Put simply, Litigation Hijack occurs when some one or some business is forced into litigation by another person or persons. The victim of litigation hijack does not litigate in a court or tribunal by choice, but does so because he/she/it has to in order to avoid the threat of a prejudical court order made against his or its interests. It is a type of force majeur.
Litigation Hijack can be perpetrated in a number of ways, and it is important to know the difference between the types of litigation hijack that can occur.
Here are some Litigation Hijacker Profiles and Hijack Scenarios –
The bully is someone or some corporation that has plenty of money and likes to use the courts as a weapon to get what he wants. If you stand up to a bully or stand in the way of what he wants, he will retaliate by suing you. The bully understands that litigation can be used as a weapon to get his way if the person standing up to him or standing in his way lacks the financial means and/or personal fortitude to wage war in that forum. Under the Australian legal system the winner takes all. The losing party loses the fight, has to meet his own legal costs in full and is also (usually) ordered to pay the winner’s legal costs. Unless there is an equal playing field (i.e. ability to fund the litigation, retain a legal team of equal ability to that of the hijacker and ability to pay the winner’s costs if you lose without being ruined) the victim of litigation hijack will feel under enormous pressure to cave in the hijacker’s demands, or make an unfavourable deal, to avoid the risks of litigation.
This hijacker believes he or she has been wronged by you and wants to use the courts to teach you a lesson and exact compensation to assauge his hurt feelings or appease his anger. He is not open to considering alternatives to litigation to resolve the dispute. He is singleminded and resolute in his determination to teach you the lesson he believes you deserve. You cannot reason with him. Taking you to court is the only thing that will satisfy his sense of “getting justice”.
This Hijacker is convinced that he or she must sue you as a matter of principle. It is not about the money. Only a court verdict will satisfy the principle at stake in the dispute. This hijacker, if he loses, is very likely to lodge an appeal. He is convinced he is right and that justice will ultimately be done (in his favour).
The ignorant hijacker is often the victim of his or her own legal representation. Regrettably, still too many lawyers are not well versed in or skilled in the art of early negotiation and non-litigation ways, strategies and methods to resolve disputes. They may pay lip service to “ADR” (alternative dispute resolution), but they make their bread and butter by being hard and tough litigators and they take pride in their ability to use court process to win cases for their clients. Another win, another feather in their cap to boast about. The ignorant hijacker is led by the nose and simply lets his lawyer take control and “run the case” as he pleases. This can work well for clients with deep pockets, but can end up being very painful for those with shallow pockets.
How and Why do we become the victim of Litigation Hijack?
The quick and easy answer – We fail to take steps and implement measures to protect ourselves against it. We stay ignorant of what we could do to bullet proof ourselves against the threat until the threat materialises and then we become the next victim. We are the proverbial accident waiting to happen. The threat can suddenly come out of left field and we are totally unprepared for it. We become another victim of litigation hijack.
You may have heard it said on occasions that what threatens us most is what we don’t know we don’t know. Awareness leads to clarity and clarity allows us to take preventative steps to protect our interests. If you have the clarity, knowledge and understanding of the threat and risk but still do not take the preventative actions that could bullet proof you agains tthe threat, then I guess it means you either like to live dangerously or you are a fool and deserve what you get.
Experienced marketers like to say “prevention doesn’t sell”. They know too well that too many people don’t even start to think about prevention and risk management until the s… hits the fan and they are in pain. But by then it is too late to avoid the threat. The threat has arrived; the risk has materialised. So what do they do? They say s… I need a good lawyer to rescue me.
This is manna from heaven for the trained litigation lawyer. This is the client they love, especially if that client has deep enough pockets to afford litigation. The moment they enter the lawyer’s domain the billing clock starts ticking and in some cases it keeps ticking for a long time and every month the next bill arrives and there is amother demand to deposit further funds into the lawyer’s trust account to cover ongoing work.
These clients are like sheep going to slaughter. They are like the deer caught in the hunter’s spotlight. They are between a rock and a hard place and no where to escape to unless they choose to capitulate early to the hijacker’s demands.
The first experience of the law, of the courts, of the lawyers and of the whole litigation experience is often bewildering and stressful. Most are totally out of their depth, out of their comfort zone and experience and so totally at the whim and mercy of the lawyer who represents them.
Some lawyers are great, others mediocre and some awful. Unless you are going to see a lawyer on a solid recommendation from a trusted source, you are playing the roulette wheel. Fall into the wrong hands and your life can suddenly become topsy turvy and a nightmare with no light at the end of the tunnel.
This is what litigation can mean. It can become a sort of torture chamber. You feel tortured because you have lost control over your life and you are now in the hands of others who my end up conducting your litigation in the worst possible way. Once you are stuck in the vortex of litigation there is no going back. You cross the line of no return and have to keep marching forward for better or for worse.
So, how is all this avoidable? How can be protect ourselves and our businesses from this threat? How can be avoid being the next victim of litigation hijack?
I am glad you asked.
The solution will be in my next blog post. Don’t miss it!
Christopher Whitelaw
Sydney Mediator and Principal of the Commercial Disputes Management Centre
Call 1300 305 372
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