Abraham Lincoln said, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
In the many years since, some lawyers have heeded Lincoln’s sage advice, and many have not.
Martin was the managing partner at my first firm. He was an old-style litigator who did not subscribe to this wisdom. He had a little statuette on his desk emblazoned with the motto, “Sue the Bastards.” I am told that he practiced Family Law in the bad old days when private detectives climbed up fire escapes and peered in windows looking to get pictures of spouses ‘in flagrante delicto,’ or, for those of you whose Latin is even more limited than mine, ‘doing it.’
As a corporate lawyer, I did not immediately see the relevance of Martin’s practice philosophy to my job. In the world of business we strive to reach ‘alignment.’ (As an aside, I think that the term ‘alignment’ is dumb. The first time I heard it, I was speaking to a client who used that word at least fifty times in a conversation. It took me a while to figure out that she was not talking about her car.)
In my Business Law practice, I used to say that my role was to keep matters away from the litigators in our office. There are many reasons why litigation should be a last resort. For one thing, even the very righteous client who eventually triumphs with a big win at the end of a lengthy trial and obtains a substantial cost award from an opposing party will still never be able to recoup all of the time, money and emotional and intellectual resources that have been sucked up in the process. That has been obvious since Lincoln’s days.
Good lawyers know this. They have the skills to encourage parties to reach agreement. They know how to talk their clients down from the ledge and bring them to the boardroom table (whether real or virtual). When trying to convince clients of this, they sometimes say, “a bad settlement is better than a good trial.” There is some truth in that.
On the other hand, some people really need to be sued. To them, disputes are all about bullying the other side into submission and the only way to put an end to their nonsense is to call their bluff and hit them (figuratively speaking) as hard as possible.
Over the years I saw some lawyers who did not understand this. They would waste their client’s resources trying to negotiate a settlement that was never going to happen. Perhaps they believed too strongly in the inherent goodness of people (although a career in law will usually dispel that particular myth) or the possibility of reaching a settlement, or maybe they were afraid of judges, or just did not want to give up the file. I am sure that there are a myriad of reasons that some lawyers keep negotiating well pass the ‘best before’ date for a reasonable settlement.
I was not a litigator, but for most of my career I practiced law in a firm which had a strong litigation department. I had absolutely no hesitation to refer the client to a litigator when necessary. Because, in the end, sometimes you just have to sue the bastards.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.