Litigation Can be Bad Business

Over thirty years of litigating commercial disputes have reaffirmed the importance of a lesson that I learned early in my career.  Even though litigation among entrepreneurs is considered by many part of the cost of doing business, the lack of pragmatism in dealing with these situations may go afoul to the client’s best interest.

At the inception of my career my mentor gave me a piece of advise that has been very useful in my years of my professional endeavors “a bad settlement can be more valuable than good litigation”.  Many court battles have instilled in me the importance of being practical in dealing with disputes between entrepreneurs.  The Rules of Professional Conduct that regulate the practice of law are quite clear.  The attorney must assume and recommend positions that are consistent with his/her clients’ best interest.

Hence, an attorney that recommends filing an unnecessary lawsuit or that unnecessarily prolongs an existing lawsuit violates the Rules of Professional conduct and the duty to the client. I would like to be clear, however, that on occasions, business owners have no alternative but to invoke a judicial remedy.  The lack of options is more evident when the business person is sued.  But, regardless of the circumstances that led to the Court, the situation should always be approached with pragmatism.  If one is considering filing a lawsuit, various factors should be taken into consideration.

First, the possibility of negotiating a pre-litigation settlement should be explored.  Even though the remedy obtained may be less than what one believes he/she is entitled to, it could be more than a judge or a jury would award and considerable sums have been saved in attorneys’ fees.  Secondly, one must consider the financial wherewithal of the potential defendant.  Ignoring this could result in a monetary award that is uncollectible.  One must be assured that attorneys that specialize in bankruptcy law are very capable individuals and with very little effort, they can avoid their clients paying monetary damages. 

Even assuming the potential defendant is a solvent individual, no attorney can guarantee a victory because many cases are decided on the credibility of  witnesses.  The opponent’s witness could be perceived as more credible by the Judge or the Jury even though he/she is not telling the truth.  Unfortunately, the truth not always prevails in a court of law.  Even though our judicial system is one of the best in the world, I can assure that it is not perfect.

Regardless of whether one is the plaintiff or the defendant, the final outcome will depend greatly on the skills of your attorney.  An experienced professional will employ all his/her resources to achieve a favorable outcome for the client, which could include negotiating a  settlement.  Litigation in the State of Florida includes a process known as mediation.  This process offers the parties the opportunity to resolve their differences with the counsel of their respective attorneys and the efforts of a mediator certified by the Florida Supreme Court. 

In conclusion, the decision to file a lawsuit or to settle a lawsuit is one that must be vested with pragmatism.  Apparently this approach is not very popular because the courts of this country are overwhelmed with cases.  Therefore, getting one’s day in Court will require a considerable investment in time and money.  This may be good news for my colleagues, but for a client it could be bad business. 

Luis A. González
Attorney and Mediator
L. A. González Law Offices, P.A

(407) 649 - 8389