Confessions of a Former Litigator:
How to Craft Truly
By Rob Christopher Legal disputes cost more and take longer than they should. As corporate
counsel, we know this in our bones. We may differ over why this happens, what costs
to include, and how much waste could be avoided, but we know it’s true. I submit that
this truth is most real and obvious in the 90 percent or more of all US business legal
disputes fought over limited stakes — financial stakes that will be largely or entirely
consumed by legal fees and related costs if litigated.
■ ■ The pros. In order to craft a real solution to the litigation process,
in-house counsel must retain the same fairness that is provided
in a conventional judicial system, and enable an investigation
that ensures each party has an opportunity to tell their story.
■ ■ The cons. In litigation cases that have limited stakes, superior
advocacy, relative economic strength, prolonged control over
one’s fate, and precedent do not make enough of a difference
to be worth spending the legal fees and related costs.
■ ■ Remaining neutral. Neutral-driven ADR (NDR) empowers an
independent judge, expert, or panel to conduct a stakes-sensitive
investigation into the scenario and, if necessary, decide the dispute.
■ ■ A mutual agreement. NDR is not a one-size-fits-all solution
to litigation, however it does limit the costs and distractions
associated with limited-stakes disputes. To ensure success,
in-house counsel should recognize this truth with their
counterparty and mutually agree to implement the solution.