2. Time commitment. While you may hire counsel to prosecute or defend a litigation, your time may be devoted to it too. Clients cannot subcontract their role as witness, document custodian, decision-maker, etc. Litigation can take months or years (especially with appeals), and delays – such as waiting for court schedules, discovery, motions, rulings, etc. – are common. If you are seeking a quick fix, litigation is rarely the right path.
3. Uncertainty. We cannot predict with certainty what a court may do, what issues an adversary may raise, how the law may evolve, how the evidence will be perceived, etc. Courts do not always get it right. Even with a good case, you might lose. The judge or jury might find no breach, minimal damages, or may assign only partial liability. Your adversary could assert defenses, counterclaims, or seek invasive discovery. Clients want certainty, but litigation cannot provide it. We often counsel clients on what “should” happen based on the facts and the law. What “will” happen is always uncertain.
4. Stress. All of the issues discussed so far (cost, time, uncertainty) can lead to stress. Litigation is adversarial – you may be questioned under oath, and your actions (or inactions) may be subject to scrutiny. A good lawyer can assist with all of these things, but litigation can be quite consuming and disruptive.
5. Loss of privacy. Legal filings and court records are often public. If your case involves sensitive or embarrassing information, it may end up in the public domain. Worse, your adversary may seek to use it against you. If they sense that you are concerned about a particular fact, and do not wish for it to be public, they will attempt to exploit it – either to inspire a settlement or because it bears on the merits of the case.
Your emails, texts, and other communications may be collected, searched, reviewed, shared with the other side and put in the public record. Sometimes, this happens even when you think your communications have no relevance to the proceeding, because the court may disagree.
6. Risk of reduced or no recovery. Your lawyer may handle everything perfectly and you may win the case; however, if the defendant is insolvent, goes out of business, or has inadequate insurance, any resulting judgment may be hard, if not impossible, to collect.
If not voluntarily paid or settled, the process of collecting on a judgment can feel like a wholly separate litigation. While that effort may be worth it for larger cases, smaller matters require careful deliberation on whether you will spend more seeking to collect than you will yield.
Is it Worth It?
Whether it is worth all of these risks to litigate or continue to litigate will depend on your lawyer, the strength of your case, the amount of damages, your capacity to absorb the cost, your risk tolerance, whether a principle is at stake, etc.
Consider this article like a release you sign at a ski resort. Skiing presents many perils, and it is important to know them before strapping on your skis; thus, the ski resort ensures that you are advised of the risks before you start.
As long as you fully understand and appreciate the risks, skiing can be a real joy. While that cannot be said about litigation, it is important, as with skiing, that you understand the risks before getting involved so you and your lawyer can handle it in the best possible way for your company, whether defending or pursuing claims.
