When Should You Try to Solve a Problem Outside of Court? (Hint: Almost Always!)

It may be surprising to hear this from a litigator, but I roll my eyes every time someone threatens to sue. Many problems are more easily, cost-affordably, and readily solved by civility, and perhaps even an apple pie.
09/29/2016 02:55 pm ET Updated Sep 30, 2017

It may be surprising to hear this from a litigator, but I roll my eyes every time someone threatens to sue. Many problems are more easily, cost-affordably, and readily solved by civility, and perhaps even an apple pie. While your first call should be to a qualified attorney to discuss the facts, your rights, your obligations, and your alternatives, the focus should be on upfront resolutions rather than the immediate filing of a complaint.

The law is, perhaps in its most basic form, about remedies. Assuming someone has wronged another, the question becomes: so what - meaning how have you been harmed, and now what - meaning what are we going to do about it?

The preliminary question, then, is "What's your damage?" If you just feel insulted, move along. The law can't make you whole. Judges typically won't require someone to apologize, and a forced apology probably isn't going to make you feel better anyway. If you think you should have negotiated a better deal in business or in real estate, move along. The Court won't re-negotiate an otherwise fair deal for you just because, in retrospect, you think you left a few dollars on the table. If you had to spend a few dollars and a little time fixing something that broke after the deal closed, and feel you should have been warned about the potential that it might break, but ultimately the problem is solved, move along. It's not worth your time or money to ask the law to make you whole. And in some cases, you may be chasing money or assets the seller no longer has.

For minor problems, consider taking a deep breath, making a friendly phone call, explaining the situation in unbiased and non-accusatory terms to the other side, asking for their thoughts on resolution, and coming up with a mutually agreeable solution. The solution may not be perfect, but you will buy peace with a far lower investment than months (or years) of attorneys' fees, the time value of that solution, and litigation-related headaches and stress.

This can be true of bigger problems, too, though it may require more than just a phone call. I have guided several clients through the resolution of serious real estate disputes by suggesting that they take a fresh-baked apple pie over to the neighbor to discuss the placement or repair of fences on residential property, and helped a client negotiate a deal about borders on commercial land over an oceanfront lunch. When another client needed to negotiate the construction of a shared driveway in an industrial complex, football tickets and loyalty to the same team proved to be the recipe for success, and we were able to get the deal inked in record time. We have structured creative solutions involving the placement of trees and donations to a favored charity, and have bought peace in a way that enabled people forced to see and do business with one another every day to remain friendly. In the midst of a partnership dispute that threatened to divide a client company, a partnership retreat at secluded lodge saved dozens of jobs. The four co-owners, who had clashed on a variety of issues ultimately came to a (lawyer-facilitated) agreement on a buy-out that would leave the partners who wanted to continue the business at the helm, and the partners who wanted to explore other opportunities free to do exactly that - with a little start-up capital.

While these are undoubtedly big issues having to do with property rights, business ownership and operation, partnerships, taxation, and large sums of money, the solutions were achieved without threats and confrontation, without the parties or their attorneys beating their chests, and with the shared understanding that these problems were better solved cooperatively and quickly. And, through their lawyers, the agreements were reduced to writings that clarified each party's roles and responsibilities, and contained appropriate enforcement mechanisms to limit litigation exposure.

Non-lawyers have difficulty understanding quite how time-consuming and stressful lawsuits can be. And, after they are filed, cases take on a life of their own. By the time you realize you're best off walking away, it may be too late. Worse, you may have to duke it out, then find that the person you've been chasing doesn't have a dollar to his name. In business, nothing is more frustrating than throwing good money after bad.

Parties to any dispute are almost always better off attempting to find common ground (with their attorneys' advice and counsel, and with their attorneys reducing the agreement to writing) than simply threatening a lawsuit and making a mad dash to the Courthouse. While there is absolutely a place for litigation in society, it should be a last resort, reserved for those who have attempted to solve their problems amicably, but have simply not been able to do so. Ask any litigator.

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or rely on any information contained in this article without first seeking the advice of an attorney licensed to practice in your jurisdiction.