It makes the sales pitch all but
impossible, but you have to be honest. Litigation is costly,
time-consuming, stressful and unpredictable in outcome, however clear
the facts and law might seem to be. Clients can think that when
their lawyer points this out to them it is just a back-covering
exercise in case things go wrong later, or that the risk isn't really
that great because the facts and the law are so clearly on their
side. It can therefore be helpful to put it this way. Most
disagreements in life settle without a lawyer being instructed. Most
legal disputes are resolved without the need for court action. Most
actions that are raised settle before judgment. So, the cases that do
end up going to judgment after proof or debate comprise the tiny
percentage where both parties have decided that the time, worry, cost
and risk of proceeding all the way are worth it because they're going
to win in the end. And 100% of the time, one of them loses.
For all those reasons, commercial
litigators know that one of their first duties is to try to persuade
their client not to use their services at all, at least in the sense
of avoiding litigation. Even once action is raised, they must always
be thinking about whether an acceptable settlement can be negotiated
before the fee explosion that accompanies a proof hearing.
