To Litigate or Not to Litigate: Some Insights From a Plaintiff’s Attorney

on March 23, 2016 by Gene M. Lerner

When a client of mine becomes involved in a dispute, the first communication I have with them is usually in the form of a frantic phone call asking me to file suit immediately. The client will often impress upon me that they are the aggrieved party, 100% in the right, and are convinced that litigation will lead to a swift, positive outcome. But is it really beneficial to jump into the minefield of contested litigation immediately without at least exploring the potential for an amicable resolution?

In my opinion, prior to filing suit, there must be frank and honest discussions between client and counsel. The client must not only focus on the positives of the case- such as strengths of the claim - but also the possible downsides of litigation. Although a client may have a meritorious case overall, there will always be weaknesses that will be uncovered during discovery or even other practical difficulties in trying the actual case. For instance, could a counterclaim be filed? Will litigation be prohibitively expensive? Will an overseas client be able to fly over witnesses to the U.S. several times? Does the case involve retaining highly skilled experts? And finally, will litigating generate any unfavorable publicity for the client, or hurt their reputation in the long run?

In the course of my practice, I find that most parties and their counsel will be amenable to at least discussing settlement prior to litigation. Although there may be “bad blood” between the actual parties, the respective attorneys for each side can usually converse in a friendly environment. This is precisely the main advantage to letting an attorney who is skilled in negotiation handle such heated disputes. The attorney has no personal stake in the dispute and can objectively evaluate the strengths and weakness of their client’s case, allowing him or her to engage in meaningful settlement negotiations.

In truth, the majority of claims that I handle for my clients will never reach a courtroom, let alone a trial and I pride myself on my ability to resolve claims early, or even before suit is filed. It must be stressed however, that to engage in settlement talks is not to say that an attorney will not zealously and aggressively represent their client. Effective representation is also inherent in an attorney’s ability to effectively push the possibility of an amicable resolution while understanding the risks of litigation, and minimizing the client’s risk of exposure . With an effective negotiation strategy, the parties can even overcome the dispute and continue working with each other in the future.

Mr. Lerner represents a number of U.S. Fortune 500 companies as well as overseas clients in Europe and Asia, in a wide range of matters concerning creditor’s rights, bankruptcy, breach of contract, and sales of goods disputes.