Your goal is not to win litigation but avoid it
|Maxims and arrows|
But Mousie, thou art no thy-lane,
In proving foresight may be vain:
The best laid schemes o’ Mice an’ Men,
Gang aft agley.
An’ lea’e us nought but grief an’ pain,
For promis’d joy!
—Robert Burns, To a Mouse, On turning Up in Her Nest with the Plough (1785)
Anglo Saxon lawyers are trained from their first day that the common law flows in a golden stream from the decided case law; that the mystic runes of their craft are therefore the literary by-product of litigation. It is hardly a surprise, therefore, that they should be tempted to regard litigation as the highest expression of their art, a kind of Sinai from which stone tablets are delivered.
But a civil courtroom is a strange place, visited only by those who have demonstrably taken leave of their senses and representatives of the deranged who are happy enough to indulge their delusions at a suitable hourly rate. A courtroom is no better a place to distil the rules of decent human conduct than is a motorway pile-up a place to deduce principles of defensive driving.
Just as a prudent motorist will keep to the speed limit, on the inside lane and at safe braking distance from the car in front, indicating as needed and in plenty of time, cheerily giving way should that be the congenial thing to do — so will a sensible merchant perform her contract with a view not just to compliance with its letter but the maintaining her customer’s good grace and favourable regard should her name come into contemplation — which it will only do when the customer’s mind turns to more business.
You have heard the JC say it often before, and it is true, if trite: the future is an unknown place. This is a good thing: if it were not, there would be no risks to run nor rewards to reap. The fears that plague a merchant’s mind when she enters a bargain may be far removed from the actualities that beset her ultimate enjoyment of it. The fears that plague her advisors will be rooted in the past, that place that place of consoling clarity for those who navigate by rear-view mirror and have not the stomach for the unknown.
(Incidentally, if you did want to be part of a motorway pileup, then steering by reference to what appears in your wing-mirrors is the way to go about it.)
Yet, when their opinions are sought, how easily legal eagles fall into the mindset of remedies.