I practiced civil litigation, representing clients on both sides of the v., for many years. As attorneys our job is to act in the best interest of our clients. In litigation, that responsibility is at odds with the traditional hourly payment model. A litigator who is paid on an hourly basis to litigate is not financially incentivized to resolve the client’s case quickly unless the client brings in significant repeat business. While approximately 90% of cases do settle before trial, most settle only after considerable time and expense have been spent.
The irony and tragedy is that litigation shrinks the pie. The earlier a case is resolved, the more pie there is to distribute. That means settlement agreements that are made on the eve of trial have less total value to the parties than resolutions that are negotiated early. This truth is the reason I now focus my practice on negotiation.
The most important lesson I learned as a litigator is that litigation is wasteful, costly, and destructive to relationships. I learned that early resolution of disputes (preferably pre-suit) usually leads to much better outcomes—saving clients money, salvaging relationships, and preventing enormous stress. So here is my advice to all litigators who take seriously their responsibility of acting in the best interests of their clients:
- Brainstorm possible resolutions for the case at the outset of litigation. Begin a settlement dialogue early in the case. The pie only gets smaller as litigation proceeds.
- Be mindful of your billing and the economics of your case. Don’t engage in expensive motion practice or discovery that doesn’t net benefit your client. You are hired to do what is in the best interest of your client. You have failed your client if you spend more money than the win is worth, or if you could have settled earlier with a better result because of the expenses saved.
Indeed, resolving a case early preserves the value in the case for the parties (instead of being wasted on the litigation process). Negotiating at the outset of litigation, or better yet pre-suit, helps clients achieve better results, save relationships, and achieve a resolution faster. Imagine if every litigator had this mentality?!
