To sue or not to sue: that is NOT the question.

March 9, 2017
Brandon S. Harter

I often hear at the outset of a case that one or both parties want to “stand on principle.” When it is my client who wants to do so, I am frequently asked whether we have a “good chance of winning” and, if so, they say they want to proceed. Sometimes they want to do so despite my warnings about the potential cost. Rather than merely deciding whether to sue based upon principle, in my opinion we should stop so we do not lose the forest for this particular, thorny and annoying tree.

In some cases, the fight is inevitable. The issue is too big, the stakes are the survival of a company, or parties just need someone (i.e. the court) to separate them. That said, there are often alternatives to a lawsuit. Rather than standing on “principle,” I encourage my clients to ask themselves:

  • What exactly do I want to accomplish? Can I get that from the court?
  • What do I think the other side wants to accomplish? Are these things I am willing to give up?
  • Should I fight here? Or learn from the situation and put myself in a better position next time?
  • Am I better off simply using the same resources to beat them in the marketplace?

A dispute that has recently been top-of-mind on Reddit and YouTube that highlights the need for this type of approach is Hosseinzadeh v. Klein (S.D.N.Y. Case No. 1:16-cv-03081). This dispute arises from one YouTuber’s commentary video that used the entirety of another YouTuber’s work, albeit broken up with significantly longer clips of the commentators’ own video and discussions. Through the parties’ YouTube channels, they’ve provided an inside look at the process as they endure it and the toll of litigating based upon principle. At the outset of the litigation, the defendants acknowledge the enormity of the proceedings (including the costs) but are dismissive of settlement offers as they want to defend the principle of what they believe is “so obviously fair use.” Fast forward a year later and it is clear that much of the shine of defending this principle has worn off with the defendants describing the process as “miserable” and a “nightmare.”

Given the significance of the legal limits of Fair Use for creators of YouTube reaction videos, this may well be a case where the fight is worthwhile because the survival of the business model is at stake. There is, however, something to be said for living to fight another day on ground more suitable for your side. Using the above case as an example, one option may have been working towards a settlement of this case and in the next video, using a smaller percentage of the original work.

Before launching into years of expensive litigation, and even during the litigation, we should pause occasionally to take stock of the forest. As I help guide my clients through a conflict, I provide an overview of the procedure and attempt to identify the potential outcomes and the “crossroads” or decision-points in the litigation process. Significant events in a litigation matter that require careful evaluation include making or responding to a demand, settlement negotiations, filing of a complaint and/or filing an appeal.

When you have a personal or business dispute that you cannot resolve, take the time to seek out counsel to determine your options. After all, attorneys are not just hired guns when it is time to sue; we are first and foremost counselors that help our clients weigh all the options.

Brandon Harter is an attorney and technology guru at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from William & Mary Law School and advises clients on issues of Business LawCivil Litigation & Dispute ResolutionMunicipal Law, and Information Technology & Internet Law.