The other day, I was trying to explain to another attorney why I’ve grown to dislike the term “litigation,” even though it’s the most commonly-accepted way of describing most of my law practice. I don’t have any objections to filing or defending lawsuits, and I’m also proud to call myself a trial lawyer for those unusual cases that finally make it to trial. But to me, “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.
But litigation, in the sense I’m using the term, still is often necessary to bring the parties to the table, replied the attorney to whom I was explaining my theory. People have to engage in it for a while before they understand just how destructive it can be. If that’s so, I said, then what we are doing is encouraging people to participate in a process, not because we think it is a good method of resolving a dispute, but instead to show our clients what a bad method it is for doing that, so that they will as a result decide to negotiate an end to their dispute instead of continuing to litigate. If that sounds cynical to my fellow litigators, just take a look at the recitals of practically every settlement agreement you’ve ever been involved with. They 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 usually should be avoided unless it’s the only way to obtain necessary information or present the case to a judge, or unless the goal is to intimidate the other side into resolution just to avoid more litigation. But 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.