Litigation: a marathon or a sprint

Litigation: a marathon or a sprint


Author: Kath Livingston

Our own Kath Livingston who joined over 36,000 others, pounding the streets in the London marathon on Sunday, ponders whether litigation is a marathon or a sprint.

The answer: it often depends

A quick sprint to the line may be possible, if the circumstances are right. If the case is strong - either the claimant has no real prospect of succeeding or the defendant has no real prospect of defending, summary judgment may be an option.

A speedy application for an interim injunction can position you for a swift settlement. Short of that, an aggressive early strategy may pressurise an opponent into settling. And where both parties are committed to seeking a swift resolution, agreement can be reached to commit to ADR which can circumvent the need for protracted proceedings - mediation or expert determination can lead to a speedy resolution enabling businesses to get back to the day job.

But where parties are entrenched, litigation mirrors a marathon - a gruelling 26.2 mile race with the finish line some considerable distance away. And you need the legs for it - the case and the evidence to prove it.

So, how to prepare?

It's folly to enter a marathon without an understanding of what is involved, commitment to the long term goal and a disciplined approach. The same is true of complex, hard fought litigation.

The need for that discipline, and meticulous preparation, is ever more apparent in this new Jackson era of litigation. Just like training runs, deadlines cannot now be missed. The Courts have been clear that from now on there will be no second chances. No relief from sanctions. And so you need a clear plan and a team committed to ensuring that every single deadline is diarised and met.

You need to understand the course and the milestones along the way. Like a marathon, litigation is a series of stages and you have to break it down - statements of case, documentary evidence, witness evidence, expert evidence, interim applications and trial. Some of these stages may be uphill stages for your case, where you need to dig in, endure some pain and focus on the bigger picture; some may be downhill, where you can pick up the pace and make some ground on your opponent.

And there's the inevitable point when the doubts creep in. The costs may be escalating, you may have suffered a loss at an interim hearing. The fear of what's ahead - the trial, the costs, fear of an adverse ruling and adverse costs may make you want to stop.

Marathon runners rarely listen to that little voice that tells them they could stop - easily - anytime. They ignore it; drown it out. The need to finish is overwhelming. And perhaps this is where litigation differs from a marathon - in litigation, it may be wise to take stock. To reassess, to take advice, to consider settlement. Unlike a marathon, a good settlement at mile 18 can be an overwhelming victory, not an epic fail.

Often though, it's about recognising that doubts as a case progresses are inevitable. Like running a marathon, you litigate with your head. With a clear strategy and a focus on your optimum outcome. You accept that you may encounter some hard going, but you focus on the big picture and on holding your nerve. For that you need a good team around you, and sound advice. With confidence that the legal advice and assessment of merits remains sound, you can dig in. Mind over matter.

Choices and positioning

Mo Farah spoke of making the right choices. The same is true in litigation. At its heart, a case is built on its merits which in turn depends on law and evidence. However, you make important choices as you go along that can enhance your position and the likelihood of an optimum outcome - from how your present the case in court documents to how you correspond, how you negotiate and what positioning offers you make.

Go hard or go home.

Whether you are aiming for a sprint finish or committed to a marathon, this oft quoted runner's maxim has some resonance in litigation - assess, prepare, commit, re-assess and pursue your optimum result with confidence.

Congratulations to all who ran the London Marathon on Sunday! We salute you!

About the Author

contact photo

Kath Livingston


03700 86 5756

Kath heads up our commercial disputes team in Manchester and our national reputation management & defamation team. She is an experienced litigator, having handled a wide range of complex and high value commercial and business disputes, successfully progressing and defending claims through High Court proceedings, arbitration and all forms of alternative dispute resolution.

Share this page