Over the past few months, we’ve been collecting litigation nightmares through our website, email, and in person at conferences and events. After hearing hundreds of your stories, we found these nightmares can be narrowed down to a few themes:
- More cost than it was worth
- Discovery wars and abuse
- Being “home-towned”
- Frivolous suit (“I can’t believe they filed this suit”)
- One party does not actually want to resolve anything
- No clear litigation goal (and strategy to achieve it)
Without divulging the details of individual nightmares, I will be discussing the overall themes we noticed in general terms.
It was not surprising that the most common complaint pervading almost all the nightmares was that the experience ended up costing more than the dispute was worth – that is, more than the combined value of financial stakes, legal fees, forum fees and hidden costs like distracted time and damaged relationships. In fact, legal and forum fees alone typically consumed most or all of the financial stakes.
Nightmares caused by discovery wars and abuse faced many different challenges:
- Lengthy and harassing depositions
- Judges not understanding the true extent of a discovery request (usually related to eDiscovery records requests)
- Abusive document requests requiring review of millions of paper documents equivalent to 10% of the size of the Library of Congress (roughly X documents) only to have the other side choose 20 boxes (yes, boxes) of documents to copy for their use.
- Documents are costly to find and recover or unusable due to mold and rats in storage containers.
Discovery costs zoomed into the millions in some nightmares, in at least one case forcing a settlement of litigation the parties wanted determined based on merits! In another case, paying for a discovery master led to several hundreds of thousands of dollars in extra discovery costs. Even without trial, these types of discovery issues alone can inflate litigation costs to a size that outweighs what is at stake.
Getting “home-towned” in any court is no lawyer’s idea of fun. But when it is obvious, it is doubly no fun. These kinds of nightmares included being called by your last name when the judge is calling all of the other side’s lawyers by their first name, mediators not wanting to hear your expert witness’ explanation of the technology and how it works, and being sued in a very rural court where the judge was friends or neighbors with everyone on the other side of the litigation.
Frivolous claims were the culprit and cause of many a nightmare. Whether it was a suit filed by an at-will employee who was on the job for a mere three weeks before being fired, a suit filed to avoid a clear and admitted debt, or a suit that sought damages greater than 10 times what was arguably at issue, these kinds of situations by definition incurred litigation costs that outweighed the stakes.
We found in several of the nightmares it was clear that the parties suing didn’t actually want to resolve any honest dispute — they just wanted to make things as difficult as possible for a partner, competitor, or a former employer. In many cases they vindictively wanted to make things VERY expensive for a company who they believed would settle for an amount far beyond what was fair.
Finally, there are the nightmares caused by not having a practical in-house goal and strategy for dealing with litigation threats (for one-time cases and entire company litigation portfolios). Counsel who opted to take steps to identify and implement a creative and focused plan for anticipated kinds of cases significantly reduced their overall litigation cost.
In the end, there is one common theme shared by all of these nightmares: either pre-dispute agreement to, or early exploration and use of, a neutral-driven dispute resolution process could have helped resolve things in a far more timely and economical fashion.
Just Resolve offers a common sense, cost-effective, time-efficient option for those considering traditional Alternative Dispute Resolution to help those who want to “wake up” from their litigation nightmares and get back to business. Contact Sonya or Robert today to see how Just Resolve can help.