I'll (Not) See You In Court!

See you in court

I’ve always loved litigators on television. I remember my father introducing me to Perry Mason; the old black and white series played on the local channel on weekends. I loved that Perry always got a confession on the stand. He was incredible. And then there was LA Law. And Ally McBeal, Boston Legal, all the Law & Order series, The Practice, The Good Wife. And more. All featured smart, fast-talking people who used their wits to win.

Of course, real life has very little in common with any television series.

In actuality, civil cases make it to trial in less than 5% of all filed cases. Less than 5%! That means the rest are either settled prior to trial, dismissed, withdrawn or simply abandoned. Why? Litigation is expensive, lengthy and messy. It rarely follows a straightforward trajectory. It takes an enormous amount of time and resources to adequately prepare.

But this article isn’t about mediation or arbitration or any other alternatives to litigation, except one: don’t start!

Let me put my disclaimer up front: sometimes litigation is the best and only alternative open to a business (or individual). I am not advocating against litigation, but against useless or mindless litigation.

So what’s the alternative?

Communication, to begin with. If you feel that someone has wronged you, try to resolve it directly. Too often, we are quick to assign bad motives and intentions to the other person, and saintly ones to ourselves. Talk. State (calmly) what you think the issue is and ask for their input on how to resolve it. I’ve been surprised by how often the other side not only gives me what I was hoping for, but a little more besides.

Treat them like you would want someone to treat you. The Golden Rule has application long past kindergarten, despite what some people think. When you raise the issue to the other side, talk to them like you want someone to talk to you when you’ve done something wrong. I often tell people that I don’t want someone coming to my office and making my day miserable – why should I do that to someone else?

Don’t be the first to escalate. Quite frankly, it’s a sign of weakness. Having to threaten litigation means you are out of arguments and that you are unable to persuade someone to your viewpoint. It draws lines, makes people think of hiring lawyers, and makes them unwilling to cooperate. Let them make threats. You think about solutions.

Please don’t take the fight to social media. Everyone thinks that writing a scathing review of Yelp will make them feel better. Until they get sued for defamation or libel. There are many such cases. It also can make you look weak and petty.

A few tips to help resolve issues outside of litigation:

  • Value the relationship. People can tell when you care about preserving the relationship (whether it be friendship, customer loyalty, or preferred vendor) and are working to do so.
  • Be Fair. Acknowledge any legitimate points to their side of the conflict otherwise you undermine your own credibility.
  • Prepare for the discussion. Think through the points you want to make, consider their possible objections, your responses, and your proposed solution.
  • Lose the killer instinct. Ghandi said it best: “An eye for an eye only ends up making the whole world blind.”
  • Let everyone save face. Try to give the other person a way to make you happy with causing embarrassment. Let people feel they did good, not shamed into action.

Sometimes speaking with a lawyer can help you have these type of discussions, to educate you about your rights, and what your course of action could or should be. But you can often achieve a favorable outcome simply by keeping your cool and truly communicating with the other side.

 

The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Francine E. Love
Principal attorney at Love Law Firm, PLLC which dedicates its practice to New York business law
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