to finance the lawsuit to get to that point.

DISRUPTION: Lawsuits disrupt your and your employees’ schedules. They take valuable time away from your and their work. You spend time not only consulting with your lawyer and being deposed, but you have to search for documents, answer written interrogatories, institute “litigation holds” (i.e., stopping the destruction of relevant information), expose facts about your business you might prefer to keep private (the risk of which can be mitigated with a protective order, but still), and suffer other indignities.

STRESS: You will spend a lot of time with lawyers. You will have to live with a lot of uncertainty and a lot of deferred gratification. You will see sausage get made.

PROLONGATION: Lawsuits take a long time. If it goes to trial, it will take 18—30 months, not including appeals, but assuming (1) the judge doesn’t retire, (2) the parties dither and suddenly need extension, or (3) your trial doesn’t get bumped by a more pressing matter. It takes a while to get used to the pace, which will seem slow. Even relatively straightforward motions must be filed, responded to (in 2 weeks), further briefed (another week or so), then ruled on. Some judges (bless their hearts!) rule quickly; others are like the rest of us.

UNFAMILIARITY: The rules of civil procedure are unlike anything you’re used to, and it doesn’t matter how many legal-themed TV shows or movies you’ve seen (and My Cousin Vinny doesn’t count because that was a criminal trial). The result is often bewilderment. It’s hard to know exactly what is going on in *your* case. It’s hard to measure how important winning or losing a certain motion is. It’s even harder to understand how procedural motions could take so much time (and money) to take care of. Good lawyers, of course, will explain what’s happening in plain English, but that doesn’t change the fact that you are, in a sense, in a foreign country with foreign customs, and just when you think you’re getting the hang of it….

To be absolutely clear, Aaron | Sanders is a litigation firm. We file and defend lawsuits. We absolutely know our way around the various rules of civil procedure. We are delighted to fight for our clients, and keep our clients fully informed of what’s going on. Having said that, we like our clients too much not to be absolutely straight with them. Whether to file or fight a lawsuit is a business decision, and to make an informed decision, you need to know the full cost (and not just the monetary cost).

What about arbitration? Private arbitration, where the parties contractually agree to have their dispute resolved by an arbitrator, at one time promised to bring down the high cost of dispute resolution. It has not really made good on that promise. They move a bit faster than court cases, and they cost a bit less (though with much higher costs—filing fees are much greater, plus the parties have to pay the arbitrator), and the arbitrators typically know more about the subject matter of the dispute (though arbitrators knowledgeable about IP and technology are in short supply) than judges (who must be generalists).

Do you still want to learn more? Click here for some nuts and bolts of litigation (and arbitration).