Why Litigation is not Always the Answer

As a trial lawyer and employment law attorney, I see a lot potential clients with a variety of grievances. Most often, clients see a lawsuit as a means to addressing a problem. I often counsel clients that litigation is not the proper course. There are a number of reasons why litigation should not be pursued. The most obvious reason is that the client does not have a cause of action; which is to say that he or she has no grounds for proceeding with a lawsuit. But there are also practical reasons why litigation may not be called for, even when there are grounds for a suit. In his classic book, "A Civil Action," author, Jonathon Harr describes the grueling ordeal of an environmental law suit that exploded into a nightmare. Litigation extracts an emotional toll and stress that is nothing short of punishing, both for the plaintiff and the defendant. The monetary costs of even the most mundane lawsuit are exacting. And the end result of much litigation, even if one prevails, often leaves one spent and frustrated. It is perhaps one of the ironies of law practice, that most lawyers rarely receive a sincere thank you for their services.

Most important, though, is the fact that alternatives exist. Oftentimes, both sides can reach an agreement without recourse to a lawsuit. Alternative dispute resolution has become a common method for resolving festering disputes. In one case, a client was being sexually harassed by her immediate supervisor. The client clearly had a good case and was quite ready to sue. However, the company's attorney agreed that the supervisor had engaged in unlawful conduct. After a series of meetings with all concerned, including possible witnesses, the case was resolved to the client's satisfaction. She kept her job, the supervisor was dismissed and she was compensated for her emotional distress. Conversely, an employer may which to terminate a relationship with an employee because relations have soured to the point of loss of productivity. Mediation, in such an instance, often leads to an agreement whereby the employee leaves on terms that will not hinder his future employment and income potential. In fact, I have heard it said, that litigation is an indication that somebody screwed up. Most valid cases settle and many more would settle if the parties participate, in good faith, in some form of dispute resolution.