The Risk of Litigating

Cases are settling. There are no big commercial trials anymore. Well, hardly any. It is challenging to be retained even on arbitrations; most of it is picked up by the retired judges. Of which there are many.
The Risk of Litigating

Cases are settling. There are no big commercial trials anymore. Well, hardly any. It is challenging to be retained even on arbitrations; most of it is picked up by the retired judges. Of which there are many.

These comments or subtexts can be heard at any cocktail party in which commercial litigators are gathered – and not only in Canada. At least one firm told Lexpert they are adapting by evolving their commercial practice to include more public interest litigation. My own speculation on this one is that governments may still be more willing to pay for litigation than most companies.

Why are corporate clients seemingly disinclined to pursue large-scale litigation? The usual answers, time and expense, are well-known, and indeed, law firms are responding to these complaints. The trickier issue is risk. At the end of a long trial, there will be a winner and a loser. There may be “part marks” sure, but ultimately after a process in which lawyers have argued oppositional points, a bench will choose one over the other. Some would say arbitrations are much the same.

And while corporate executives may be as competitive with others as they ever were, it is rarer to see them wanting to risk corporate stability for the prospect of “winner takes all” or more to the point, “loser loses all.” Are there ways to adapt commercial litigation so that it is not as risky?