Mike Dillon, General Counsel for Sun Microsystems, Inc., published a great blog called The Legal Thing. In a blog post entitled On Litigation…(Azul), Mr. Dillon shared his “four principals” for evaluating when litigation is appropriate. I thought his comments were dead on, and applicable to any form of litigation – including probate litigation. I’ve reproduced his four principals below with my practice-specific comments:
No. 1 – You only litigate when you have an important interest to protect. Litigation is costly. Incredibly costly. But it is not the expense that is the real issue, it’s the diversion of resources. Time employees spend reviewing e-mails and documents, educating lawyers and preparing for depositions is time away from the business. That’s the real cost of litigation.
Probate comment: Ask your lawyer to assume the worst case scenario and then estimate how long you should expect the process to last (1 to 2 years is the norm) and how much it will all cost (it will always be higher than you expected). Then ask yourself, “is it really worth it?” If the answer is yes, then proceed to point no. 2, otherwise stop immediately and move on with your life.
No. 2 – A non-judicial resolution is almost always preferable. When you file a complaint, you are turning over resolution of an issue to a third party – be it a judge, arbitrator or jury. To a great degree you lose control of the outcome.
Probate comment: In the probate-litigation context, every penny spent on legal fees siphons off a piece of the family inheritance to a third party: the lawyers. The quickest way to stop the bleeding is to settle the case. “Privatizing” the dispute-resolution process should be a no-brainer in this type of litigation.
No. 3 – You litigate when you have a high degree of confidence that you will prevail. Bluffing is for weekend games of Texas Hold’em . When you file suit, you need to have fully evaluated all aspects of the case to ensure that the outcome will be favorable.
Probate comment: Pick your battles carefully. This is where lateral thinking pays off. In the probate-litigation context there are often multiple approaches to achieve a desired result. Some approaches usually favor the defendant, some usually favor the plaintiff. Depending on what side you’re on, play to your strengths. How you address this point no. 3 will inform points 1 and 2 above.
No. 4 – You litigate to win. This means that your employees, board and management team fully understand and support the commitment (both financial and time) required to prevail. It also means having seasoned litigation counsel who understand your business and objectives.
Probate comment: Litigation is not a negotiation strategy. Once you’ve decided a lawsuit is your last best option, you need to be willing to see the process through to the end.