By: Roger J. Buffington, Esq.
Business litigation, in common with many other forms of litigation, is akin to a battle. Both sides are compelled to devote time, energy, and financial resources in order to prepare for trial. Obviously no one ever wants to begin trial unprepared. In litigation, the adage is “if you fail to prepare, you must prepare to fail.” Nonetheless it is a fact of life that most litigants do not have limitless resources. It is also sometimes the case that the other side has greater resources to devote to the litigation than your side does. Sometimes the opposing side genuinely has greater financial wherewithal. Not infrequently, the other side may simply have greater motivation as well. A rational litigant wants to prevail in the litigation, or negotiate a suitable settlement, without spending more money than necessary and certainly not more money than the outcome is worth. But winning is always the objective.
Most business litigation disputes are a financial calculation. A plaintiff normally does not want to spend more money pursuing, for example, a breach of contract claim than the litigant stands to gain by winning the case at trial or settling the case through negotiations. A plaintiff’s lawsuit is a financial investment in which the party should expect to obtain more benefit than the cost of pursuing the claim. A defense case is essentially an exercise in cost control. Normally the rational goal of a defendant in a business dispute is to either prevail in court or settle the case out of court for as little cost as possible. Given that attorney’s fees are not known for being negligible, this can be a challenge.
There are many ways to meet this challenge in either a plaintiff case or a defense case. A skillful litigation attorney knows that he or she must be mindful of costs. While every lawyer naturally loves a case in which cost is no object, few cases are like that. There have to be trade-offs. For example, there may be a certain number of critical witnesses that the attorney intends to call at trial. In a perfect world the attorney would prefer to have taken the depositions of perhaps all of these witnesses. In a seven figure case this might be practicable, while in a six figure case that is rarely practical due to time and cost considerations. So the attorney must make trade-offs. The attorney may have confidence in some witnesses testifying along the expected lines. For these witnesses, the attorney may simply dispense with the deposition, instead relying upon informally interviewing the witness without “locking in” the testimony of the witness by taking his or her deposition. Skillful use of written discovery can be another way for the attorney to prepare for trial without “breaking the bank” in terms of the litigation budget.
At Buffington Law Firm we view every business litigation dispute, trust dispute, or real estate dispute as a financial investment by the client. This means that the objective must be not only to prevail (or settle on terms that equate to prevailing) but to do so at a cost that is acceptable to the client and which is commensurate to the value of the case.
If you are involved in a business litigation, trust, or real estate dispute, Buffington Law Firm invites you to contact us for a free legal consultation to discuss and evaluate your case. All consultations are with an actual experienced litigation attorney and are confidential and protected by the attorney-client privilege. And there is never any obligation.