Keep Calm and Carry On

Sir Winston Churchill once said that jaw jaw is better than war war; and what is true for international conflict is no less true for legal disputes. The danger is that emotion rapidly takes over and rational thought and decision gives way to a quest for revenge and punishment. The role of the lawyer is to keep the client focussed on the realistic and the possible and to avoid giving into to pressure to pursue a course of action that may lead finally to disappointment by via inordinate expense and frustration.

The simple fact is that in most legal jurisdictions, Poland included, litigation is a far from ideal way to resolve a dispute. Litigation is slow, expensive and likely to deliver a result with which neither party is happy. This is hardly surprising – in most commercial disputes the parties, who know the most about the facts, are in effect asking a stranger (the judge) to reach a decision on the basis of second hand knowledge of the facts passed on by two sets of lawyers who have been paid to present these facts in a particular way in place of the agreement they could not reach themselves. In a previous article I wrote about a shareholder dispute which illustrates this point quite well. Justice may indeed prevail in these circumstances but it is not always given a fair chance.

One of the challenges is managing client expectations and persuading clients that litigation should be avoided. It may be clear from the facts that the client is on a sticky wicket and still the client insists on initiating legal action in the belief – certainly not the case in Polish commercial proceedings – that launching his claim first provides a moral or strategic advantage. The time, effort and expense of the litigation would be better spent on reaching a settlement rather than, in effect, throwing good money after bad. Too often, I suspect, settlement is seen a sign of weakness when the reality is that settlement is sign of strength in that it represents the commercially rational approach. The saving in time, money and emotional energy and the ability to concentrate on the business will generally far outweigh the supposed “loss” caused by not pursuing the last pound of flesh (especially where, as was the case of which I am thinking, the client’s contract was as ambiguous in a key point). However, sometimes a client simply insists and ploughs on despite better advice.

If you are facing a problem to which litigation seems the answer always ask your self what is the true cost – time and energy spent on preparing the case with your lawyer, legal and court fees, distraction from running the business – and measure this against the amount at stake, the recovery of something via a settlement and the commercial advantage of being able to concentrate on carrying on your business without the distraction that litigation inevitably causes.

This is not to say that litigation may not be appropriate in some cases. Where the facts are not in dispute or where it is necessary to enforce a clear legal right, then litigation may be the appropriate course of action. Indeed, litigation may be the only option where all else (including an attempt to settle) has failed – but it should always been seen as a last resort and beware the lawyer who suggests otherwise.

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