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Talking to the Other Side: A Critical Tool in the Practical Litigator’s Toolbox
By Jonathan B. Frank

You have probably heard the phrase, "to a carpenter with a hammer, every problem looks like a nail." The phrase rings true because the ability to solve a problem depends heavily on the number of different possible approaches that might work.

Business/legal problems are no different. In order to maximize the value of legal services provided to a litigation client, it is important for a litigator, like a carpenter, to have more than just a hammer in his or her toolbox. Of course, some business disputes absolutely require the hammer. The litigation system is set up to allow the hammer to do its job if necessary, and every litigator should be able to know everything about how to use the hammer. But it is a mistake to make the hammer the first option when other creative tools are available.

Why is the hammer often the mistaken first option? In part, because business owners may be under the impression that the only solution to a legal problem is formal litigation. This view has been perpetuated through the rise of big firm litigation practices, highly trained litigation specialists, and, believe it or not, the media. Courtroom dramas make good TV; negotiated settlements do not. Probably every litigator I know could tell you a story about a client whose first reaction to being involved in a business dispute is to "file a lawsuit."

Yes, filing a lawsuit may very well be a reasonable approach, just as quadruple bypass surgery might be a reasonable approach to a patient with heart disease. But, I would suggest, just as a cardiac surgeon should suggest a number of alternatives before recommending bypass, so too should a litigator focused on providing real value to the client explore a variety of other options before suggesting formal litigation. To put it bluntly, why crack open your rib cage if you don't need to. And if you think that analogy is too extreme, talk to someone who has been through two or three years of tough litigation.

Believe it or not, one of the most useful tools in a litigator’s toolbox is open communication. This may seem counterintuitive. Clients come to a litigator because a business dispute has, to use another medical analogy, metastasized beyond their ability to control and resolve it. Efforts to communicate productively have failed. But that does not mean that the problem is intractable. It just means that the client needs a different way to solve it.

I have developed a useful analogy to describe this situation. Many business disputes are akin to an elementary school playground fight about the rules of football. Deadlocked by the players' imprecise understanding of the rules, the game may come to a halt, as the teams place the football on the ground and "debate." At that moment, they have reached the limits of their own communication skills and problem-solving abilities. But order may be quickly restored when someone attracts the attention of the PE teacher. The solution to the problem may be much easier than any of the combatants could have imagined.

Because many business disputes, especially shareholder disputes, also evolve out of misunderstandings, a litigator may be able to help his or her client merely by clarifying each side’s rights and obligations, often through a conversation with the other side's attorney. In these cases, it is the understanding of the rules and the threat of litigation, more so than litigation itself, that creates the opportunity for resolution.

Even when the dispute is more complicated, lines of communication should stay open. After a complete exchange of information, experienced litigators can very likely predict a range of possible outcomes and costs. With this information, clients should be able to make reasoned business decisions well in advance of the ultimate fight. They prefer control over conflict. If they reach an impasse, a particularly difficult dispute can be resolved by using a mediator – a neutral third-party whose job is to find previously closed lines of communication and guide the parties to a settlement. Pre-litigation mediation is an increasingly common option in business cases precisely because the clients are able to maintain control.

Clients at the early stage of an unresolved dispute are often under extreme stress, even enraged. It would be easy for the litigator to take the client’s direction, grab the hammer, and "start a lawsuit." The client may feel, temporarily, like his or her gladiator has entered the ring, prepared for combat. But as the fight drags on, and gets bloodier and more expensive, the client will likely wonder if there was another way. There probably was.