Have you got what it takes to litigate?

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You have consulted a lawyer. You have been told you have claims that can be brought against your employer. You feel a genuine sense of grievance and you want to make the employer pay. But have you got what it takes to litigate?

It is not just about having enough money. Let's assume you do. It's really about whether you can survive the assault course that we call litigation.

There is no doubt that there are qualities that you need to be a successful litigator. The question is do you have them?

Are you meticulous?

The first, and perhaps the most important, is to have good attention to detail. If you give an account of what happened and small details prove to be incorrect, your credibility will be undermined. There is no room for slip-ups.

Can you wait?

Hand in hand with this is patience. In litigation you will be going over the same details time and time again. You need to be prepared to keep returning to the same issues, constantly verifying the facts and revisiting the arguments from all angles.

Will you crumble?

You need to be psychologically robust: for the employer attack may be the best form of defence and the attack will be on you; your performance, your personality or your motives. None of it will be pretty.

Moreover, litigation is always a rollercoaster ride. At times you will feel you have the upper hand; at other times you will feel grossly misunderstood. There will be times when you will wonder whether you should have got into the litigation at all.

Are you dreaming?

Finally, perhaps the most important, you need to have clear objectives and your objectives need to be realistic. Many individuals find their objectives change in the course of litigation. What is crucially important in the aftermath of that adverse bonus decision, redundancy or constructive dismissal often looks entirely different when revisited months later.

All that said, there are individuals who make fantastic litigators. They have courage, self-belief and single-mindedness. They also understand that litigating inherently means living with risk as the outcome of litigation is never guaranteed. However, it is extremely rare that a committed litigator who has a good case and a good lawyer won't achieve a far better outcome than if they did not litigate at all.

Plan ahead

What is the one tip you can take away that will give you the best platform from which to litigate if you need to in the future. It is really quite simple. Keep a day journal of what happens to you at work. You will be amazed in the future what nuggets you will have recorded that will be helpful to you.

If a day journal seems too much like hard work, then at least keep all papers that relate to your contract and pay and anything else that you think might be useful in the future. Particularly accolades and testimonials showing that you are every bit as good as you know you are. They may prove to be your lifeline.

Elaine Aarons is a partner in the employment team at international law firm Withers LLP. She specialises in acting for senior executives.

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