When Your Case Must be Litigated

(As appeared in the October/November 2003 edition of GPSOLO, a publication of the American Bar Association)

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 his 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.