I am a transactional attorney. What does this mean? This means that I spend most of my day helping clients handle matters involving general business disputes, contracts, business formation and legal compliance. However, my job does not routinely involve lawsuits or the multiple facets surrounding them.
Far too many people in the world today are under the impression that every lawyer has sued someone or something, and if you watch any one of the million televisions dramas or comedies involving lawyers, it’s understandable why. These lawyers spend most of their time suing fictional characters or businesses, spending hours preparing for court and most notably, hours billing their clients. While television isn’t really an accurate description of the lives of most litigation attorneys, it is accurate about one thing: suing someone or something is expensive, regardless of the circumstances.
I am drafting this article to discuss client options prior to suing someone, and those options include the threat of suing someone. Often times, as a result of those television shows, or the simple fact that a majority of attorneys are involved with lawsuits on a day-to-day basis, clients are unaware of their options outside of suing someone. In reality, many of today’s legal problems can be settled, as long as cooler heads prevail and both parties are actively seeking an equitable outcome.
How to Resolve a Dispute Without a Lawsuit
In most legal matters involving a business dispute, I almost always advise my client that contacting them through a letter is the best first (and hopefully last) option. These tactics can often times be less threatening (which believe it or not, can be a good thing), 99% of the time are significantly faster than litigation and, dare I say it, 100% of the time less expensive.
First, coming across as less threatening is often times a good thing. Yes, many times you want to “scare the pants off of them” with your letter, but lets ponder the effect of receiving a threatening lawsuit (or letter) in the mail. Often times, defendants (or potential defendants) utilize their “fight or flight” mechanism when receiving a lawsuit (or overly threatening letter); they either opt not to respond at all, thus prolonging the timeline and forcing litigation, or they straightforwardly deny any wrongdoing on their part, again, lengthening the timeline and prompting litigation. A letter, written with the correct amount of threat, as well as a good mix of factual background and legal precedent, is a good way to open the door for a potential settlement and efficient end to the matter, by not triggering people’s “fight or flight” response immediately.
Second, a letter (or series of communications) is almost always faster than filing a lawsuit. People recognize, immediately, that this process could (or better yet will) get very expensive if this proceeds to litigation. Additionally, in circumstances where the potential defendant KNOWS they have done something wrong, they have time to think about the potential of losing a lawsuit, which is unarguably worse than settling a dispute before filing with the court. Clients, over and over again, are always surprised with the amount of time involved in suing someone. Once a lawsuit is filed, all kinds of things come into play: rules of the court, dealing with a court’s congested calendar, dealing with attorney’s who only wish to prolong the case to increase billing, involving juries and such a large amount of motions, hearings and filings that I won’t spend time mentioning them here. The bottom line is, settling a dispute before filing a lawsuit will save you time.
Third, pre-litigation advocacy is always cheaper. Think about the amount of time involved with the items mentioned above: all of those things cost money. Many times, suing people involves the use of numerous lawyers. Different attorneys, of varying billing rates and experience, are used for research, simple motions, complex motions, evidentiary matters and appearances/time at trial itself, not to mention multiple other facets. While this doesn’t inherently mean that pre-litigation advocacy is never expensive, it does mean that you are bound to save money, time and energy by resorting to those tactics first, before filing a suit.
Consider All of Your Options
At the end of the day, pre-litigation tactics, when used appropriately, are much more efficient and pleasant way of handling a matter in this lawyer’s opinion. Please don’t misread what I have said regarding litigation attorneys: it is a fact that sometimes, many times, a party must be sued to effectuate an outcome. A series of pre-litigation letters and/or discussions do not always get the job done; however, whether this is because of an attorney who merely wants to sue, isn’t utilizing the correct tact or tone in their communications or because the defendant truly must be sued, is another question entirely.
Pre-litigation is always something that should be explored by clients, because when utilized appropriately, is an avenue that can be taken to find an outcome that soothes both parties, not only in terms of their watches, but their wallets and mindsets as well. For more information, call (702) 400-0000.
By: Matthew Hagerty