Heck of a title for a post about litigation, isn’t it? Bear with me for a few paragraphs and my point will be clear. I promise.
Before I go further, ask yourself why you don’t outsource problem solving for your own problems. Have you ever thought about going up to a random stranger and asking her to solve a dispute you are having with another person? Would you feel better about crowd-sourcing the solution, asking, say, 12 people to come to a consensus about how to solve your personal dispute?
Think about these questions from the standpoint of a General Counsel. Would it be a good career move to suggest to your CEO that you get a resolution to a business dispute by going to a random street corner and asking a passerby to solve your corporate business problem? Would it be a better career move to crowd-source the solution to 12 random strangers? I once asked a room full of General Counsel how many would want to make either proposal to their CEO. Not surprisingly, not a single hand appeared.
At this point, most are likely to agree that the random stranger and crowd-sourcing solutions are not wise approaches to dispute resolution. Yet that is exactly how many business disputes are solved. Except the random stranger wears a black robe is referred to as “Your Honor,” and the crowd is called a jury. Every B2B lawsuit represents a decision to outsource the solution to a business problem.
I have been a litigator for 37 years. I tried my first case two days after being admitted to the bar, and, to this day, not much rivals the feeling of cross-examining a witness or making a closing argument to a jury. With that, I feel comfortable suggesting that the outsourcing of solutioning for business disputes is a business failure, the abandonment of the hard work of finding a suitable solution because it is easier to “give it to the lawyers.” Lawyers need to learn how to say “no, it’s your problem, not mine.”
In The One Minute Manager Meets the Monkey, Kenneth Blanchard and William Oncken describe the standard business practice of taking the monkey off of my back and putting it on yours. “Hey, Mary, can you help me with this problem?” is the request to let me take the monkey off my back. “Sure, Bob, happy to help” is the agreement to take the monkey. The transfer of the monkey is accomplished.
And so, it happens in most corporations. Bob is trying to resolve a dispute with a difficult customer and asks Mary, the General Counsel, to take the monkey off his back. The dispute is now Mary’s to deal with. Bob moves on to other things. And he is in the catbird seat to be critical if the resolution is not as good as he believes should occur.
The same is true when a lawsuit is filed — “well, it’s a lawsuit so I have to send it to Legal.” Knowing that “sending it to Legal” is always an option makes reaching an agreement with the other party less urgent. You can always just say “they were unreasonable, so it ended up in litigation.” That excuse, it seems, has become acceptable. It is the veneer used to disguise the use of outsourcing and crowd-sourcing as the means to resolve a dispute. The unacceptable, when disguised, is suddenly acceptable.
In the abstract, people know the waste and futility of litigation. Lots (and lots) of legal fees. E-discovery has become a license to print money, and disputes about process frequently overwhelm the true dispute between the parties. Litigation consumes an important and limited resource—executive time. Lawyers don’t know what happened. We have to learn by talking to the people who were involved—business people. When business people are helping the lawyers, they are not doing their actual jobs.
The real world always intervenes. Litigation takes time, sometimes years. People get promoted or leave the company. Priorities change. Suddenly the business dispute is now getting in the way, but the sunk costs limit resolution opportunities. And the lawyer who accepted the monkey feels pressure to achieve an outcome judged to be acceptable by someone who frequently has no real insight into the original dispute.
The formulae for this view of litigation are simple. Disputes ≠ litigation. Diputes ≠ litigator. Fast > slow. Resolved > not.
So, back to the title, the famous quote by Prussian General Carl von Clausewitz. That which was obvious to von Clausewitz is just as obvious with respect to B2B litigation. But, let’s face it, “B2B Litigation is the Continuation of Business by Other Means” doesn’t have the same power as the title of a blog post. But this take-off is just as true as von Clausewitz’ original utterance.
If litigation is just a continuation of business by other means, it is other means that are slower, more expensive and less certain that the alternative of early resolution. Particularly in the face is growing demand for already limited resources, modern General Counsel are going to have to create an institutional expectation that business monkeys will not be accepted. Business people need to resolve disputes in which they are involved. A dispute is not any different than any other business issue where negotiations and compromise are the order of the day.
Forcing business people to deal with their own monkeys is not the same as throwing them into the deep end without a lifeguard. Richard and Daniel Susskind, in their book, The Future of Professions, write about the transition of lawyers from “sage on the stage” to “guide on the side.” Acting as an advisor, a counselor, is a role where lawyers can add great value. It is a role many General Counsel play on a wide array of issues, some legal and some not. But being a counselor is far removed from being a litigator.
Here’s my prediction for a company that determines that “the business” is responsible for cleaning up its own messes and lawyers adapt to the counselor role. There will be fewer messes. Quality will improve. People will do things right the first time. Contracts (and thus performance expectations) will become clearer and simpler—people will insist on clarity and simplicity so they know what is expected of their operation. All positive things.
This is the biggest lesson from 37 years in the trenches. Please, put me out of business.