As a career business litigator, I have handled, literally, hundreds of commercial disputes for my clients. Whether being involved in bet-the-company type litigation, where the stakes and the legal fees are high, or when appearing at Pretrial Conferences for clients in courts of limited jurisdiction, one thing is constant, the unknown. You don’t know how long it is going to take to resolve the case, you don’t know how much it is going to cost, you don’t know how badly the other side wants to fight, and you don’t know what the Judge is going to think of the merits of your case or the other side’s position.
Litigation is like war on a smaller, more “civilized” scale. America right now is passively watching in horror as bloody battles rage across the globe. Fighting for autonomy from Russia is intensifying in southern Ukraine. A costly civil war that started in Syria is now spilling into war torn Iraq. Reports of hundreds of thousands of civilians, dying, being forced from their homes, and caught in the cross fire of these conflicts fill the press.
Thousands of Hamas rockets were launched from the Gaza strip into Israeli cities, which were intercepted by the American financed Iron Dome. It appeared that Israel had their dispute under control. However, reports reveal that what the Israeli intelligence did not know was that its neighbor had dug several miles of interconnected underground tunnels deep into Israel in order to one day, by surprise, surface and inflict bloodshed and devastation on its civilian population.
Civilian casualties are mounting, in nations worldwide, as a result of these conflicts. When will it end, how many more days, weeks, months, deaths, before it stops. All . . . unknown.
In litigation, anyone that thinks they can go into battle with an adversary and know what will happen, should take lessons from these large scale military conflicts. Litigation, like war, is unpredictable. No litigant enters into a legal dispute with a guaranty of victory. Just like the conflicts described above, if you sue or are sued, it is unknown how long the fight will last, how much time it will take for your lawyer to prepare, research, study, and execute any strategy or properly respond to a lawsuit. Nor does any litigant know how long the other side is willing to fight for what they believe in.
Besides the adversary, the courts need to move their dockets forward. There is no “ceasefire” in litigation. You cannot put your case on hold. If the parties can settle their dispute, then the case is over. Otherwise, the battle goes on, and on, until one side or the other either wins, or runs out of money to finance the fight. I cannot tell you how many times I have heard my clients say that they would rather pay me as their lawyer to fight with the other side than to give in and resolve this dispute with the adversary. I always remind my client that a resolution of a dispute assures an end to the legal battle, which is never guarantied when the fight goes on.
A good lawyer tries to keep his client out of trouble. Sometimes, it does not matter what the lawyer does, the client will find themselves in court and they have to deal with the conflict.
The next time a client tells me what they think is going to happen if they go to court, I will remind them of the tunnels that the Israelis, with all of their American technology, did not even know existed right below their feet. If a country that spends literally billions of dollars a year on its national security and defense, has some of the most sophisticated counter-terrorism systems in the world, does not even know that its hostile neighbor is and has been lurking deep into its land and preparing for wholesale bloodshed, what can my client really know of the intentions and capabilities of another litigant.
The lifeblood of litigation, like war, is the unknown.
For more information about business litigation and strategies contact:
ERIC N. ASSOULINE, ESQ.
With offices in Miami, Ft. Lauderdale, and Boca Raton
Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law