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A number of years ago, investment newsletters were filled with the latest discovery in investor portfolio analysis. After much study, researchers concluded that investment returns were driven far more by the industry sectors in which assets were invested than they were by the particular stocks that investors bought or sold. Thus, an investor’s internal debate between whether Pfizer or Merck was the better investment carried much less significance than the decision to invest in the pharmaceutical industry rather than in consumer staples. This theory of “top down investing” is equally instructive for attorneys and their clients who are confronted with a newly filed lawsuit or a dispute that seems likely to ripen into litigation. Typically, law firms and clients focus their efforts on identifying and selecting the attorney who is most capable of directing the litigation effort. Most understand that all litigators are not equally talented, and that it is not enough to retain an attorney who holds a valid law license and knows the way to the courthouse. However, choosing a litigator is akin to deciding whether to purchase Pfizer or Merck. All the effort devoted to selecting litigation counsel necessarily assumes that litigation will be — and should be — the dispute resolution mechanism of choice, much as an investor screening different pharmaceutical companies effectively has decided that the pharmaceutical industry is the place to be. Confronted with pending or threatened litigation, law firms and their clients too often address the issue of counsel from this “micro” perspective. By doing so, they necessarily are “buying in” to litigation as the appropriate framework for addressing the dispute. Just as calling a dermatologist limits a patient to the skill set of that specialty, so, too, does an overture to a litigator establish contours for the expertise that will be received. Choosing a litigator who is talented at filing and briefing motions, conducting depositions and discovery, and presenting the case to a judge or jury certainly is important if a case is being litigated. However, sometimes the traits that make one an exceptionally good litigator may alienate adversaries, creating obstacles to settlement. Hard fought litigation often involves strained interactions with opposing counsel, a “take no prisoners” approach to motions and discovery, and a battle whose protocol is defined by state or federal rules of civil procedure. To be sure, vigorous litigation occasionally is the most appropriate (or the only) alternative, in which case an attorney’s litigation skill set should be of paramount concern. However, given the overwhelming number of disputes that settle prior to trial, law firms and clients err when their search for counsel fails to meaningfully consider the desirability of addressing the dispute in a non-litigation arena. Attorneys who have good negotiating skills with the ability to reach out to adversaries often can transform a case from litigation to settlement mode earlier, and with greater success. No client should find itself in protracted litigation by default. “Top down dispute resolution” encourages law firms and their clients to structure a game plan that places the dispute in the appropriate arena. Doing so may impact the expense, disruption and likely outcome of the dispute far more than the choice of whether to select Talented Litigator A or Talented Litigator B. Sometimes, those with good litigation skills also have the “negotiating gene.” If so, fine. If not, it is important for clients and their law firms to consider involving one who does. Otherwise, the client’s choice is limited to one between Merck and Pfizer, when the client really should be investing in a different industry. Robert A. Harris is a partner at Zeldes, Needle & Cooper in Bridgeport, Conn.

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