preventing | resolving | winning

business disputes

‘I was never ruined but twice, once when I lost a lawsuit, once when I won one.’ Voltaire

We are not a “settling firm,” said the litigation hiring partner of a big American law firm to me many years ago in a job interview. That firm no longer exists. This mindset — fight every case to the bitterest of ends — is common, but foolish or worse.

As everyone knows, litigation is expensive, risky, and wasteful. It damages business relationships, nearly always beyond repair. It dominates the lives of the people who get caught up in it, putting them under immense personal stress. Few are happy with the outcome. Not even the winner.

Litigation is often said to be a zero sum game. It’s worse than that. The outcome for both players nearly always adds up to much less then zero.

All this applies to arbitration too.

In nearly 40 years of representing clients in business disputes, here are some of the things I have learned:
First, most disputes can be prevented. Many have their origin in not paying enough attention to risk.
Second, most disputes can be resolved by agreement. Most are. Eventually.
Third, when you have to fight, you have to fight to win. You can never be sure of winning. (Again, litigation and arbitration are risky.) But there are ways to improve the odds.  Preparation is the most important. It must begin early. The seeds of victory are often sown long before the battle starts. Other keys are focusing on what is important, and finding ways to simplify. An obscure case is a bad case.
Fourth, there are ways to make litigation and arbitration less costly, less wasteful, less risky. One of them is, again, to focus on what is important. 
Fifth, there are rules. The most important are about honesty and respect. Those who break the rules usually lose, and sometimes lose more than the case.