Displays of dominance are part of the natural order. Just turn on NatGeo or Animal Planet on a random weeknight for proof. In fact, there is nary a species where the cycle of life doesn’t include territorial disputes that are resolved by force — or its threatened use. Whether it be the old lion cast from the pride by a younger challenger, or two moose banging antlers in some Canadian’s driveway, might makes right in the natural world. Especially when it comes to competitive pursuits such as breeding, leadership, or just getting the best piece of meat from a freshly killed carcass. What is true in the animal kingdom finds its parallel in the human sphere as well. In humans, this manifests chiefly in sports and other physical pursuits. But even adversarial proceedings of a more intellectual bent also include jockeying for dominance.
The importance of projecting strength is one that is conveyed to litigators early in their careers. Young litigators are taught the importance of leading briefs and oral presentations with their strongest arguments, while being prepared to deflect the strongest arguments of their opponents. Those at big firms learn to draw strength — and project it — based on the reputation of the firms they are associated with, just as litigators at “elite” boutiques do. High-priced litigators draw succor from their ability to charge high rates, while contingency lawyers proceed with confidence in their ability to assess risk in the name of securing outsized benefits from their willingness to forego short-term billable hours. In short, litigators inherently understand the need to project strength to their opponents — and spend much of their time thinking of ways to do so as effectively as possible.
This is true at every stage of litigation, including when taking the decision whether to initiate a case in the first place. There are times when a client wants to express disapproval of the actions of a rival, but wants to do so in a matter that won’t escalate into an active dispute. Other times, litigators are asked to send “a stronger message,” which in the IP space typically takes the form of a cease-and-desist letter identifying the allegedly infringing conduct and demanding that it stop — with the infringer making some recompense to the IP owner for the past infringement, of course. An even stronger display of dominance is when one side files a complaint, with or without notice to the other side in advance. No matter what course of action is undertaken, clients have two main expectations from their chosen litigation counsel: that the appropriate steps to achieve the client’s objectives will be undertaken at the appropriate times and that the client’s positions will always be communicated from a position of strength. Put another way, no client wants their litigation counsel to project weakness in any respect.
Since even bare-knuckle litigation remains more civilized than actual violence, litigators are constantly thinking of ways to project strength on behalf of their client — to both the adversaries and the adjudicators of their disputes. The arsenal of tools available to do so, however, is pretty limited at the outset of a dispute. At the same time, that is precisely when an effective projection of strength can result in a favorable result that helps both parties avoid the cost and uncertainty of active litigation. It is no surprise that sophisticated litigators and their clients try their hardest to see if a dispute can be resolved on reasonable terms at an early stage, all the while understanding that such a result is often impossible — particularly where one side of the dispute is incapable of, or unwilling to, accurately assess the strength of their legal position. But since almost all cases ultimately settle, it still behooves parties to give early settlement discussions their best efforts, if only to avoid wasting time and resources of both the parties and the judicial system.
As a recent article argues, one of the main roadblocks to early settlement is an information imbalance between the parties. In fact, America’s system of liberal discovery is predicated on helping litigants bridge that information gap before an actual trial or summary adjudication of the dispute takes place. But as the authors argue, it could also be helpful if courts “create procedures facilitating signaling,” as part of encouraging parties to take meaningful steps toward settlement — before expensive discovery takes place. Likewise, the authors suggest that the most effective “litigation signals” — those based on assuming a level of risk depending on the case outcome — are rarely used in litigation practice, because of “antigambling norms, and restrictive ethics rules.” That said, there is still the hope that as lawyers get better at both sending and interpreting strength signaling in litigation, discovery would become less necessary as a means of rectifying information imbalances. For now, however, “parties do not fully realize the benefits of litigation signals,” at least partly because of the entrenched nature of many litigators to position their cases to get to discovery, rather than looking for alternatives. In short, the system is set up to discourage the precise types of strength signaling that could actually result in quicker resolution of disputes.
Ultimately, litigation signaling is something that nearly every litigator does, but perhaps without thinking about how best to do so. Part of the constraint on litigators is a natural unwillingness to try new approaches, or at least experiment with tweaks on existing ones. But, as on the savannah, signals that are both creative and unimpeachable in terms of signaling strength are the ones most likely to result in success. Perhaps with more research into this under-investigated, yet vital, area of practice it will become clearer to all where the opportunities for innovation in communicating effective signals of strength early in cases truly lie. Because as important as it is to always signal strength, clients also depend on their counsel to do so wisely.
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.
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