The magic of litigation is really the suspension of belief that anyone other than the lawyers will win in the end. For the start up CEO, the case as defendant or plaintiff begins with sturdy handshakes and resolute commitments to pursue or defend with great vigor. What begins with "you have a strong case here" ends months or years later with "you're going to get your butt kicked".
Forget the thousands, tens of thousands or hundreds of thousands spent to date, the lawyer will explain that "now that I have the full details of the case, which clearly I couldn't have known earlier as I didn't have the full facts, it is clear that you're unlikely to prevail." For the first time CEO or the CEO new to litigation, this can be a uniquely clarifying moment. Is this a true assessment, a cautionary statement or clever way to transfer all the risk of failure at trial unto the CEO?
Sure, it depends on the situation. But, I would argue, it tends to be at least two of the three and frequently all three. The attorney may feel you're likely to get your butt kicked and you should be warned. And, wonderfully, for the attorney if you accept this explanation -- you have all the risk of failure. If the case succeeds, well then, it had to be the attorney brilliant execution at trial. If it fails, you were warned now -- weren't you?
So what do you do? Especially as defendant where you didn't initiate anything? You need to find CEO's who have been through the drill. They will tell you about keeping your own perspective and limiting the legal thrusts and parries that usually have no impact on anything other than the bill at the end of the month. They will tell you to trust your gut and that most of the stuff that seems like crap actually is crap. And, they will tell you, that litigation is as American as apple pie. Pay attention because no matter how this turns out or how much you will seek to avoid it, you'll back to this process again and you don't want to "get your butt kicked".