IP Litigation: What Is It Good For?

In contrast, litigation really is good for absolutely nothing, in the view of most executives who must pay the lawyers. Certainly, no one who “does” deals, or counsels businesses, likes to be hauled into court. Everything involved with litigation is expensive, from the attorneys who must be on call for hours on end awaiting trials and hearings, to the all-consuming preparation involved before each appearance. Moreover, litigation is tremendously disruptive, because it changes a firm's focus. Instead of emphasizing the tasks of getting and keeping new business, litigation diverts attention to second-guessing what has already occurred and planning to avoid liability.

Even worse, it changes how a firm interacts with its potential customers ' each one is viewed not as a profit opportunity, but as a potential plaintiff. Once a firm is in “litigation mode,” the traditional “person-to-person” interaction that created and built a sales relationship is banished and forgotten. Instead, all interaction takes place between attorneys, reducing, if not eliminating, the chances that two reasonable businesspersons could find a rational, “least-cost” settlement to their dispute. Practical solutions that two persons “in the business” might spot immediately may never even be on the table when all talks are conducted by counsel, who may know all the relevant law, but little about the actual business.