On Litigation

When it comes to litigation, I subscribe to Voltaire’s point of view when he wrote, “I have never been ruined but twice in my life- once when I was in a lawsuit and lost, and once when I was in a lawsuit and won.”

Despite the intoxicating rush of seeing your legal theories vindicated in open court, I’ve seen too many Pyrrhic legal victories and inconclusive resolutions to think of litigation as anything other than a last resort. Court proceedings are essentially bureaucratic dispute resolution mechanisms, and often inefficient ones at that. I say this with all due respect and admiration for the judiciary, and I acknowledge the importance to society of having dispositive tribunals adjudicate disputes in a procedurally unbiased manner. In the vast majority of cases, however, litigation entangles the participants in an expensive and lengthy journey that often leads to an unsatisfying end. No better example of the futile drone of litigation exists than the fictional Jarndyce case of Bleak House fame:

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.- Charles Dickens, Bleak House, 1852

On the other hand, there is the view (apologies to von Clausewitz) that litigation is business carried on by other means. This can be a valid approach, if followed with some analytical rigor; this strategy largely relies upon leveraging the process of litigation rather than seeking a vindicating result- a sort of judo-like approach to use against an opponent in furtherance of a business strategy. This tactic may be effective at times, particularly when used by clients who are sophisticated consumers of legal services (see post of June 19, 2010), but considering the transaction costs associated with litigation, it should only be used sparingly. I’d much rather spend the corporate treasure, borrowing another phrase from Voltaire, to “cultivate our own [company] garden.”