Generally speaking, litigators are fire fighters. Fire fighters are told there is a fire; they are told the jurisdiction of the fire; they gather their standard fire-fighting tools (hose, ladder, fire truck) and they react. All very important if it’s your house on fire. The same is true for litigators. Litigators are told by the client a lawsuit has been filed; they are told the jurisdiction of the lawsuit; they grab their standard tools (a motion to dismiss, motion to transfer venue) and they react. Again, great if the client is on the receiving end of the lawsuit.
But wouldn’t it be better if the fire, and the lawsuit, never happened in the first place? Of course. Think of the time, effort and money that would have had to have been devoted to putting out the proverbial blaze that would be saved. The inescapable truth is, the best lawsuit is the one you never have.
Some find it counter-intuitive to push prevention as a litigator. Taken to its logical extreme, a totally effective prevention program would put litigators out of business. Why focus so relentlessly on prevention? Perhaps it’s that we are not traditional litigators. While we are happy to play reactionary, we find even more value in helping our clients save money and effort by identifying preventable risks and avoiding them.
As litigators, we are in a unique position to play a crucial role in preventive law. In litigating a breach of contract matter, we learn which clauses held up and which were deemed too ambiguous to pass muster. We could do nothing at the conclusion of the case, or we can ensure that our client revises all of its form agreements to prevent the same issue of ambiguity from arising once again. Or perhaps we are handling a false advertising matter and we learn that a particular phrase or business practice put our client at risk. Again, a wonderful opportunity to prevent the next lawsuit. Same thing applies to a dispute arising out of a sales transaction gone bad. The more routine or repeatable the business practice, the more opportunity for repetition of the same mistake. The antidote – prevention.
Will effective prevention put litigators out of business? In theory yes, but in reality, it’s doubtful. Prevention can reduce but not eliminate claims and lawsuits. It can mitigate the effects of litigation and it can help insulate a company from liability. So a zero-litigation world is a goal, albeit one that is unlikely to be reached. That doesn’t mean, however, that we shouldn’t do all that we can to identify and change the underlying behaviors that give rise to claims and litigation in the first place. That focus makes our customers better companies and better citizens. Every day we get closer to destination zero though, is a good day.