Modern litigation is an alternative to older forms of conflict resolution, such as trial by combat. And, despite improvements in the litigation process over centuries, it may be surprising or even disappointing how similar combat and modern litigation continue to be.

Both are adversarial endeavors. Combat is decided by who can inflict a decisive blow to incapacitate his opponent; litigation is decided by which party can withstand a lengthy, expensive evidence gathering process and still be around to present evidence and testimony from witnesses, many of whom may have moved on to other work opportunities (perhaps even in other states).

Other similarities include the enormous costs and risks of engagement; the importance of strategy, courage, and conviction; and the fact that the parties can agree to stop fighting at any point in time and settle on an agreed-upon resolution. (In litigation, they almost always do.)

This article will discuss how to engage an opponent and make difficult decisions with resolve, efficiency, and confidence throughout the litigation process to increase your chance of a successful outcome.

Assess the Need to Engage

Just as common sense would steer you away from unnecessary physical combat, it should also pull you away from unnecessary legal combat. Two reasonable parties are more likely to resolve their dispute by agreement rather than engage in litigation.

So what does this tell us? When litigation occurs, at least one party may have discarded common sense in favor of combat. A necessary exercise in humility is to confirm that your company is not being unreasonable before engaging in litigation; from there, all litigation decisions should be made with the knowledge that your opponent may not be making reasonable choices.

Consider Timing

When you should file a lawsuit (or even whether you should file at all) depends on the answer to a single question: What action is most likely to bring about the most efficient and desirable outcome?

Sometimes there are advantages to filing as soon as it becomes clear that the other party is not taking your position seriously to avoid any unnecessary delay to the dispute resolution process. Sometimes there are advantages to slowly playing your hand while evidence is gathered, positions are solidified, or even to complete work on the project.

This is a very case-specific determination that should focus with laser precision on the ultimate goal of a successful outcome to the dispute.

Representation Matters

The outcome and duration of the litigation process largely depends on your representation. Your attorney’s job is to represent and assist your company with making difficult decisions.

If your attorney does not understand your company’s values, then it will be difficult for him or her to effectively represent its interests. An experienced construction lawyer assesses the legal aspects of both parties’ positions, the reputation and style of the opposing lawyer, and how a lawsuit might proceed.¹

Focus on Recovery, Not Justice

An idealized notion of justice should rarely be considered the objective of litigation. While a case could eventually result in one side feeling that justice was served, this usually comes after a lengthy trial and at a considerable cost to your company’s financial health and productivity as well as its employees’ time and emotional wellbeing.

Commercial law remedies are stated in terms of damages, not justice. Damages are a monetary award aimed to place the non-breaching party in the same (or as near as possible) condition had a breach of a legal obligation not been committed. A party to a lawsuit can only recover if it can prove the following:

1. The other party breached a legal obligation;
2. Damages “flow” from the breach;
3. Damages are reasonably foreseeable (unusual damages or damages that could not have been anticipated generally are not recoverable); and
4. Damages are precisely calculated.

For example, a subcontractor claiming wrongful termination by a GC must prove that it was performing the contract and that no grounds existed for termination. It must then provide a precise calculation (supported by evidence) detailing how much financial harm it suffered.