I prefer to describe my practice as “conflict resolution” rather than “litigation.” It’s not because I have any objections to filing or defending lawsuits, and I am not at all adverse to taking cases to trial. But “litigation” connotes a lot of activity in between that is not only wasteful, but actually counter-productive to the goal of resolving the dispute. (I’m thinking of discovery disputes in particular, but the impulse to contest everything the other side is saying can arise in almost any procedural situation). This litigious mindset is counter-productive not only because it takes a lot of time and resources, but also because it can unnecessarily antagonize the other side and make the dispute harder to resolve. Sure, some of this pre-trial activity is necessary to prepare for trial, but the bulk of it is never used at trial. And if the case doesn’t to trial, as most cases don’t, litigation is an awfully inefficient way of learning enough about the value of the claims and the interests of the parties to enable the parties to settle.
Often we are forced to engage in litigation, in the sense I’m using the term, either because the other side insists on it, or because clients demand action that will make their adversaries take their claims seriously. In most cases, however, both sides eventually realize that litigation is not helping solve the problem. We then negotiate settlement agreements that explain right on their face why the parties decided to enter into the deal, using language something like this: “in order to avoid further expense, inconvenience, and the distraction of litigation . . . . ” We are admitting to the world that we are settling most cases just to avoid the harms caused by the process we supposedly entered into for the purpose of deciding the controversy!
Clients might be able to justify engaging in a process that causes pain to their adversaries because that can cause the other side to see the light and accept terms. In fact, they are often eager to go at it for that reason. But they usually don’t want to cause themselves a lot of pain in the process. Clients find out that that they can’t usually expect to inflict pain without receiving some back in return, just as you wouldn’t expect to step into a boxing ring with another fighter without receiving some blows. As an attorney, I don’t get much satisfaction out of subjecting my own clients to a painful experience just to teach them a lesson. Therefore, for the majority of private disputes, I’d prefer to start off with a less destructive process, like negotiation or mediation. And if we have to litigate, I’d prefer to do so in a way that minimizes the pain for my clients and helps more their case toward resolution, rather than in a way that forces them to settle just to avoid experiencing more of the pain the lawsuit is causing them. A lot of litigation activity is avoidable and counter-productive. So if we are beating our heads against the wall just so that we will feel better when we stop doing it, we might have to question whether we needed to beat our heads against the wall in the first place.