Winning Litigation: Securing a Home-Court Advantage

During March Madness, the U.S. college basketball tournament, games are played at neutral venues—no team competes on its home court. This decision isn’t surprising. In sports, home-court, home-ice, and home-field advantage is real, backed by extensive research. 

Litigation, like sports, comes with its own version of home-court advantage. Certain factors can tilt the playing field, influencing case outcomes.

This article highlights two important junctures where corporate counsel can position disputes for maximum advantage; pre-dispute, by carefully considering contracts rights, and once a dispute emerges, through informed negotiation as to whether a claim should proceed as an arbitration or litigation. My thanks to MVP litigators Jim Bunting, Junior Sirivar and Carlo di Carlo for their input.

The First Half:  Contracting for Advantage

Before a dispute materializes, decisions are made in contracts that impact the road to the show. Deal documentation offers several opportunities for corporate lawyers to position for future disagreements. These include:

1. Jurisdiction: Where will the dispute be heard?
2. Governing Law: Which legal framework will apply?
3. Dispute Resolution Mechanisms: Should the contract mandate arbitration, mediation, or litigation?

Such opportunities are not to be missed by corporate counsel.

Jim Bunting, founding partner of top litigation firm Tyr LLP, notes “as often as not, in my experience, corporate lawyers do not consider the procedural differences or advantages when approaching these clauses, instead defaulting to boilerplate language.” He adds that, “thought should be given to the nature of potential future disputes and the expected power imbalance, if any, between the parties.”   

Jurisdiction: The Power of Location

Litigating in the right jurisdiction can mean the difference between convenience and costly headaches. Consider the practicalities of a prospective dispute:  Where are the assets? If enforcing a judgment, where will you recover? Where is preferred litigation counsel based? Where are key witnesses and executives located? Where is the defendant based? How long does the average case take to get to final hearing?

Procedural differences between jurisdictions must be weighed. Take for example whether a jurisdiction has “loser-pay” cost consequences. Another question is whether the contemplated jurisdiction has discovery rights that are narrow, reasonable or sweeping. Differences in procedure can influence what claims get brought and how they proceed.

Governing Law: Setting the Rules of Engagement

This will determine the substantive law which applies to a case. Typically, the decision follows the location of the contracting parties. Sometimes it’s established by industry convention. When evaluating governing law, counsel should note that this decision may grant or preclude certain causes or action or remedies. Without doubt, governing law is consequential to future disputes.

Alternative Dispute Resolution (ADR): Pre-Litigation Strategy

Where parties resolve disputes without recourse to court or arbitrations, this is a win before the game has started. To aid in this outcome, contracts can include pre-litigation dispute resolution steps, such as:

• Mandatory negotiation frameworks
• Mediation provisions to avoid escalation
• Carve-outs for emergency disputes requiring immediate action

Note, however, that vague or open-ended ADR clauses can be weaponized to delay legitimate claims (the equivalent of a coach calling a strategic time-out to sap an opponent of momentum). They can inject confusion as to what steps are mandatory. If an ADR mechanism goes into a contract, counsel should structure them with precision to prevent misuse.

The Second Half: Court or Private Arbitration? 

The choice of forum—litigation or arbitration—is likely to be the most important decision in establishing home court advantage. It may already be dictated by contractual term, or it may be agreed upon once a dispute emerges.

Arbitration is viewed by many as the preferred route for resolving commercial disputes. It offers compelling benefits. However, some cases are better handled in court. The decision requires attention to the following:

1. Confidentiality over the proceedings

Arbitration offers a level of privacy that court proceedings do not. This may be crucial for disputes involving sensitive corporate information, reputational risks or the wish to avoid establishing unwanted precedent. 
On the other hand, some disputes benefit from public scrutiny. If your opponent has reputational sensitivities or if setting legal precedent has value to you, open court proceedings offer a useful spotlight.

2. Control over the Process

Arbitration allows for procedural rules to be customized to parties’ preferences. This can streamline case management and set a predictable schedule, contributing to efficiency and certainty. For complex cross-border disputes in particular, bespoke arbitration process greatly simplifies matters. However, control over process can be disrupted when the rule book isn’t clearly agreed upon and the opposition wishes to sew confusion.

This should be managed with proper attention to the details. According to Carlo di Carlo, litigation partner at Stockwoods LLP, the risk is to companies who allow themselves to stumble into arbitration protocols.

“When parties enter into arbitration agreements and procedural orders, it can be a mistake to rely on blanket references to model law provisions. You may later find gaps in those provisions or vagueness. This can lead to missed opportunities, particularly around disclosure and discovery.” Carlo recommends, “take the time to think about procedural needs, craft provisions that refer to more robust procedures, if that is what is needed, and work with a litigator who is familiar with the space.”

Litigation, by contrast, provides a structured framework with well developed procedural rules. Courts offer:

• Rights of appeal, which arbitration often lacks
• Access to remedies like injunctions, which may be harder to implement in arbitration
• Accountability that comes from judicial oversight

 3. Select the Decision Maker – Choosing Your Refs

Arbitrations offer parties the chance to pick who (and how many arbitrators) will decide the matters in dispute. Arbitrators are generally chosen for their reputations, their subject matter expertise, and their ability to run the arbitration process fairly and efficiently.

Leading litigation and arbitration partner at Blake, Cassels & Graydon LLP, Junior Sirivar points out that, “adjudicators with expertise and experience that may be vital to understanding the dispute. The mining industry, technology, mega-projects, these are all areas where an informed arbitrator may get to a better decision, faster than ordinary court proceedings.”

How though, does one assess an arbitrator’s reputation? Practically speaking, many arbitrators are retired judges, with well established, public track-records. Most of all, it is critical to seek input from dispute experts.

4. Speed to Resolution

Arbitration is often faster than court proceedings—schedules are independent of overloaded court dockets, and arbitrators are incentivized to move cases efficiently.

Still, arbitration is not a guarantee of speed. Whereas courts have robust summary judgement options and consequences for obstructive conduct, the same is not true for arbitration.

Jim Bunting cautions, “while arbitration is generally effective at keeping a dispute private, it does not always offer the expedient and efficient solution that the parties may have intended or expected. I have seen arbitrations drag on longer than complex civil litigation, with multiple jurisdictional appeals to the Court along the way. In those instances, the benefit of arbitration is largely evaporated as the case is no longer private and it can end up being less expedient than typical civil litigation. It is important to consider whether the counterparty is likely to approach disputes reasonably or instead may prefer a delay, blow it all up approach.”

5. Cost Considerations

When parties to an arbitration cooperate and wish to move to resolution, cost efficiency is real. Conversely, when a party to arbitration seeks to cause mischief, arbitration costs can spiral. Add to this the fact that administrative costs and arbitrator fees are borne by parties, and it becomes easy to understand how arbitration expenses can accumulate.

 Just as there are many attractions to resolving commercial disputes through arbitration, there can be unwanted challenges. This is not a one-size-fits-all solution offering home court advantage.

During March Madness, the U.S. college basketball tournament, games are played at neutral venues—no team competes on its home court. This decision isn’t surprising. In sports, home-court, home-ice, and home-field advantage is real, backed by extensive research.

Conclusion: Securing the Advantage Before the Whistle Blows

Just as sports teams seek every edge before game day, companies must proactively position themselves for litigation success. The best home-court advantage comes not at the courthouse steps, but well before—through careful jurisdictional selection, governing law choices, and dispute resolution planning.

The home court strategies set out here are not exhaustive. Success in commercial disputes calls for the right legal team, as discussed in a previous Law360 article, and the appropriate financial resources, as canvased here.  

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.