Black’s litigation stance mirrors that of many employers

The story of Conrad Black's recent conviction has now been told, thoroughly, by way of every news medium in this country. Black, defiant to the end, rode a losing case to what could only be described (assuming his appeal doesn't change things) as a disastrous result.

 

Lord Black was once a powerful corporate mogul, but now faces as much as 35 years in prison (although likely much less) as a result of his misdeeds. His battle against U.S. prosecutors and his own shareholders will, almost certainly, be his financial ruin.

 

 Now, of course, I don't know precisely why or how Conrad Black ended up where he is now. I don't know what instructions he gave to, or was given by, his legal counsel along the way. What I do know that he ended up a convicted felon when, surely, there must have been opportunities along the way to have mitigated the impact a conviction would have on his life. 

 

Black clearly thought he had a winning hand and he was willing to ride that hand to conclusion. In the result, it is apparent that he misjudged the strength of his position. Although Black's case arose in a different context, his handling of his legal situation bears definite parallels to the way many employers react to litigation by former employees. 

 

When sued by former employees, most frequently for what is known as wrongful dismissal, employers routinely overestimate the strength of their legal position. It's that misperception of the legal reality which results in them eventually finding themselves in court rather than having compromised much earlier.

 

How does this end up happening? There are probably numerous reasons.  

 

Employers certainly have an emotional tendency to believe what they want to believe about their justifications for dismissing an employee. This is one of the greatest weaknesses of leaders, whether in business or politics or almost other context - the desire to be right and the resulting, self-fulfilling belief that you are right. 

 

In my experience, few litigants have significantly more than a 50% chance of success once their case gets into court. The way I look at it, 100% of litigants go into court thinking they have a chance of winning. But half of them end up being proven wrong. In the employment context, I estimate the rate of success for employers may be substantially worse than 50% because (in many ways) employment law gives the advantage to the employee.

 

Employers also often get tied up in the principle of the matter. Principles are fine things to have, but slavish adherence to them can leave an employer committed to litigation which could (and, often, should) have been settled somewhere along the way. This is another element of emotional decision making which, ideally, should be left out of the litigation context.

 

I also have to think that many employers simply are not pushed hard enough by their legal advisors to settle when the opportunity presents itself. The result is a high-risk showdown in court by which time a workable compromise between the parties can be difficult (if not impossible) to achieve.

 

I've been told by numerous clients, when faced with the decision of whether to litigate or settle at an opportune moment, that "this is a fight to the death". As I've said to each of them in that situation, the problem with a fight to the death is that it ends (at least figuratively) with someone getting killed. And the percentages say it isn't always going to be the other guy.