Legal Commentary

War is the last of all things to go according to schedule.

-- Thucydides (460 BC - 395 BC) in The History of the Peloponnesian War.

Bill Turner of Womble Carlyle recently wrote that "every day, C-level executives are required to make decisions that are even more uncertain and consequential than lawyers' fees for open-ended litigation.  Should an aircraft manufacturer develop a new line of planes.  Should a widget manufacturer open a new plant? Should a company sell a division?"  The list could go on at some length.  Many of these decisions made in the face of great uncertainty affect the future of the company far more than most lawsuits. 

So how do we reconcile the uncertain cost of war with the requirement that C-level executives insist on budget certainty?  Well, the first answer might be that litigation is not war, any more than football games played every Sunday during the fall.  Both use the language of war, and both try to elevate their importance through the comparison, but neither comes close.  But that answer is too easy.

So let me try this one.  When one goes to war, one looks at a number of things, including the geography and natural resources of one's enemy.  For example, US forces in Iraq were not allowed to go through Turkey at the outset of the war.  Plans had to be changed.  The amount of money the country is prepared to spend is not limitless.  Plans change.  Strategies and approaches change based on many factors, and cost is obviously one of them.  One should be willing to handle a lawsuit involving  $100,000 of damages differently than one involving $100,000,000.  If you're prepared to proceed differently in the smaller case, why can't you proceed in that same fashion in the case involving more money if the client is willing to assume the risk of doing so?

The war analogy seems designed to take the power to allocate resources and assume risk out of the client's hands.  Dan?  (And everyone should know, Dan is my friend and I love the debates that we have on topics like this.)