When not to litigate

Clients arrive angry, and often justifiably so. Someone has not paid, or has taken something, or has broken a promise that was clearly made. The lawyer's job at that moment is not to match the anger but to answer a narrower and less satisfying question: is litigation the best available route to what you actually want?

Sometimes it plainly is, and then it should be fought properly and without hesitation. But the question deserves an honest answer first, and there are four parts to it.

Can the other side pay?

A judgment against a shell with no assets is an expensive piece of paper. Establish recoverability before you commit to the process, not after you win. That means looking at what the counterparty actually owns, whether the assets sit in the entity you would be suing, whether there are personal guarantees, and whether there are other creditors ahead of you.

If the honest answer is that a win produces nothing collectable, the conversation should turn to leverage rather than litigation — and there is often more leverage available before proceedings than after.

What will it cost in time and attention?

The professional fees are the visible cost and the easiest to plan for. The founder hours spent on document collection, witness preparation, instructions and hearings are frequently larger, and they are almost never budgeted. A contested commercial matter can absorb a meaningful share of a senior person's attention for years.

For a small company that cost is real even when the fees are covered. Ask what else that attention could be doing.

What does the paperwork actually say?

Contemporaneous documents decide most commercial disputes. Not what was understood, not what was said on a call, but what was written down at the time by people who did not know it would later be read in court. If the correspondence does not support your account of events, the moral strength of your position matters considerably less than it should.

Read the file before you form a view. Clients are sometimes surprised by their own email history, and it is far better to be surprised in your lawyer's office than in cross-examination.

Is there a commercial outcome that beats winning?

A negotiated resolution in eight weeks is frequently worth more than a favourable judgment in four years, particularly where the relationship has residual value or where the counterparty is a customer, supplier or peer you will encounter again.

Settlement is not a failure of nerve. It is a commercial instrument, and it is available at every stage — before filing, after pleadings, on the courthouse steps. The terms available generally get worse as positions harden and costs accumulate, which argues for trying early rather than as a last resort.

And when the answer is yes

None of this is an argument against litigation. It is an argument for entering it deliberately, with a clear view of the cost, the timeline and what a win is actually worth. Where a matter should be fought, it should be fought properly: pleadings that hold up, evidence assembled early rather than scrambled for, and realistic reporting on where the case stands rather than reassurance.

What clients are entitled to is a candid assessment before they commit. A client who spends two years and a large sum on an unwinnable claim has been failed by their lawyer, not by the court.