Sue the Bastard! ...I think

100% Human Generated!

We live in a very litigious society; Americans like to sue. This love of litigation is partially reflected in our TV shows. Reality-based shows like Judge Judy, Judge Mathis, and their predecessor from my day—The People’s Court—make litigation look easy, painless, and not very time-consuming or expensive. But as with most of what’s on TV, real life is quite different. And those shows only address simple disputes with clearly defined issues. Business disputes are typically far more complicated and can’t be decided in 30 minutes or less. It often takes years. 

With that said however, litigation is not all bad and a great deal of good can and does come from it sometimes, even though it’s very expensive and can take a while to resolve. I say this as a lawyer who has been in court all too often at times. For example, if a customer refuses to pay for the $90,000 of first-rate services that your company provided, it may well be worthwhile to sue so you can get paid. If you have a trademark, the only way to stop an infringer from damaging your brand may be to file suit against them. And if your billion-dollar patent is being infringed, court may be your only recourse regardless of the expense.

While most lawsuits don’t involve billion-dollar patents, they do involve important issues where the amount of money in dispute is not insignificant, at least to the companies suing. Below are a few things to consider when deciding whether or not to litigate (or even arbitrate). For those who have personally been through the litigation meatgrinder, nothing I say here will be all that surprising. But for those of you who haven’t yet lived through that not-so-joyous experience, or are contemplating it currently, consider these observations to be just more food for thought.

“Live Long and Prosper”

Had Mr. Spock ever been sued, I doubt he would have said this to the opposing party. The Vulcans, however, got it right in one respect: Keep emotion out of it. For the most part, when it comes to business litigation, try to separate yourself from the emotional aspects of the case. This can be very difficult to do (I’ve had to sue people too). Yes, you may be 100% completely and totally right: The other party is heartless, dishonest, and corrupt and cheated you out of your hard-earned money. To be blunt, it sucks to be in that position.

Welcome to the rough-and-tumble business world. It’s a universal truth: Sooner or later, we are all mistreated, lied to, and exploited, and have encountered our share of sleazebags and crooks. It’s an unfortunate cost of doing business. It was this way long before the advent of e-commerce and doing business online, and it’s only gotten much worse now because of it. But that doesn’t mean you always have to sit there and take it either. There are times when fighting back is also a required cost of doing business. However, getting too emotionally involved can impair your judgment.

I’ve often told my business clients that—barring a few exceptions—it’s almost always about the money. Clients don't always want to hear this if the other side has engaged in particularly unscrupulous or fraudulent conduct, but it happens to be true most of the time. If you expect the judge to turn back the clock or order the other side to fall to their knees contrite and beg for your forgiveness, you can forget it. All the court can usually do is award money and maybe order the other party to stop engaging in certain conduct or to take certain actions.

If this is enough for you, fine. If you’re fighting because of the unyielding principles at stake—and these can be important—just realize that they have a dollar value associated with them too, whether you like it or not. I’ve been involved in non-business cases where the money does rightfully take a back seat to other more important considerations. Nevertheless, you’ll need to regularly reassess your expectations and principles during the litigation. And you’ll need to keep your emotions in check throughout.

6 hours = 30 ... or 40 ... or 50 hours

If there’s one popular misconception about litigation that clients don’t realize, it’s this: Preparation—especially thorough preparation—is time-consuming. The 2, 4, or 6 hours spent in court is a small fraction of all the work it took to get there. I’ve heard my share of formulas over the years: “For every 1 hour in the courtroom, it takes 5 hours of preparation.” Or 6 hours. Or 8 hours. In reality, these numbers are meaningless. 

Preparation depends on so many factors that nailing down a precise number is nearly impossible (especially in the days of overabundant e-discovery). For example, if the issues are novel or complex, this will require more preparation. A breach of contract dispute involving a promissory note will take far less preparation than a case alleging that ChatGPT infringed an author’s copyright.  

The nature of the case is a factor too. A mother in danger of losing custody of her child forever will almost certainly engender more preparation than many types of business disputes, where only money is at stake. Ask any criminal defense attorney whose client is facing decades in prison about the amount of preparation a trial takes compared to a real estate dispute.

I remember one grueling case where an attorney’s failure to prepare was showcased vividly. He called his only expert witness to the stand, a respected psychiatrist who wrote a favorable report to both our clients. The expert could only testify in the morning session that day. After 2 hours of questioning, the lawyer excused himself, walked over to me, and whispered that he had exhausted his written questions—even though he had only gone through half the report. 

I was angry, to put it mildly. I had told him many days before that I wouldn’t be ready to question his expert then because I was preparing for witnesses to be called that afternoon. I whispered that he had better ask some more questions or he risked compromising the case. The judge would not have taken kindly to his lack of preparation. He then stumbled through for the next 1.5 hours asking impromptu and sometimes rambling questions, taking long pauses as he read the report. It was painful to watch and obvious that he was “winging it,” but what choice did he really have? Either he was going to represent his client….or he wasn’t. 

The moral of the story? Don’t underestimate preparation time. Yes, it’s expensive—but you definitely don’t want your lawyer to be unprepared. Otherwise, it could be even more costly. If your attorney looks bad in court, you do too and your case can suffer.

Murphy, Esq.

Even thorough preparation has its limits. We’re all familiar with “Murphy’s Law.” This is the time-honored saying: “Anything that can go wrong will go wrong.” It holds especially true in complex situations like litigation. Even a well-prepared case is subject to all sorts of surprises and unknowns. Litigation is never a sure thing no matter how good you think your case is. Nobody knows what a judge or jury will do, or what a witness will say, or what evidence will ultimately be entered. Prepared lawyers try to anticipate and strategize as much as they can, but it’s impossible to know what will happen. Things can and do go wrong.

As a young lawyer, I practiced at the Massachusetts juvenile court. The issues were far weightier than breached contracts, infringed copyrights and trademarks, or faulty websites. Parents could have their rights terminated and never see their children again. Given these critical interests, one would think that a lawyer would have access to all needed discovery. (“Discovery” is the formal litigation process used to find out information about a case.) But it was extremely limited at this court and an attorney had to request special permission for discovery, which was typically denied. It was the most restrictive court in which I’ve practiced.

Thus, the first time the opposing party’s witnesses took the stand at trial was often the first time I questioned or even spoke to them. I was dealing with many unknowns—far more than in other types of courts and cases where discovery was allowed liberally. In many instances, I didn’t know what the witnesses would say. 

The age-old legal adage, “you shouldn’t ask a question that you don’t know the answer to,” didn’t really apply. It’s implicitly premised upon knowing enough pertinent and detailed information about your case in the first place to know what questions to ask. I rarely had this luxury. To make matters worse, the facts often continued to develop during trial, almost to the very end. This type of dynamic required even more extensive preparation. Even then, nothing ever went as planned.

It taught me a valuable lesson: Expect the unexpected. And realize that your lawyer just can’t anticipate everything no matter the preparation. Don’t expect omniscience. You’re not omniscient or else you never would have done business with the party that you’ve now had to sue. So unexpected things will usually occur. How your lawyer deals with them and what impact they will have on the case is a different matter.

The Money Pit

Issues of preparation and Murphy’s Law ultimately translate into one thing: Money. Litigation is like a large home improvement project. Everything takes longer, costs more, and is far messier than you first realize. Perhaps the contractor discovered hidden damage behind the walls. Maybe a subcontractor has disappeared. Or maybe you’ve decided to make material changes to the project. Whatever the reason, costs tend to escalate quickly. 

A lawsuit is similar. Some evidence could require more investigation than anticipated. Maybe a key witness has disappeared or changed their testimony. Perhaps a party’s previously hidden social medial accounts contain damaging information. Your attorney may also need to hire other experts, lawyers, and support staff. This gets very expensive.

Whenever a client tells me: “Sue and I don’t care what it costs!” I worry. Sooner or later, costs usually do become a factor, even with big well-resourced companies. In one case, I represented a software developer and sued a large, publicly held, billion-dollar biotech for breaching a $55,000 contract. Legal fees were mounting. They eventually gave in and settled. 

Opposing counsel later admitted that his client realized it would be cheaper to settle than to continue paying its lawyers, which it could have easily done. It didn’t want a $55,000 case to cost $100,000 or more, so it made a prudent business decision. The fact that we had clear evidence of their breach may have also been a factor, but the case settled for a satisfactory amount, which was all that mattered to my client. 

Also, remember that legal fees are only one type of cost. Don’t underestimate your own time. Litigation will require you to spend a great deal of it working closely with your lawyer. This will almost certainly cost you in terms of either an actual dollar amount placed on your time or the lost opportunity cost that could be spent running and building your business. And don’t ignore the emotional and psychological costs either. It’s a stressful and demanding process that can take a toll on your mental wellbeing. This should all be included in your overall calculus when weighing the costs of going to trial.

Place Your Bets, Place Your Bets! Settlement, Anyone?

Litigation always carries risk. Sometimes a lot of risk. While it’s not like playing craps or roulette, it can certainly feel that way at times. No matter how strong you think your case is, the risk of things going awry is always there. Unless it’s a completely meritless case—and sometimes even if it is—talk of settlement will likely be mentioned at some point. It might come early in the process or after discovery closes or on the eve of trial. It will certainly be broached by the judge, who will encourage it (and perhaps even apply some pressure to settle) instead of holding a time-consuming trial. Sometimes though, settlement just isn’t possible.

Despite the inherent risk, good lawyers don’t prepare cases for settlement; they prepare them for trial. Settlement is something that happens along the way. The motivating factor for both parties is the uncertainty of going to trial when anything can happen. As noted above, nobody knows what a judge or jury will do. I’ve had judges make rulings at times that were baffling and didn’t follow the law. But I still had to deal with it the best I could. Think of uncertainty as the currency which prompts settlements. And it needs to be assessed carefully with your attorney.

Even so, don’t tell your lawyer to prepare your case for settlement. Whenever I hear this, I interpret it to mean that my client isn’t committed to going the distance should a trial become necessary. While most business disputes do settle, your case may be the exception. It’s not always apparent at the outset if it falls into this category. Many things can and do occur along the way which affect whether this will happen.

So, whether there’s a settlement or a full-scale trial: Be prepared, because litigation is a form of battle, and battle has its risks. If you’ve weighed all the costs and benefits, are committed to your cause, and are certain this is what you want, then as Shakespeare eloquently stated centuries ago: “Cry ‘Havoc’ and let slip the dogs of war.” Or as we say in today’s vernacular: “Sue the bastard!”