THE ARMS RACE OF LITIGATION

By Rebecca M. Vaccariello

Sometimes the litigation process seems to be analogous to war or a battlefield. There are many different things that motivate clients to file a lawsuit. There are some cases where it appears the plaintiff is looking to bankrupt the other side. Other cases involve commencing a suit to gain a perceived advantage in being first to shoot, and also making sure all the tools are in the arsenal to make sure the other side does not fire a shot. There are other cases where a party could commence litigation for a meritorious claim, however they fear the repercussions and do not want to fire a missile at the other side, knowing that eighteen missiles may be returned at them. Given the many different reasons why cases may be commenced and the different motivations of the parties in different cases, it is no wonder that many cases settle before the final battle plays out because that initial energy fades and the reality of the continuing battle lays ahead. In many cases, the parties may need to have many hearings before reaching trial and the parties tend to tire in many cases of the process of fighting the small battles and grow weary at the thought of the war coming up at trial. While trial attorneys are versed in the process and procedures, the process can be found very trying to a client who is not prepared for the marathon feeling that comes with a year-long-plus process to get to trial.

There are many cases that end early, perhaps not due to settlement, but due to the court dismissing a case on a motion. Some studies have questioned if the settlement statistics of 90% or more of litigation matters are accurate. There are undoubtedly many cases that do in fact settle, either after a form of alternative dispute resolution, such as mediation, or by the parties themselves. There are countless cases that settle “on the courthouse steps.” In any case that is proceeding forward towards a trial, one of the biggest roles of the litigation attorney for each side is to try to remind their respective client of the inherent risks of the litigation process and to encourage their client to maintain an objective view of the realities of the case and the likelihood of success. In the heat of emotion that many litigation matters entail, it can be a challenge for litigants to maintain perspective and treat the case as ultimately a business decision with monetary risk. In light of the inherent risks for both sides, it is usually the wisest decision to take a hard look at the possibility of settlement in each case to ensure that the risk is worth the potential reward or potential loss.

In every case, it is important to keep in mind the different motivations of the opposing party and that can assist a party with appropriately litigating or settling their case. Not every case should go to trial, although there are many for which there may be no choice.

It does seem of course that when mediators often say, “This is a case that should settle”, there is no good reason why that statement should not apply to every case. But it is similarly clear, as with war, that not every single case can be settled, absent a decision of a judge or jury. One of the important parts of being involved in the litigation process is to determine the best way to manage your case particular to the facts of the case, the strength of the case, and the players involved. Whatever the initial motivations or issues, it is important to work with an attorney to attempt to use litigation strategy and tactics similar to how military strategy and tactics would be employed. The battlefield of litigation can be an intimidating place and it is important to have selected an attorney you trust and then take their advice along the way.

This Article does not constitute legal advice and may not be relied upon as such.  Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.

Rebecca M. Vaccariello
Rebecca M. Vaccariello’s practice focuses on business, probate and general civil litigation.  Ms. Vaccariello is licensed to practice law in the states of Florida and New York.  Prior to joining Salvatori, Wood, Buckel, Carmichael & Lottes,  Ms. Vaccariello served as a judicial law clerk to a civil trial judge in New York for over five years, and, prior to that, worked for six years in a general practice litigation firm in New York.

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