Say you're planning an excursion to the beach. Would it make sense to suggest that the best way to get there would be to head in the opposite direction, toward the desert? When your passengers question that route, the only excuse you might have to offer is that after they spend a few hours driving around in the dry heat, they will appreciate eventually getting to the beach even more. But they probably would have arrived at the beach in a better mood if you had taken them on a more direct route.
One commonplace saying I've heard over the years from litigators is that the best way to get a favorable settlement in a lawsuit is to prepare the case vigorously for trial. The statement recognizes that the vast majority of cases are not going all the way to trial, but instead will be resolved at some point along the road by negotiated agreement. Litigators can nevertheless justify the expenditures of time and money necessary to prepare for an event that in most cases will never happen, by claiming that this activity helps produce more favorable settlements. The rationale goes something like this: If the other side knows that we are prepared, that will help them recognize they might lose at trial, and they are more likely to back down to some extent in settlement negotiations. And if we don't settle, we won't get caught with our pants down. We'll be prepared for any eventuality.
Of course any good trial lawyer should be prepared if the case goes to trial. But most trial lawyers recognize that a lot of litigation activity doesn't have all that much to do with good trial preparation, and ends up being discarded or disregarded at the time of trial. Often, it seems to have been done for some other purpose. And for the vast majority of cases that settle, such activity often seems to take the parties in the opposite direction from the negotiated settlement they are eventually going to reach.
The truth is that litigators file a lot of motions and get into a lot of discovery battles, because the opportunities to do so present themselves naturally and that is what we have been trained to do. We rationalize these activities as necessary trial preparation, which might be useful whether the case settles or not. We are unfamiliar or uncomfortable with the sorts of activities that might actually help the parties down the road to resolution of the conflict. And we sometimes underestimate the costs both in dollars and in negative feelings, that are created by litigation. In other words, we are often furiously driving in the wrong direction. If we expect to take a dispute toward a negotiated resolution, we ought to spend more of our time and energy doing things that help parties reach that goal.
By Joe Markowitz