THE PURPOSE OF LITIGATION
Updated: Apr 28
To understand what a Litigator does and why he does it, I went back to the drawing board
Well, back is not really the right way to put it. Actually, I went to a place I had never been before, which was the general understanding of how Litigation came into being in the first place. Why, I asked myself, do we even have it—what is the purpose of Litigation?
That may seem like a funny question given that I had been trying cases for quite a while by the time I finally posed it to myself. How could I have engaged in something so long without thinking about why I was doing it? Somehow I had managed to focus very intently upon the trees of Litigation without giving the forest much consideration at all.
It was very different with my first career as a soldier
From my first day in the Army I knew exactly what my purpose was—to prepare for war. Because nations are prone to disputes that they cannot resolve, war is sometimes inevitable. What history has shown us (ironically) is that the best way for a nation to avoid a war is to be prepared to win it. That is why soldiers exist.
Sitting at my drawing board, I realized that something similar was true of Litigators. We exist because people (like nations) are prone to disputes that they cannot resolve, which makes trial sometimes necessary. What my experience as a lawyer had shown me was that the best way to avoid trial was to be prepared to win it. That is why Litigators exist.
A trial, like a war, is a costly exercise that yields a single winner and loser
And, just as the fear of losing a war can defuse bellicosity, the threat of an adverse judgment that might result from a trial can induce the parties to resolve their dispute by settlement. Just like war, a lot can go wrong in trial. The closer the belligerents get to either, the more clearly they will see the advantage of compromise over battle.
Litigation resolves disputes because it forces the parties to confront a finite and unalterable set of possible outcomes. There will either be a judgment, a settlement or the full and unilateral surrender by one of the parties. Any one of these three outcomes will put the controversy to rest because it will exhaust the Parties’ legal rights, and exhaustion is a key component of Litigation—in more ways than one.
Disputes, like wars, don’t truly end until the combatants are exhausted from fighting, and Litigation provides a non-violent forum for that battle. It brings Disputes to a firm and final end
Understanding this helped me realize that my job as a Litigator was not that different than it had been as a soldier. Preparing for and (when necessary) engaging in trial was analogous to preparing for and (when necessary) engaging in war. Both are processes of dispute resolution, the key difference being that soldiers march toward the sound of the guns while Litigation is a march to trial for the sole purpose of resolving a dispute.