When to Litigate

Choosing litigation is like a call to battle. It is a complete commitment that demands amazing amounts of time, energy and, of course, cash. It can be difficult to know just when litigation is the right approach.

Certain Disappointments
Sometimes litigation is chosen even when there may be better, less expensive and timelier solutions available. If you are looking for satisfaction in court, it may be wiser to look elsewhere. Court is full of disappointments and often, especially in families, long held, troubling memories. This is especially true when children are included in the family battles.

“My Day in Court”
Some people choose litigation so they can get their day in court. Often this leads to disappointment. In court lawyers argue about narrow legal issues that are often quite detailed and incomprehensible in every day life. The judge needs to decide the case on these same narrow legal grounds.
Judges cannot take the time to learn all of the details surrounding your case. They are not available to listen to your perspective and to see how difficult and unfair your conflict is. In truth, that is not their job.
If you are looking for someone, a real authority to hear your heartfelt concerns, decide who is right and wrong, and settle the matter once and for all, then the courtroom will likely prove unsatisfactory.

“An Open and Shut Case”
Sometimes litigation is chosen because the case is “open and shut”. This perspective is likely to lead to disappointment. Almost nothing is so black and white in court.
There is an old gypsy curse that says, “May you have a lawsuit in which you know that you are right.” Lawyers will make strong arguments for both sides in a conflict. In fact, it is likely that they will make many strong arguments. Since the law continues to evolve and the ability to persuade is necessary in court, many outcomes are possible. Unexpected judgments occur with regularity.

“Once and For All”
It is sometimes argued that a court judgment is “once and for all”. It is, after all, the law of the land. Of course, there is some truth here, but only partially. In the end, this perspective will lead to disappointment.
First, the final judgment may not directly concern what the family is actually arguing about. It is not likely that a judgment will indicate that one party was dishonest, morally bankrupt or evil, even if that is your deepest held belief and desire. More often the court will simply say who gets what.
Second, the judgment isn’t final at all. There may be many opportunities for appeals and attempts to set aside the initial judgment. All of these challenges need to be addressed with continuing commitment of time, money and emotional energy.

“The Court Will Enforce the Judgment”
It is sometimes argued that it is best to go to court because the court will enforce the judgment. And this is true, up to a point. There will be a judgment and there may be orders to pay, but these orders are ignored regularly. This is the case with deadbeat dads. If you are looking to the court to fix this for you then you will likely be disappointed.
Judgments are resisted, often with amazing tenacity. However, negotiated agreements have a high level of compliance. When someone has a role in deciding their fate, they are much more likely to see the agreement to completion.

When to Litigate
Still there are times to litigate. Chosen carefully, litigation remains an important and necessary option for settling disputes. In fact, a very small percentage of disputes will not ever settle without going to court. Here are the most important reasons to choose litigation.

The Other Party Will Not Work Toward an Agreement
Generally, those who will not work toward a settled agreement have high conflict personalities. These people can be very difficult indeed. Often they see the world in all or nothing terms. They view every effort at compromise, shared responsibility and cooperation as a deep threat to their very person. This is exactly how it feels to them, despite how they are behaving. These people may be consumed by feelings of inferiority, fears of abandonment, fears of being dominated or fears of being ignored. They are not good candidates to work together for a common solution to end the conflict. Litigation may be your only option.

The Law Isn’t Clear… Yet
New situations arise and over a period of time the courts can establish a standard way of handling these disputes. Is does not happen very often, especially in family conflicts. More likely, the facts of the case are in dispute, not the law. The judge will need to decide, on very limited time and information, which claims he will honor. In many cases the parties are playing a long shot, hoping the judge will see things their way.
So if you and your lawyer are to determine that this situation has not happened before, then litigation is reasonable, otherwise, there may be a better and wiser solution to your dispute.

Court Powers
The courts do have unique powers in our society that cannot be completely replaced in any other forum. The court can demand compliance with discovery. There are people who will withhold information that is important to a reasonable settlement. Legal and financial records withheld will adversely effect any mediation or other settlement effort.
In a similar way, there are times when witness will need to be compelled to appear. If they are reluctant and unwilling the court can find them and make them appear.

Appeals
Though some consider the finality of a court decision to be it’s greatest strength, it is really the ability to appeal that makes court so attractive in some situations. If the lawyers or judge simply get it wrong there is another opportunity to straighten things out. This is generally not true in arbitration or mediation.
The appeals process allows you to attempt to fix a bad decision. Of course, it is time consuming and costly, but it is possible. In some circumstances, it may be your best option.

There are times to litigate. If the other party is unable or unwilling to negotiate a settlement to the dispute then litigation will be required. Also, if they refuse to produce full discovery or witnesses are unwilling to cooperate, then the powers of the court can be called upon. When the law is not yet clear then litigation may be desired. Finally, the opportunity to appeal an unexpected or undesired outcome may make court especially appealing.
The need to litigate doesn’t come along very often. Most cases are settled sooner or later. Sometimes the threat of litigation moves them toward settlement, but often it slows down the process. When threaten with litigation, constructive talks can breakdown entirely. This adds to the costs in every way.