Should the road to litigation be the one less traveled?

By Jonathan Schmidt / Guest Column

What are some considerations to remember when deciding whether to litigate?

Lawyers are problem solvers for people, businesses and other organizations and entities. While sometimes lawyers are not engaged until a problem already exits, it’s preferable to seek legal representation before and in anticipation of potential clashes down the proverbial road, just as it’s preferable (and legally required) to buy car insurance before and in case there are crashes down the literal road.

Agreements are routinely drafted which explicitly spell out the expectations and rights of each party involved in a contract. Each contract contains implicit requirements of good faith and fair dealing. Common contracts are drafted between customers and businesses (such as a driver and an insurance agent), employees and employers, businesses and vendors and the principles and vested parties of partnerships, corporations and other organizations.

Detailed and careful language is used to prevent ambiguity and mitigate disagreements should a conflict arise. Just as an insurance policy cannot prevent an accident, an existing contract, no matter how detailed, precise and forward thinking, is no guarantee that disputes will not occur.

Litigation is a legal remedy which allows an independent judge or jury to determine the facts of a dispute or conflict within the context of the law, and then determine the outcome of that litigation.

When disputes arise, what are some considerations to remember when deciding whether to litigate?

Cost: Trials are more lengthy than other settlement avenues, which naturally means more expenses and attorney fees.

Awards: While costs may be more, trial financial awards are sometimes more as well.

Duration: Your attorney will try to resolve your situation quickly and diligently, however the wheels of justice, as they say, turn more slowly than other dispute resolution means.

Public vs. private: Trials are public record, while other out-of-court settlement methods are usually private.

Uncertainty: Should you roll the dice? Settlement remedies allow for the eventual agreement of terms by and for each party. Trials do not allow for the parties to have any control over the outcome, and so are much more unpredictable; there is always uncertainty about your success at trial. By contrast, you can work with the other side to come up with a settlement agreement you can both live with.

There are reasons to pursue litigation and reasons to avoid it, particular to each dispute, and there are other options.

Settlement by Other Means – Alternative Dispute Resolution (ADR) includes (among others):

  • Mediation, a process in which a neutral mediator listens to both sides of a dispute and then assists the parties in finding an agreeable solution.
  • Arbitration, in which an independent third party presides as a judge would, both sides present their respective arguments, and then the arbitrator decides the best solution.
  • Expedited civil action, a process most like regular litigation, but less expensive due to simplified rules and accelerated timelines.

Which path will make all the difference – settlement or litigation? That decision will be particular to your case, circumstances, resources and resolve. Disputes are often emotionally charged, time and resource consuming, and they very rarely are an entirely positive journey.

A good lawyer will be with you along the way – from crafting a contract to steer clear of conflicts, to skillful advocacy for your best outcome should a conflict become unavoidable.

Jonathan Schmidt is an attorney and partner with Nazette, Marner, Nathanson & Shea LLP. He practices in areas of business and litigation. He can be contacted at or