GPSolo Magazine - Oct/Nov 2003

When Your Case Must Be Litigated

Although alternative dispute resolution (ADR) processes and negotiation typically provide the most efficient and effective means of resolving legal conflicts, sometimes a just resolution simply is not possible without court intervention. The problem today is that people often resort to litigation too quickly, without sufficient forethought. Because litigation is a drastic recourse with inherent risks, this mad dash to the courthouse is never a prudent strategy. Clients are unhappy to discover deep into the case that their odds of success are not as good as they had imagined, their legal bills are much higher than expected, and the requisite investment of time is beyond their means. By trial's end, litigants often find themselves tapped out financially and emotionally, and entirely disgusted with the litigation process.

The real challenge for lawyers, then, is to strike a balance between litigation's value and overuse by identifying those matters that must be litigated-in which the win-lose dynamic of a lawsuit is the best and only way to restore a client to health. Although there is no golden divining rod to employ in this quest, practitioners can discern most "must-litigate" matters by taking time to answer the following questions:

  • Does the client know exactly what she wants, and is she sure that this serves her real interests?
  • Does the client understand her chance of success in the courts?
  • Is your client aware of the investment of money, emotions, and time that litigation requires, from filing to disposition to collection?
  • Is there an acceptable less costly alternative that might better meet the client's overall interests?
  • Have you tried to resolve the dispute through negotiation or one of the current modes of nonbinding ADR, such as mediation, to no avail?
  • Have you examined the viability of different forms of binding or adjudicative ADR as alternatives to court?
  • Is ADR not an option as a result of any of the following conditions:
    • a significant power imbalance between the parties, such as a history of coercion or abuse;
    • a steadfast unwillingness on one party's part to resort to ADR; or
    • a need to commence an action to avoid a time-barred claim, to prevent irreparable harm, or to protect someone's physical well-being?

If this inquiry process confirms that litigation is the only or best means of advancing a conflict resolution, lawyers can move ahead with an action confident that they are serving the optimal health of their clients and the court system while sealing their reputations as savvy and conscientious professionals. Even in these situations, however, counsel should vigorously explore opportunities for constructive resolution as the litigation progresses and parties' needs and expectations shift.

The following case study exemplifies how the inquiry process plays out:

A software company that lost its building in a fire began threatening Ben, a young employee with a new family, with termination unless he met several conditions that seemed unacceptable and exploitative to him. Because the company was sponsoring his green-card application, Ben felt enormous pressure and attempted suicide. When he got out of the hospital, he consulted a lawyer. Given the company's reputation and past actions, the lawyer advised Ben to expect XCorp to make a tough stand.

Sure enough, the company refused to negotiate, started an action, and sought a temporary restraining order to prevent Ben from working in the software industry. Assuming that Ben was still mentally and emotionally vulnerable and recognizing the massive disparity in financial resources, XCorp expected his quick capitulation. They were way off. Believing in his case, Ben held firm, and he and the lawyer had a plan to meet each of the company's subsequent maneuvers. In the end, the judge ruled in Ben's favor and granted his settlement terms; the company abandoned further action.

Although litigation was not his first choice, Ben knew exactly what he wanted and that it served his real interests of standing up for himself and getting what he deserved. He also understood that he had a good chance of success in the courts and that the cost justified the effort and risk. There was no viable alternative in the face of XCorp's staunch refusal to negotiate or otherwise constructively resolve the dispute. In this scenario, litigation proved to be extremely valuable and effective.

Arnie Herz is a mediator, lawyer, and speaker with offices on Wall Street and Long Island, New York. He can be reached at


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