Red Alert! Battle Stations!

We often have clients who want us to start dealing with the other side with guns blazing, threatening or starting lawsuits without any wish to attempt a more conciliatory approach. 

Just last week, I was acting for a restaurant chain whose commercial landlord was threatening to evict them from one location over a long-simmering dispute about additional rent.  I suggested that I call the other lawyer, have a discussion and then decide if it was really necessary to litigate.  My client’s instructions were to fire off a snotty letter and gear up for court.

I find that approach isn’t useful.  You have to remember that most cases settle, so plan your strategy to encourage the other side to want to settle.  Starting off your dealings with the other side with the howitzers blasting isn’t going to set a good tone. 

A “shoot first, talk later” approach will run up the legal fees significantly in the beginning.  The more the parties spend on legals, the harder it is to settle down the road.   It is much better to spend that money on settlement.

There is another reason for a conciliatory approach.  If you start with guns blazing, without an attempt to settle first, and then you settle quickly, the guy that started with the guns blazing is not going to get good recovery of his costs, for the sole reason that he did not try a less expensive avenue.

Of course, settlement may not happen.  Clients may then think that you have wasted time and money by attempting settlement in vain.  However, if you try to settle and fail and, ultimately, the court buys into your argument, you will then be able to explain to the court that you tried to settle.  You will likely then be rewarded with a better costs order – one which will not only reward you for your time spent on settlement efforts, but will likely give you a greater costs award for the time spent since that time.

For example: last week, I was in court on a motion.  For four months, we have argued about a procedural matter.  When the other lawyer raised the issue, I wrote them a letter indicating the proper procedure (in my opinion) and advising that I would consent to the procedural issue if they dealt with it in that way.  Three times the other side tried to do it a different way.  Three times I wrote and told them that they were going about it the wrong way.  I gave them the specific rules and a case which supported my opinion.

Ultimately, counsel agreed to do it my way, but I now wanted costs for all the wasted time.  The court looked at all my correspondence and granted us costs of $3,000.  Three grand, all because I did my homework and wrote four letters! 

Always attempt settlement:  it can’t hurt.  If it fails, then gear up for battle. 

By the way, my restaurant client ultimately agreed to try to be nice first.