An $854,000,000 verdict should not exist. Here's what clients and lawyers need to know about litigation.

Every lawyer I've ever met can bull-dog their way through a case. But it takes foresight, reason, humility, and even creativity to avoid more fighting than is necessary.

The first lesson I recall learning "on the job" (as a "big law" summer associate before I was even a lawyer) was that for every questionable case or argument, a client is requiring or urging the attorney onward.

20 years later, you can add to that observation: or an attorney who is not properly managing their client. 

The amount of work, and the potential value, that goes into avoiding and resolving disputes cannot be overstated. While there are bet-the-company trials that must happen, the vast majority of cases settle. And most don't settle early.

Here's a case-in-point. In 2015, Plaintiff (Syntel), a systems services provider, sued Defendant 1 (Trizetto Group), a health tech company with claims processing software, after Defendant 2 (Cognizant), the Plaintiffs' competitor, acquired Defendant 1. The claim: Defendant 1 misappropriated employee-data and poached employees. The Judge ultimately ruled that Plaintiff did not actually employ anyone; the contract's "No Poaching" clause could not cover their affiliates as written. (Syntel v. Trizetto, 2020 WL 1911205 (SDNY 4/20/20).) But before that happened, Defendant 1 countersued Plaintiff for misappropriating trade secrets. Plaintiff alleged it was allowed to use the data under contract. Those claims went to trial, but before they did, the Judge granted Defendant's motion to realign the parties. Plaintiff lost control of the theatre before the battle ever started and met the jury as the Defendant.

The jury awarded $854,000,000 (not a typo). Apparently, it was the first SNDY Zoom trial, and I bet someone regrets that decision very much.

To make matters worse, the Plaintiff-cum-judgment-debtor secured a defense from its E&O carrier for the counterclaim, but during the five years of litigation, it apparently burned the primary $10M layer. The excess insurer with the next $10M layer denied coverage, and the verdict now mandates another lawsuit. (Syntel v. Ironshore, 2021 WL 712596 (SDNY 2/21/21).). And don't forget the appeal and probably more litigation on remand. My wild guess: whatever is left of the verdict will be settled! Or the judgment-creditor can get in line in bankruptcy court against a holding company with no employees and an insurance problem.

What may have started as a squabble over poaching affiliated employees has turned into actual bet-the-company litigation because of litigation.

Client's do not hire lawyers for half measures. But: vigorous litigation begets vigorous litigation. I doubt whether the threat or pursuit of vigorous litigation has ever been met with surrender. A threat is met with a threat—a lawyer's demand, with yet another lawyer's demand—Newton's Third Law.

Not long ago, my partner and I filed an arbitration demand for $7M. After that hearing, a federal alter ego litigation, and multiple special discovery and enforcement proceedings around the country, the total hole that the real-parties-in-interests (the clients urging their lawyers to defend vigorously!) had to fill was nearly tripled. But it got filled. Another resolution that litigation made far more costly.

Some of the best work I've done is the litigations that didn't happen:

• A phone call that avoided a lawsuit;
• Letters that convinced a lawyer sniffing around to "sniff elsewhere;"
• A summons with notice that convinced an employer we had something to talk about;
• A tolling-agreement that avoided service, allowing me to collab with a would-be adversary against a single defendant, which ended in mediation. 

I certainly didn't discover this "Zen of Litigation." The secret has been out for some time, allowing me a naked appeal to authority: "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough." (A. Lincoln)

Litigation should not be the only choice on the menu.