We are litigators. We are also trial lawyers. The two are not the same. Most firms have "litigators" who appear to be trial lawyers, but in the end most of the attorneys don't try cases. They litigate...which is the process of filing motions and making arguments, filing and responding to discovery, and all of the other aspects of taking a legal case through the process leading up to trial. We like nothing better, if the case is destined for trial, than to try a case against such a firm. Sure, they have lawyers that try cases, but the odds of getting a truly seasoned technology law trial attorney are slim. That is why you see so many settlements on the courthouse steps right before a trial begins. These are settlements that could have occurred long ago, even at the beginning of the case.
Sometimes the settlement is because the lawyers needed the time, at your expense, to figure the case out. Other times it is a fear of picking a jury and actually trying a case that motivates the firm to recommend settlement to a client. Lawyers know that senior partners often discourage settlement until the file is "mature" for settlement. Many lawyers take this to mean exactly what it often means: litigate it through discovery and motions and once appropriate revenue has been generated then look at settlement options.
If you are fortunate enough to actually have a trial lawyer representing you, then the issue becomes one of habit. Litigation lawyers are trained on the process of moving a case through the court process, and trial lawyers have highly developed skills in the art of trying a case to a jury. Note that neither has necessarily developed the skill of finding a win/win solution for the parties early on in the litigation process. Couple that void with what is often a superficial knowledge of the business and technology of the web and you begin to understand why many cases go on far too long and are settled on terms that could have been achieved without huge lawyer fees.
That is why in today's world, the best lawyers are often the few trial lawyers, seasoned at taking cases to jury trials and winning, with a strong business and technology knowledge base, who can take a complex set of facts, analyze those facts in the context of existing law, and implement a "push strategy"...pushing the dispute towards a win/win settlement. This isn't appropriate for every case; just most. And this approach isn't going to work in every case. Just most.
Clients have a tendency to think their case is one of the unique ones that will have to see the light of a courtroom and the eyes of a jury to prevail. This is rarely true. But the other side needs to think you are ready to go the distance, and that a trial and adverse jury decision is a real possibility. The lawyer on the other side needs to feel that he/she is at a knowledge and expertise disadvantage. After all, no one, particularly a lawyer, likes to be embarrassed.
Remember, it's about solutions! Don't let the time, effort and expense of litigation get in the way of growing your business. Every hour you spend on litigation matters is an hour you cannot be using constructively to develop, sell and grow your business. Every hour invested in legal issues is an hour away from driving your business towards success. When I was the CEO of an e-commerce company, I hated legal disputes and issues, and tried my best to stay out of them with pretty good success. Even for me it was a distraction. Every case will be a distraction for you also.
Keep focused and strive to find solutions to problems. You won't develop new business models, drive your growth, or recruit employees and executives while sitting in depositions. Am I saying that every case should be settled? Absolutely not. Some are destined for trial. The ability to envision the destiny of a case, see how it may play out and what the ultimate result may be, is job ONE for your attorney. Sir Francis Bacon said that "knowledge is power", and whether it is the knowledge of the technology of the Internet, the business of the web, or jury trials, it certainly applies today when selecting a trusted adviser as a lawyer.