Betting on Litigation

Still, for all the publicity that our litigious society generates, the decision to sue or not, or even to send a so-called lawyer letter, is often agonizing for any business owners or principals.

This dilemma is particularly strong for the smaller firms that compose so much of the e-commerce sector. While the media often perceives lawyers as nothing more than 'ambulance chasers' constantly looking for personal injury lawsuits to stock their personal treasuries, most businesses should prefer to resolve disputes outside the courtroom.

e-Commerce Firms Have More At Stake

Reasons for staying out of court are more compelling yet for business in the technology sector. Sometimes, even when tech firms win in litigation, they lose anyway ' in the marketplace.

For example, active litigation is time-consuming and expensive, with potentially unlimited cost. It can destroy small firms when key personnel must devote time to interrogatories and depositions, much less the time that would be spent attending a trial. A tech firm may find itself effectively shut down by a major lawsuit if its principals must devote most of their time to trial prep, rather than to marketing or research.

Going to court can also affect a tech firm's reputation with potential vendors, customers and business partners. Given a choice between doing a deal with a firm that rarely goes to court and with one that does so regularly, most potential customers ' and some established ones ' would do wisely to choose not to risk becoming the next target.

Also, most court filings are public records, available to anyone who knows how a courthouse works, or with access to online databases that are constantly available at no or little cost. Even though confidentiality of key information generally must be at the core of every technology firm's legal planning, those litigation pleadings have become an excellent source of due diligence when people are investigating a potential partner or competitor. The outcome: Unless counsel for the tech firm takes extra steps (and costs) to require and enforce protective orders from the start of the litigation, key secrets could slip into the public record.

Even worse, most standard confidentiality agreements exclude from the definition of 'confidential information' data that has become public. An unintended disclosure of an item in pre-trial discovery without such precautions, for instance, could destroy its protection not only against the courtroom adversary, but against anyone to whom it had been provided under the cloak of a confidentiality agreement. Because the information has become publicly available, a person seeking to use it would no longer be restricted by the confidentiality form.

Choosing Strategy When Forced to Fight

Yet e-commerce and other technology firms often have no choice but to go to court, even more so than traditional firms. Consider: When key assets are intangible, whether patent rights or critical marketing information, they must be protected against challenges. Erosion of a patent or trademark portfolio by failing to suppress infringers can diminish the value of those assets, and undermine the market position of their owner. e-Commerce firms whose market position depends on preserving competitive advantages through trade secrets, contractual rights or a branding strategy (rather than by such real-world advantages as location or evanescent price margins) cannot allow the value of those assets to be eroded, or lost, because of failure to defend them in court. And the judicial doctrines of waiver and laches penalize firms whose principals and counsel know about infringement on their legal rights, but choose or simply fail to enforce those rights. Courts may simply consider it unfair to claim rights against an established competitor, when the owner of those rights did not do so before the competitor invested time and money to establish a position in the marketplace.

Indeed, establishment of an industry reputation for not tolerating any infringement, however small, and refusing to settle under any circumstances, can be a critical strategy for tech firms. Not only does actual litigation stop the few firms whom they actually sue, but the threat of costly and harsh counterattacks may deter those who would consider developing similar IP rights ' whether or not they would infringe the rights of the established firm. Despite all the reasons businesses prefer to avoid litigation, a firm known to dispense 'an eye for an eye' justice to anyone who challenges its IP assets may soon find that it does not have to make such defenses often, because that reputation alone will scare off challengers.

Remember Balance

However, like any business conducting commerce in our litigious nation (and in other nations in which the company's units, divisions or subsidiaries operate and are litigation targets), e-commerce firms must also balance the potential benefit of litigation, if any, against its costs, because the proverbial 'pot of gold' at the end of the litigation rainbow may be filled with bills for legal fees. What will the firm get if it wins everything that it asks for? Will a courtroom win provide a remedy that is practically effective in the marketplace? For example, a large money judgment against a firm with no assets to pay it may be a moral victory, but that satisfaction won't pay the legal fees it took to get the result, much less recover any business losses. Similarly, an injunction to stop a competitor's infringement may make a good press release for investors and analysts, but what if the underlying technology allows the injunction to be easily and repeatedly avoided? In today's international economy, the cost of hiring engineers and production abroad to find a way around a court ruling may be small. Perhaps a better investment than litigation would have been development of a business model less susceptible to market entry, and which could be defended effectively by legal protection of the intellectual property involved.

Even if an injunction could stop an infringer, courts usually won't enforce it as quickly as key players in most businesses desire. A court will intervene immediately only if it can be convinced that 'irrevocable harm' will occur if it does not act ' and loss of profits usually doesn't count as 'irrevocable harm,' unless the IP rights themselves are at risk. Instead, the firm must resign itself to the cost of repeated defense of its position ' and the risk that it may eventually lose any advantage it has to a competitor with a bigger budget for litigation.

Of course, sometimes, going to court is not a firm's own choice ' it may be sued first by another firm; in that case, it has no choice but to incur the costs and time drain of defense, on the court's schedule, rather than according with its own timing. A firm in such a predicament should consider the availability of recovering defense costs under its insurance policies and any contractual indemnities it may have. Negotiating (before you are sued) for the right to have those costs advanced, during litigation rather than after a win, may be as critical as having the right to get them in the first place.

While this reality leads many litigation-averse entrepreneurs to try to settle disputes quickly so they can avoid the costs and uncertainty of a courtroom battle, such an approach can encourage an opportunistic adversary. Former Chinese Premier Zhou En Lai expressed this sentiment well: 'Diplomacy is a continuation of war by other means.' In other words, some firms do not use litigation (and the threat of it) solely as an extraordinary tool to respond to problems outside the ordinary course of business; instead, for such firms, litigation (and all its costs) is just another business tool to reach a desired result, whether or not a real dispute exists. The best preparation for such a battle often comes not from the classroom or laboratory, but from the casino: The bluffing and dealing with uncertainty that make poker a dynamic game of chance mirror today's style of litigation far better than legal theorists would prefer. Prolonged discussions aimed at avoiding court simply play into the strategy of an opponent who negotiates by lawsuit. Trying to settle with such an adversary will not eliminate threats of more litigation, and, in fact, may result in far worse terms ' and higher legal fees ' than had the business stood firm, refused to negotiate over critical rights and resolved the case on the merits in front of a judge after full discovery and trial. A courtroom victory to stifle the dispute, while expensive in the short run, may be cheaper anyway than the prolonged bleeding of a competitor whose best products are legal briefs.

A Changing Game

In fact, perhaps one of the hardest realities of litigation for results-oriented technology firms to understand may be how much litigation today is completely divorced from the merits of a dispute. Rational entrepreneurs, for instance, may place going to court so low on their menu of business options that they fail to perceive the challenges they face when a firm with a radically different mindset confronts them ' and choose a response strategy that simply leads to further negotiation, costs and eventually failure. Compromising with an opponent that does not believe in compromise will not make the litigation or the threat go away ' it will always return, regardless of the spirit or the terms of the 'settlement.' In politics, this strategy has been reviled as appeasement. In the marketplace, it's just business ' if it works.

The reality that which party is right often doesn't matter in litigation also highlights one of the crucial aspects of the decision to sue or not: the role of legal fees. Often, the cost of paying for a defense will be so great, regardless of who wins, that it's in the parties' best economic interests to settle to avoid those costs, regardless of the terms ' the so-called nuisance-value settlement. Even worse, everyone in the system knows this fact of life ' particularly the overworked judges, mediators and arbitrators who are supposed to help resolve disputes. While entrepreneurs may (and they would do so mistakenly) analyze litigation by studying the facts and law, those working in the system often find it too costly and slow to become bogged down in the details of a case. Instead, the settlement end game is much easier: Compare the costs of carrying a matter to trial against the cost of an earlier settlement. In other words, the specter of potential legal fees often decides a case, rather than its merits. Even though the major U.S. intellectual property (IP) laws allow some fee-shifting, the winner must still front those fees on the hope of success.

This reality has spawned the phenomenon of the patent troll (see, http://en.wikipedia.org/wiki/Patent_troll). These firms' business model involves acquiring patents not to develop them into revenue-generating businesses, but to generate revenue from licensing them to other firms that sell products or services, and that find it cheaper to pay a licensing fee than to litigate over colorable patent rights.

Naturally, this financial approach favors the old established firm against the new upstart one. An innovator with better technology may be beaten into submission or licensing by a lagging firm that has the resources to prosecute or defend its position in the courtroom and lawyers' offices, rather than in the lab or in commerce. In analyzing an opponent's case, counsel for an emerging tech firm must consider not only the strength of its legal arguments, but also its client's bank account. Unfortunately, a smaller and newer firm that wants to stake out its position by defending challenges to its technology, and refusing to settle prematurely, may be foreclosed from that option by the sheer cost of litigation today.

Nickels and Dimes, Turtles and Rabbits

Sometimes, however, the tortoise can beat the hare. Creative lawyering can counter hardball litigation by creating costs and inconvenience out of proportion to any benefit from either. For example, in my experience, a trademark dispute between two firms of vastly different size was settled, after a year of discussions, on the same terms as originally proposed by the smaller firm ' after the smaller firm was able to shift the litigation out of the Patent and Trademark Office in Washington, where the larger firm's counsel was located, to a remote county court in Texas that was the smaller firm's home court. Faced with the cost of hiring local counsel in an unfamiliar and potentially unfriendly jurisdiction, the larger firm had to reconsider its hard-line approach, and accepted the same reasonable settlement it had rejected a year earlier at the start of the case.

Unfortunately, balancing the costs of litigation against its benefits often is not well suited to technology disputes. Definitive IP rights may be critical for future business development such as licensing deals or joint ventures. Third parties will not likely invest in a deal based on technology rights subject to litigation risks, or for which absolute warranties of ownership and freedom from infringement claims cannot be given. Instead, tech firms sometimes might have to 'bite the litigation bullet' and risk litigation's costs to establish the firm's rights to technology. Consider, for example, the widely reported fight over patent rights by the Canadian firm Research in Motion Ltd. (RIM), creator of the ubiquitous Blackberry. RIM could not settle on favorable terms until the courts had established its rights in protracted, costly litigation.

As the RIM case also illustrates, establishing rights to bleeding-edge technology can sometimes be complicated by the technology's novelty and continuing development. Courts may be particularly unsuited to weighing the merits of competing technology claims that few people can understand ' a litigation risk that all tech firms face. Rather than gamble a firm's future on which firm's non-technologist lawyer can better explain its core IP to a lay judge and jury, it may be cheaper to settle, even unfavorably, than to risk a profoundly adverse decision in court that would cost far more in money and in time to try to reverse on appeal.

Certainly, the decisions confronting tech firms and their counsel forced to consider litigation are complex ' perhaps even more so than choices about the underlying technology and business model. Perhaps the best training for this aspect of running a tech firm today was not in the academic labs where technology is developed, but in the late-night card games where bluffing skills are honed. Perhaps it's no coincidence that Bill Gates and Warren Buffett share a love of card games (see, http://unit232.com/Reports/bridgeschool.htm; www.forbes.com/facesinthenews/2005/12/20/gates-buffett-bridge-cx_cn_1220autofacescan02.html). Indeed, if poker teaches business skills such as whether to sue or settle, then the advice of country singer Kenny Rogers may be just as valuable as that of the most expensive trial counsel: 'You got to know when to hold 'em, know when to fold 'em, know when to walk away and know when to run.' (Prime up on some of Rogers' advice at www.lyricsfreak.com/k/kenny+rogers/the+gambler_20077886.html.)

In law, where Napoleon's quip that the best defense may be a good offense perhaps is best demonstrated, it helps to have a good litigator on retainer to increase the odds that your firm will be the one holding, rather than folding. A recent 'Hagar the Horrible' cartoon illustrated this point, by showing the Viking warrior burdened with weapons on a boat-buying trip. When a friend asks why he needs the weapons to go shopping, Hagar replies that he must be prepared to 'negotiate' the price.

So, in deciding whether to sue or not, consider that for many firms, litigation is not the last alternative to solve a problem when all else has failed, but just another form of negotiation. Trial lawyers may be intensely and widely disliked, but ' like it or not ' they might be a firm's best resource to negotiate a good business deal.

Lawyers today seem to be the favorite butt of jokes. Perhaps the only thing businesspeople like less than lawyers is the ordeal of going to court. Certainly, the perception among many is that American lawyers 'sue first, (and) ask questions later' ' to the tune of an average legal bill of $20 million per year for litigation for major U.S. corporations, according to a recent survey (see, http://houston.bizjournals.com/houston/stories/2006/10/09/daily16.html).

Ironically, technology is playing a role in nurturing this inaccurate perception at a time when lawyers more than ever need technical savvy ' especially those involved ever more in advising e-commerce ventures. A simple Google search reveals many Web sites that perpetuate the 'sue-first-question-later' myth (see, eg, www.mediationtools.com/articles/suefirst.html or www.princeton.edu/~innov/may2004/m2004viewpoint.htm). A university scholar has even published a book about lawyer jokes (www.amazon.com/Lowering-Bar-Lawyer-Jokes-Culture/dp/0299213501).

Yet, these stereotypes aside, our judicial system often benefits the winner of a race to the courthouse, with the prize being the winner's choice of venue and procedural advantages. And this reflects on society at large. Culturally, we praise the person who appears ready to fight, rather than to negotiate out of one, by teaching schoolchildren Teddy Roosevelt's famous policy, 'Speak softly and carry a big stick,' among other slogans of aggression.

Still, for all the publicity that our litigious society generates, the decision to sue or not, or even to send a so-called lawyer letter, is often agonizing for any business owners or principals.

This dilemma is particularly strong for the smaller firms that compose so much of the e-commerce sector. While the media often perceives lawyers as nothing more than 'ambulance chasers' constantly looking for personal injury lawsuits to stock their personal treasuries, most businesses should prefer to resolve disputes outside the courtroom.

e-Commerce Firms Have More At Stake

Reasons for staying out of court are more compelling yet for business in the technology sector. Sometimes, even when tech firms win in litigation, they lose anyway ' in the marketplace.

For example, active litigation is time-consuming and expensive, with potentially unlimited cost. It can destroy small firms when key personnel must devote time to interrogatories and depositions, much less the time that would be spent attending a trial. A tech firm may find itself effectively shut down by a major lawsuit if its principals must devote most of their time to trial prep, rather than to marketing or research.

Going to court can also affect a tech firm's reputation with potential vendors, customers and business partners. Given a choice between doing a deal with a firm that rarely goes to court and with one that does so regularly, most potential customers ' and some established ones ' would do wisely to choose not to risk becoming the next target.

Also, most court filings are public records, available to anyone who knows how a courthouse works, or with access to online databases that are constantly available at no or little cost. Even though confidentiality of key information generally must be at the core of every technology firm's legal planning, those litigation pleadings have become an excellent source of due diligence when people are investigating a potential partner or competitor. The outcome: Unless counsel for the tech firm takes extra steps (and costs) to require and enforce protective orders from the start of the litigation, key secrets could slip into the public record.

Even worse, most standard confidentiality agreements exclude from the definition of 'confidential information' data that has become public. An unintended disclosure of an item in pre-trial discovery without such precautions, for instance, could destroy its protection not only against the courtroom adversary, but against anyone to whom it had been provided under the cloak of a confidentiality agreement. Because the information has become publicly available, a person seeking to use it would no longer be restricted by the confidentiality form.

Choosing Strategy When Forced to Fight

Yet e-commerce and other technology firms often have no choice but to go to court, even more so than traditional firms. Consider: When key assets are intangible, whether patent rights or critical marketing information, they must be protected against challenges. Erosion of a patent or trademark portfolio by failing to suppress infringers can diminish the value of those assets, and undermine the market position of their owner. e-Commerce firms whose market position depends on preserving competitive advantages through trade secrets, contractual rights or a branding strategy (rather than by such real-world advantages as location or evanescent price margins) cannot allow the value of those assets to be eroded, or lost, because of failure to defend them in court. And the judicial doctrines of waiver and laches penalize firms whose principals and counsel know about infringement on their legal rights, but choose or simply fail to enforce those rights. Courts may simply consider it unfair to claim rights against an established competitor, when the owner of those rights did not do so before the competitor invested time and money to establish a position in the marketplace.

Indeed, establishment of an industry reputation for not tolerating any infringement, however small, and refusing to settle under any circumstances, can be a critical strategy for tech firms. Not only does actual litigation stop the few firms whom they actually sue, but the threat of costly and harsh counterattacks may deter those who would consider developing similar IP rights ' whether or not they would infringe the rights of the established firm. Despite all the reasons businesses prefer to avoid litigation, a firm known to dispense 'an eye for an eye' justice to anyone who challenges its IP assets may soon find that it does not have to make such defenses often, because that reputation alone will scare off challengers.

Remember Balance

However, like any business conducting commerce in our litigious nation (and in other nations in which the company's units, divisions or subsidiaries operate and are litigation targets), e-commerce firms must also balance the potential benefit of litigation, if any, against its costs, because the proverbial 'pot of gold' at the end of the litigation rainbow may be filled with bills for legal fees. What will the firm get if it wins everything that it asks for? Will a courtroom win provide a remedy that is practically effective in the marketplace? For example, a large money judgment against a firm with no assets to pay it may be a moral victory, but that satisfaction won't pay the legal fees it took to get the result, much less recover any business losses. Similarly, an injunction to stop a competitor's infringement may make a good press release for investors and analysts, but what if the underlying technology allows the injunction to be easily and repeatedly avoided? In today's international economy, the cost of hiring engineers and production abroad to find a way around a court ruling may be small. Perhaps a better investment than litigation would have been development of a business model less susceptible to market entry, and which could be defended effectively by legal protection of the intellectual property involved.

Even if an injunction could stop an infringer, courts usually won't enforce it as quickly as key players in most businesses desire. A court will intervene immediately only if it can be convinced that 'irrevocable harm' will occur if it does not act ' and loss of profits usually doesn't count as 'irrevocable harm,' unless the IP rights themselves are at risk. Instead, the firm must resign itself to the cost of repeated defense of its position ' and the risk that it may eventually lose any advantage it has to a competitor with a bigger budget for litigation.

Of course, sometimes, going to court is not a firm's own choice ' it may be sued first by another firm; in that case, it has no choice but to incur the costs and time drain of defense, on the court's schedule, rather than according with its own timing. A firm in such a predicament should consider the availability of recovering defense costs under its insurance policies and any contractual indemnities it may have. Negotiating (before you are sued) for the right to have those costs advanced, during litigation rather than after a win, may be as critical as having the right to get them in the first place.

While this reality leads many litigation-averse entrepreneurs to try to settle disputes quickly so they can avoid the costs and uncertainty of a courtroom battle, such an approach can encourage an opportunistic adversary. Former Chinese Premier Zhou En Lai expressed this sentiment well: 'Diplomacy is a continuation of war by other means.' In other words, some firms do not use litigation (and the threat of it) solely as an extraordinary tool to respond to problems outside the ordinary course of business; instead, for such firms, litigation (and all its costs) is just another business tool to reach a desired result, whether or not a real dispute exists. The best preparation for such a battle often comes not from the classroom or laboratory, but from the casino: The bluffing and dealing with uncertainty that make poker a dynamic game of chance mirror today's style of litigation far better than legal theorists would prefer. Prolonged discussions aimed at avoiding court simply play into the strategy of an opponent who negotiates by lawsuit. Trying to settle with such an adversary will not eliminate threats of more litigation, and, in fact, may result in far worse terms ' and higher legal fees ' than had the business stood firm, refused to negotiate over critical rights and resolved the case on the merits in front of a judge after full discovery and trial. A courtroom victory to stifle the dispute, while expensive in the short run, may be cheaper anyway than the prolonged bleeding of a competitor whose best products are legal briefs.

A Changing Game

In fact, perhaps one of the hardest realities of litigation for results-oriented technology firms to understand may be how much litigation today is completely divorced from the merits of a dispute. Rational entrepreneurs, for instance, may place going to court so low on their menu of business options that they fail to perceive the challenges they face when a firm with a radically different mindset confronts them ' and choose a response strategy that simply leads to further negotiation, costs and eventually failure. Compromising with an opponent that does not believe in compromise will not make the litigation or the threat go away ' it will always return, regardless of the spirit or the terms of the 'settlement.' In politics, this strategy has been reviled as appeasement. In the marketplace, it's just business ' if it works.

The reality that which party is right often doesn't matter in litigation also highlights one of the crucial aspects of the decision to sue or not: the role of legal fees. Often, the cost of paying for a defense will be so great, regardless of who wins, that it's in the parties' best economic interests to settle to avoid those costs, regardless of the terms ' the so-called nuisance-value settlement. Even worse, everyone in the system knows this fact of life ' particularly the overworked judges, mediators and arbitrators who are supposed to help resolve disputes. While entrepreneurs may (and they would do so mistakenly) analyze litigation by studying the facts and law, those working in the system often find it too costly and slow to become bogged down in the details of a case. Instead, the settlement end game is much easier: Compare the costs of carrying a matter to trial against the cost of an earlier settlement. In other words, the specter of potential legal fees often decides a case, rather than its merits. Even though the major U.S. intellectual property (IP) laws allow some fee-shifting, the winner must still front those fees on the hope of success.

This reality has spawned the phenomenon of the patent troll (see, http://en.wikipedia.org/wiki/Patent_troll). These firms' business model involves acquiring patents not to develop them into revenue-generating businesses, but to generate revenue from licensing them to other firms that sell products or services, and that find it cheaper to pay a licensing fee than to litigate over colorable patent rights.

Naturally, this financial approach favors the old established firm against the new upstart one. An innovator with better technology may be beaten into submission or licensing by a lagging firm that has the resources to prosecute or defend its position in the courtroom and lawyers' offices, rather than in the lab or in commerce. In analyzing an opponent's case, counsel for an emerging tech firm must consider not only the strength of its legal arguments, but also its client's bank account. Unfortunately, a smaller and newer firm that wants to stake out its position by defending challenges to its technology, and refusing to settle prematurely, may be foreclosed from that option by the sheer cost of litigation today.

Nickels and Dimes, Turtles and Rabbits

Sometimes, however, the tortoise can beat the hare. Creative lawyering can counter hardball litigation by creating costs and inconvenience out of proportion to any benefit from either. For example, in my experience, a trademark dispute between two firms of vastly different size was settled, after a year of discussions, on the same terms as originally proposed by the smaller firm ' after the smaller firm was able to shift the litigation out of the Patent and Trademark Office in Washington, where the larger firm's counsel was located, to a remote county court in Texas that was the smaller firm's home court. Faced with the cost of hiring local counsel in an unfamiliar and potentially unfriendly jurisdiction, the larger firm had to reconsider its hard-line approach, and accepted the same reasonable settlement it had rejected a year earlier at the start of the case.

Unfortunately, balancing the costs of litigation against its benefits often is not well suited to technology disputes. Definitive IP rights may be critical for future business development such as licensing deals or joint ventures. Third parties will not likely invest in a deal based on technology rights subject to litigation risks, or for which absolute warranties of ownership and freedom from infringement claims cannot be given. Instead, tech firms sometimes might have to 'bite the litigation bullet' and risk litigation's costs to establish the firm's rights to technology. Consider, for example, the widely reported fight over patent rights by the Canadian firm Research in Motion Ltd. (RIM), creator of the ubiquitous Blackberry. RIM could not settle on favorable terms until the courts had established its rights in protracted, costly litigation.

As the RIM case also illustrates, establishing rights to bleeding-edge technology can sometimes be complicated by the technology's novelty and continuing development. Courts may be particularly unsuited to weighing the merits of competing technology claims that few people can understand ' a litigation risk that all tech firms face. Rather than gamble a firm's future on which firm's non-technologist lawyer can better explain its core IP to a lay judge and jury, it may be cheaper to settle, even unfavorably, than to risk a profoundly adverse decision in court that would cost far more in money and in time to try to reverse on appeal.

Certainly, the decisions confronting tech firms and their counsel forced to consider litigation are complex ' perhaps even more so than choices about the underlying technology and business model. Perhaps the best training for this aspect of running a tech firm today was not in the academic labs where technology is developed, but in the late-night card games where bluffing skills are honed. Perhaps it's no coincidence that Bill Gates and Warren Buffett share a love of card games (see, http://unit232.com/Reports/bridgeschool.htm; www.forbes.com/facesinthenews/2005/12/20/gates-buffett-bridge-cx_cn_1220autofacescan02.html). Indeed, if poker teaches business skills such as whether to sue or settle, then the advice of country singer Kenny Rogers may be just as valuable as that of the most expensive trial counsel: 'You got to know when to hold 'em, know when to fold 'em, know when to walk away and know when to run.' (Prime up on some of Rogers' advice at www.lyricsfreak.com/k/kenny+rogers/the+gambler_20077886.html.)

In law, where Napoleon's quip that the best defense may be a good offense perhaps is best demonstrated, it helps to have a good litigator on retainer to increase the odds that your firm will be the one holding, rather than folding. A recent 'Hagar the Horrible' cartoon illustrated this point, by showing the Viking warrior burdened with weapons on a boat-buying trip. When a friend asks why he needs the weapons to go shopping, Hagar replies that he must be prepared to 'negotiate' the price.

So, in deciding whether to sue or not, consider that for many firms, litigation is not the last alternative to solve a problem when all else has failed, but just another form of negotiation. Trial lawyers may be intensely and widely disliked, but ' like it or not ' they might be a firm's best resource to negotiate a good business deal.