Litigating? It’s Not About “Right” and “Wrong,” It’s About Risk

If you’re an employee or an employer involved in a lawsuit, you may feel strongly that you are “right” and the other side is “wrong.”  I think this is a counterproductive way of looking at a legal dispute.

If you are enmeshed in a legal dispute, you are involved in a case.  Typically, a case consists of many actions by many persons.  Some of those actions are good for your case, some of them are bad for your case.  Some of the actions are disputed between the parties, and a third party who doesn’t know either of you must decide what actually occurred.

Cases are often complicated, with a large volume of actions and documentation to review, and there are natural, logistical concerns that go with that.  How can a reviewer have time to review all of the information, much less thoroughly understand and remember all of it?  How do you know that reviewer won’t focus too much on the bad parts/actions of a case, and won’t ignore the good parts?  You don’t.

Given all these variables, and others, there is risk involved with any case.  There is risk you will lose your case, no matter how strongly you feel you are “right.”  I only represent employee-plaintiffs who I believe should win their cases (that is, for whom I believe there are more good variables than bad), but I nonetheless frequently talk about their case’s weaknesses and risk factors, just as I talk about their strengths.  There is risk involved, and good and bad factors, for every party in every legal dispute.

If you find yourself constantly repeating words like “principle” and “vindication,” or “right” and “wrong,” then you’ll have a ways to go before your case is resolved, and perhaps an eternity before you are satisfied.

The persons involved with your legal dispute- you, your witnesses, your opponents, your investigators, your legal decision-makers, etc.- cannot be simplified into generalizations like “good” or “evil” (with apologies to George W. Bush).  They are people.  Every person, by nature, is complicated, does a bunch of stuff, and does several things that are moral, and several things that are immoral.  Several things that are smart, several that are not.  Several things that are lawful, several things that are not.  (Yes, all of us).

Of note, people tend to readily admit their good actions and to gloss over the bad.  People want to look good.  We tend to avoid self-reflection when it comes to our bad conduct.  (For example, think of a time you got really drunk- would you readily want to go over everything you did, the things you remember, and those you don’t- with a roomful of people?  A roomful of lawyer-people?).

When a person’s allegedly bad conduct is put under the microscope, that microscope is usually handled by someone else, and the natural instinct of the person being investigated is to be defensive.  “I was right, dammit!”  Never mind those particular actions, details, documents and witnesses that contain evidence to the contrary. You may not care to think of the risks.  But they remain there.

I personally believe that self-reflection in areas of risk- putting our own microscope on our own conduct (or the conduct of those close to us or of our company) – presents much more opportunity for growth than does chasing “vindication.”  If we truly examine our own potential weaknesses, and our own potential wrongdoing, I think we will be better off for making this examination, whatever our genuine conclusions.  But if after examining your own legal case you haven’t found anything “wrong” with some of your own actions, and haven’t identified any legal risks, then you haven’t truly been open to examining the truth of anything.

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Filed under Philosophy - Employee Rights

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