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Summary:  Navigating the complex landscape of pre-litigation dispute resolution is akin to engaging in a well-executed game of chess, requiring foresight, strategy, and the sage counsel of an experienced player. This blog post outlines the multifaceted advantages of resolving disputes before entering the litigation fray, including financial and time savings, greater control over outcomes, and reduced stress. The unpredictability inherent in courtroom battles makes pre-litigation dispute resolution a more predictable and often less costly option. Most judges will encourage parties to settle prior to trial, so why not save the time and money of litigating and take their advice before diving into litigation? Consider the irreplaceable value of seasoned litigation counsel who can act as a co-grandmaster in this intricate chess game, guiding clients toward efficient and effective resolutions. Investing in such counsel not only maximizes your strategic position but also underscores the prudence of avoiding litigation whenever possible. Experienced, client-focused attorneys with a nuanced understanding of both transactional and litigation spheres serve your interests best rather than extending a legal battle for selfish financial gain.

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Most legal scholars agree that more than 90% of disputes settle before trial, and some believe the actual rate is as high as 95% to 99%. Therefore, in many lawsuits, the only people who “win” are the lawyers because they pocket massive fees, only to settle a case on terms similar to what probably could have been accomplished before the lawsuit was filed. Those disputes which settle before a lawsuit is filed are a testament to smart clients and experienced, selfless counsel who resolve disputes even before they escalate into litigation. Relying on analytics, a seminal paper entitled “Who Wins in Settlement Negotiations?” underscores that negotiation tactics and psychological subtleties significantly impact the outcomes of negotiated settlements.  Only the most experienced litigators can understand these subtleties and implement these tactics best. Moreover, litigators with transactional experience often have the best perspective on how to settle because of their experience in finding common ground to facilitate settlement.

Pre-litigation dispute resolution requires a nuanced, well-calculated approach, akin to a chess champion contemplating her next several moves. On this “legal chessboard,” each piece on the board represents a different facet of the dispute at hand – whether it is related to a contract, a tortious injury (physical, economic or otherwise), intellectual property or any other legal issue. The key to winning is mastering your strategy under the guidance of experienced litigation counsel. The aphorism “an ounce of prevention is better than a pound of cure” resonates in this realm, as there are many benefits to pre-lawsuit dispute resolution.  So what are the benefits of this approach?

The Strategic Advantages of Pre-Suit Dispute Resolution

Financial and Time Constraints
Engaging in lawsuits isn’t just draining on your wallet; it’s an assault on your calendar with constant, time-consuming deadlines. Further, litigation costs can easily skyrocket into the six-figure range, not to mention the emotional and time costs. The age-old adage is that, “in litigation, only the lawyers win.”  You want to hire a litigator who can help you try to avoid these costs by trying to secure a resolution prior to litigation, if possible. If it turns out that is not possible, at least you know that you tried, and you will have less regret and more resolve to pursue litigation, knowing that you had no other choice except to litigate. You may also gain valuable insight into the strengths and weaknesses of both sides’ cases. 

The Unpredictability Quotient
Many litigation outcomes often amount to a roll of the dice even with a good litigator at your side. Regardless of how compelling your case may seem, the court is a veritable casino of dynamic risks. These include which judge is assigned to your case and that judge’s idiosyncrasies, who your opposing counsel is and whether they know the judge, how busy the court is, whether your case is susceptible to pre-trial dispositive motions such as summary judgment and whether trial will involve a jury. This unpredictability is enough to push even the most stalwart litigants toward pre-lawsuit dispute resolution.

The Mutual Benefit Framework
Often, both parties have skin in the game to reach an amicable settlement. The plaintiff might accept a lesser amount to mitigate the risk of walking away empty-handed, while the defendant may pay a bit more to sidestep the inefficiencies and uncertainties of litigation. However, by settling before litigating, both sides can tolerate settling beyond their preferred settlement aspirations in exchange for gaining certainty of resolution, saving a great deal in legal fees and avoiding the thorny inconvenience of litigation.

Judicial Endorsement
Courts aren’t just passive venues for litigation; they actively champion settlement through direct negotiations, mediation and other ADR methods, imploring parties to pursue a more efficient and less antagonistic way to resolve disputes.  If judges – who are generally experienced jurists – push these approaches, why not consider them yourself before filing suit, saving a lot of time and money?  You don’t need the court to tell you what I am telling you now.  And they will tell it to you anyway at some point in a lawsuit. So why waste money and time if you can resolve the dispute without litigation?  The result is that you spend less money on legal fees, you’re able to consider a larger range for compromising in settlement (but gaining the certainty of a resolution) and experiencing less aggravation.  Less money, less time and less risk are valuable benefits.

Autonomy and Control
Unlike the rigid, prescriptive nature of the litigation process and judicial decisions, settlements allow parties a level of control and customization in the outcome. It is no coincidence that one of a judge’s most effective settlement techniques is to tell the parties they don’t want to find out what s/he really thinks of their case, a veiled but serious threat that few parties want to tempt.

The Expediency Factor
Time is money. Settlements provide an efficient resolution that enables parties to focus on what they prefer to be doing: making money and enjoying life, instead of risking the opposite.

The Predictability Element
While litigation may offer more drama, it comes with the risk of erratic outcomes and unpredictable costs. Settlements, by contrast, offer a pragmatic and more predictable path.

The Emotional Aspect
Litigation is not for the faint-hearted. Doing it properly involves great time, expense and risk. These factors can exact a heavy psychological toll that should make the idea of a swift closure offered by pre-lawsuit settlements an attractive proposition for even the most stout-hearted clients.

Preservation of Relationships
When business or personal relations are at stake, settling early can often provide the balm needed to maintain these connections, as opposed to the corrosive effects of litigation, where the statements you make become a part of a permanent record, most if not all of which is accessible by the public. I have settled many disputes where the outcome involves the parties continuing to do business together; indeed, a settlement can generate the next business deal.

The Veil of Confidentiality
Settlements usually come with confidentiality clauses, a feature particularly appealing to businesses and individuals keen on safeguarding sensitive information or reputations.  Accomplishing settlements prior to litigation offers the same degree of privacy where the public need not have access to your “dirty laundry.”  Furthermore, some parties are more likely to settle if the fact of their settling is not known to the public. This can only happen pre-litigation.

The Regret Element

If you don’t at least try to resolve your dispute before litigation is initiated, you will never know if you could have resolved it without the litigation.  Not all disputes can be settled before litigation. However, in those cases, at least you will know that you tried to resolve the dispute early in the most efficient way possible, and you will know that you had no choice but to litigate. This knowledge can prove invaluable in helping you develop the resolve to withstand litigation until a serious settlement opportunity presents itself.

Conclusion

Navigating how to move a civil dispute toward a resolution prior to litigation is like playing a complex game of chess. Each decision can have far-reaching consequences, and the advice of an experienced litigator can be the difference between a winning and losing strategy. Whether you’re faced with a dispute involving a contract, a business transaction, a corporate matter, a real estate dispute, an intellectual property matter or any other type of civil dispute, an adept attorney can serve as your co-grandmaster, helping you navigate the chessboard with strategic finesse. So don’t leave the outcome of your dispute to less experienced or trigger-happy litigators; invest in counsel skilled enough to play the game at the highest level and maximize the potential to resolve a dispute in the most efficient, painless way possible.  Find an attorney with the experience, intelligence, integrity and selflessness to strive for the best outcome for you rather than the most lucrative work for the attorney. At the Law Office of Isaac H. Winer, you get smart, experienced and effective lawyering that is worthy of your trust.