The threat of complex, high-stakes litigation is unfortunately a well-known fact of life for too many companies doing business in the United States. Due largely to a combination of the extensive pretrial discovery permitted in U.S. litigation and the high cost of lawyers, major litigation can cost millions of dollars and take years to resolve, diverting the time and attention of important executives in the process. Some of these cases can threaten the viability of a company, particularly if they proceed to trial, where uncertainty is a given. Accordingly, statistics confirm that the overwhelming majority of civil cases are ultimately settled before trial—and too often after most of the discovery, cost, and collateral damage associated with the litigation have been incurred.
This article—the product of 35 years of experience litigating and trying cases in courts around the country in a broad array of practice areas—offers four practical rules to follow in order to successfully, expeditiously, and cost-effectively resolve significant disputes that are either in or on the brink of protracted litigation.
First, perform a sober and early case assessment that accurately projects how a case would be likely to unfold, and dispassionately evaluates whether it should be litigated at all.
Second, assuming war is inevitable, decide judiciously which claims, defenses, and motions should and should not be litigated in order to successfully resolve the dispute—with “winning” defined strictly in terms of the client’s realizable commercial objectives—and then develop and sharply hone the strategy along the most direct path to achieving that result at the earliest possible moment.
Third, build your case entirely on positions and themes that are factually true, fair, and comprehensible—not on clever efforts to massage and force the case either within or outside prior precedent.
Finally, particularly because you may be asking a court to take some unconventional actions—procedurally or substantively or both—you must execute flawlessly. This includes marshaling and unleashing a well-coordinated team with all the requisite technical skills to ensure that you win the battles necessary to achieve success for your client.
Taken together, these rules reflect a practical, business-centric approach to litigation rooted in a few fundamental tenets about how our judicial system works in practice. Above all, they require the ability to foresee how disputes are likely to unfold in the real, messy world of complex litigation—as well as the fortitude, creativity, and skill necessary to develop and then execute a strategy based on that vision.