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Realistic Expectations in Litigation

In Litigation, Realistic Expectations are Crucial

As a litigator, every client I meet asks me at some point during the case whether he or she is going to “win.” While reasonable, this question is difficult to answer, particularly when a client appears to have the facts or the law substantially on his side. If a client believes he has a strong case, he develops unrealistic expectations about its outcome and discount the often unpredictable nature of litigation. This is not a strike against him or her. The unrealistic expectations these clients develop are merely the result of a justifiable belief that they ought to win in such cases. I agree, with the facts and law on your side, you ought to win. Unfortunately, it doesn’t mean you will.

Let’s consider the term “win” for a moment. If a defendant must fight a frivolous lawsuit, even if a judge or jury decides wholly in her favor, has she really won? Her position in the lawsuit may have been vindicated, but chances are she has spent significant time and money to get there—money that may not be recoverable. Similarly, a plaintiff who is forced to file suit to recover damages may win, but what will the judgment look like? There is no guarantee a defendant will ultimately be able to pay damages or that the plaintiff can recover his attorney’s fees. Moreover, it is a fact of the legal system—necessarily administered by fallible humans—that sometimes judges or juries get it wrong. While there may be an opportunity to appeal, you are looking at yet more time, money and uncertainty.

There is no such thing as a slam-dunk case or an iron-clad defense. Those are, for the most part, legal unicorns. To believe otherwise is to risk being blind to the weaknesses of your case, which may cloud your judgment or cause you to reject reasonable settlement offers, even when settlement is the most economical and expeditious resolution to the case. In short, clients need lawyers who will remind them that risk is an inherent trait of litigation and even the best cases have potential downsides. Only then can clients and lawyers determine the best course of action in a case, be it settlement or trial.

If you are considering a lawsuit, or are already involved in one, we would be happy to help you determine the best course of action in your case.

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