Litigation – the improbability of victory and its unacceptable cost

The title for this post contains an excerpt from a quote by the famous military General and writer on war Claude von Clausewitz. It’s an excellent summary of what so often happens in civil litigation of any kind. Good legal advice is not always what a client wants to hear; it most certainly should not

Home » David Swede » Litigation – the improbability of victory and its unacceptable cost

The title for this post contains an excerpt from a quote by the famous military General and writer on war Claude von Clausewitz.

It’s an excellent summary of what so often happens in civil litigation of any kind.

Good legal advice is not always what a client wants to hear; it most certainly should not be based on what’s most advantageous to the lawyer.

Resolve your dispute !
Resolve your dispute !

Consequently, when any client approaches us relating to any kind of civil dispute, commercial, contractual, divorce, employment or any kind, we will always go out of our way to explain that in litigation there are rarely any outright winners and that the client should think very carefully about proceeding with litigation.

The 2 concepts in the Von Clausewitz quote are inherently interlinked. In most disputes which proceed some way down the litigation road, there comes a crucial point, where matters crystallise, and one or both parties realise either that their case isn’t as strong as they thought and/or that the costs of proceeding, both in terms of own costs or the risks of losing, are too risky to proceed further.

Many clients still decide to start a court case, on the basis that the other party will blink first – sometimes this does work, and if that is the strategy, it’s generally important to act swiftly and try to find the other party’s weak spot, if any, at an early stage. To use another Von Clausewitz quote :-

“a certain center of gravity develops, the hub of all power and movement, on which everything depends.  That is the point against which all our energies should be directed.”

It is worth bearing this approach in mind because the problem that can arise if such a strategy fails is ego, whereby there is often no telling a client to seek a sensible compromise if their initial plan fails. Objective consideration often goes out of the window and regardless of the cost, may clients are intent on “saving face”. These situations are common in many types of case but are particularly problematic with divorce and employment law cases where things are inherently personal from the outset.

Other options

In a situation where a client is not prepared to simply let things lie, it is always worth considering alternatives to litigation. Sometimes these are collectively referred to as Alternative Dispute Resolution (ADR). The 2 main forms of ADR are arbitration and mediation.

A very helpful summary of the differences between court litigation, arbitration and mediation is here.

For litigation advice, my colleague David Rosen is an excellent choice. If you would like to explore commercial mediation, please get in touch with me or visit our page about mediation.

David Swede • Disputes

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