Not Every Battle Is Worth Fighting

One of the most important things a lawyer can say to you is: "Don't fight this one."

Not because you are wrong. You may well be right. But truth in law is a far more complicated category than most people think, and even if you are right, it doesn't follow that pursuing it will pay off.

¶ Truth is subjective until someone objectifies it

Most clients arrive convinced that they are right, and from their own point of view they usually are. The trouble is that the other side arrives with exactly the same conviction.

I don't mean that cynically. That is simply how the legal system works.

Law doesn't deal with "truth" the way we understand it in everyday life. It deals with what can be proved: what is in the documents, what witnesses confirm and what follows from other evidence. And there is often a gulf between what you know and what you can prove in court.

In law, truth is objectified only by a judgment. But a judge is only human. They read the file, hear the witnesses, weigh the evidence and decide on the facts they establish from the evidence presented (Section 153(1) of the Czech Code of Civil Procedure). Whatever cannot be proved is, for the court, as if it never happened.

There is nothing to be done about that. Law is a pragmatic tool for resolving conflicts, and it cannot search for absolute truth.

¶ The economics of a dispute

A client comes in. A debtor owes him three hundred thousand crowns (roughly EUR 12,000). The contract is clear, the invoice overdue, the reminders sent. A legally clean case.

I ask: "How much are you willing to invest to get that money back?"

Many clients have never thought about that question. They assume the law works automatically: you file a claim, the court decides and the money arrives. It isn't that simple.

You pay the court fee and your legal representation. You spend time at hearings instead of at work. You may need an expert report. If the other side loses and disagrees, there is an appeal, and if the judgment alone isn't enough, enforcement. And then there is the real risk that the debtor has nothing to pay with, and you end up owning a final judgment that won't fix your roof.

True, if you win, the court will award you your costs of proceedings (Section 142(1) of the Code of Civil Procedure). In a claim for performance, such as payment, however, it will usually do so only if you sent the debtor a demand for performance at least seven days before filing (Section 142a). Cost recovery doesn't cover your time and need not match the fee you actually pay your lawyer. If you lose, you pay the other side's costs as well. And above all, you have to recover those costs from the debtor just like the debt itself, so if the debtor has nothing to pay with, you get nothing back.

Sometimes the answer is clear: yes, fight it. The amount is high, the evidence strong and the other side solvent. At other times, and I say this quite openly, the answer is no. Settle for fifty percent and move on, or let it go entirely. What your lawyer costs you and how much the court gives back is covered in detail in Attorney's fees in court. And don't forget that for some claims the limitation period may expire in the meantime, which turns the calculation upside down.

¶ Battlefields worth abandoning

In some disputes the best strategy is not to fight. It then often pays to consider mediation or another forum instead of ordinary court proceedings.

Typically when the other side is financially stronger and intends to wear you down procedurally. When your evidence is weaker than you think. Or when the relationship with the other side matters more than the subject of the dispute, for instance with a business partner you will still need to work with afterwards.

And also when victory is so distant and expensive that it makes no economic sense even with a one-hundred-percent chance of success. Such a chance doesn't exist in law anyway.

Abandoning the battlefield is a strategic decision. As in chess, you sometimes sacrifice a piece to gain position.

¶ Why your lawyer won't tell you this

Let me put it bluntly: most lawyers have no economic incentive to talk you out of a lawsuit. Every claim means work, every hearing an invoice and every appeal more billable hours.

I'm not saying lawyers are dishonest. But the system is set up so that resolving a dispute earns more than preventing one. If a lawyer doesn't acknowledge this conflict of interest, they easily start saying "yes, let's file" by reflex, because that is what the client wants to hear and because it generates work.

We do it differently. When you come to us with a dispute, the first thing you will hear from us is: "Let's see whether this is worth fighting."

¶ Law as a pragmatic system

Law and justice are not the same thing. Law is a set of rules by which society resolves conflicts. Sometimes those rules lead to a just outcome, sometimes they don't. And almost always to an outcome that is more expensive and slower than either side would like.

Before you launch into a dispute, try to answer three questions:

How much will the dispute cost me, even if I win? What is the realistic chance that I can prove what I claim? And will winning actually get me what I want?

If the answers worry you, it is time to talk to someone who will tell you the truth, even if you don't want to hear it.

¶ In closing

The lawyer you hire is not there to fight at any cost. Their job is to help you decide which battles are worth it and which are not.

Sometimes the best legal advice is the kind you don't pay a single extra crown for: "Let it go." If you decide to fight anyway, take a look at what you can and must ask the court for in a civil lawsuit. Procedural hygiene often decides more than the merits themselves. Why some battles are won by psychology and negotiation rather than statutes (BATNA, anchoring, sunk costs) is what I explain in Statutes are just the foundation: psychology and tactics in a legal dispute. There is, after all, more than one reason not to fight. Sometimes the other side is irrational and no reasonable move will end the game; I write about that in You don't negotiate with terrorists. At other times you are playing the wrong game, say Monopoly where you think it is chess; see Chess, poker, Monopoly and Snakes and Ladders. And sometimes the problem isn't legal at all and you need a different professional; see The lawyer as illusionist.