The traditional notion of an effective litigator is that of someone capable of conducting brilliant
cross-examinations and delivering flawless arguments, whether written or oral. These skills are,
of course, essential in a service market oriented toward conflict resolution. In fact, they require
extensive preparation for each case, thorough study, and, ultimately, experience. That said,
there are few incentives to develop these performance-based skills during law school, even
though they are the most representative of the traditional lawyer. Therefore, the key factor in
determining how strong a lawyer’s performance will be lies in the hours of preparation.

Returning to the question, a significant portion of effective litigators will have studied the facts of
the case and their legal implications in detail. In a professionally responsible scenario, they
initiate litigation because they have sufficient evidence to support a legal claim that recognizes a
right in favor of their client. However, it´s essential to understand a constant in any legal dispute:
contingency. In other words, every conflict carries a probability of loss (present and/or future),
even with the best litigator on your side. This factor is unavoidable and can be explained by
three main reasons.

First, some material facts may undermine the case’s position, not to mention the possibility that
evidence production might fail—such as when a witness hesitates or gets confused during
cross-examination. In such instances, the favorable outlook can collapse entirely. Second, it is
crucial to consider the opportunity cost of pursuing an adversarial process, whether it’s a trial or
arbitration. While rejecting a partial payment of the claimed obligation might lead to a greater
payout in the end, one must also account for the time value of money—what a sum is worth
today won’t be the same by the time the case is resolved.

Lastly, something litigators often fail to consider is the cost associated with a legal claim that can
go beyond financial loss—potentially harming the client’s image or disrupting business
synergies that add value to their operations. Naturally, specific recommendations will depend on
the particular circumstances of each case. However, the core reflection is that more is at stake
than just having evidence and an applicable legal provision. It’s important not to fall into
confirmation bias when an opportunity for out-of-court negotiation arises, because contingency
is always present—even when the case theory seems solid. As a result, these factors should be
carefully weighed to determine whether an out-of-court settlement may be the wiser option.
Depending on the case, that alternative may provide a more efficient and satisfactory outcome
in resolving the dispute.