The play-off lottery of litigation


On Monday the hopes and dreams I’d harboured for nine long months were destroyed in 15 short, but thoroughly heart-breaking minutes in North West London as Aston Villa secured a return to top-flight football at the expense of my beloved Derby County.

There was an all-too-brief flash of hope as the gutsy Rams, under the stewardship of the super-cool Super Frankie Lampard, threatened for nine minutes that passed in the blink of an eye to overturn the deficit.

But it was not to be and hope, which always dies last, duly obliged.

We watched, with the stiff upper lips and gritted teeth of newly vanquished stoics as a Premier League-bound claret and blue carnival gathered pace in the stands and on the pitch below us. And then we trudged wearily back into the real world, ruefully reliving the missed chances and missed tackles.

This, then, is the lottery of the English Football League Play-Offs. Nine months, 46 games and all the blood, sweat and tears that a lifetime of loyalty to the shirt entails.

For the clubs – businesses, let us not forget – that fail to win the play-off lottery, the financial impact is eye-wateringly high. Conservative numbers in the media this week estimate Villa will be better off to the tune of £170m next season, and that’s before a ball is kicked in anger.

And just as supporters of Derby, Sunderland and Newport County felt the deep heat of disappointment over the bank holiday weekend, it’s easy to imagine the euphorically sweet smell of success the Villa, Charlton and Tranmere fans will have experienced in victory.

A lottery it may be, but when you win it, it’s one of the finest moments imaginable.

This week, as I mulled over the events of the weekend, it occurred to me the EFL’s showpiece season finales are also a pretty good analogy for the lottery that can be litigation.

The American journalist, author and Civil War veteran Ambrose Bierce once described litigation as ‘the machine you go into as a pig and come out of as a sausage’. Cynical? Yes. Accurate? For many people, also yes.

When you end up in litigation the result is often, if not usually, unpredictable and the costs associated with failure can be high. It’s why we at Carlsons make it our business to try to keep our clients away from the courtroom.

Even with solid evidence that one might consider compelling and experts, witnesses and testimony to add layer upon layer of weight and credibility to the argument, there is still no immunity from failure.

Frank Lampard and his team will have done a great deal of homework on the opposition. The Derby players would have been prepared meticulously based on the evidence and intelligence the coaching staff had gathered about Villa. There would have been training ground sessions based on a multitude of scenarios filed under If That Happens, Do This.

In many respects, that’s no different from a legal team going into court. We know a certain amount about the opposition argument, we prepare our own arguments and position, we ensure our clients, experts and witnesses are properly prepared to play their best game when called upon.

But it still has the potential to fall apart for any number of reasons for which you couldn’t possibly have legislated.

It was Prussian military commander Helmuth van Moltke who in 1880 wrote that no plan survives first contact with the enemy. Dwight D. Eisenhower elaborated on that a little when he wrote that he generally found plans to be useless but planning to be indispensable.

And while plans can, and often do, survive contact with the enemy in the courtroom, the plan that wins the day is unlikely to be exactly the same as the one you brought into court on Day 1.

Planning can be undone in hesitant or unconvincing testimony of fact. A judge can suddenly seize on a peripheral issue and afford it greater weight than it merits. In fact, every time anyone stands up to speak in a court of law, an opportunity for a nasty surprise presents itself.

Losing a court case is always likely to be a costly affair, which is why taking a more prudent and commercially sensible view and attempting to settle without recourse to full blown litigation is always preferable.

At Carlsons we are advocates of alternative dispute resolution and will always try to help you to resolve issues in a way that serves your best interests.

Dayana Nikolova