“Rethinking Litigation Risk And What It Really Means To Win” by Joshua Libling Published in Law360 Expert Analysis Section

On January 21, 2025, Law360 published an article by Joshua Libling in its Expert Analysis Section, “Rethinking Litigation Risk and What It Really Means to Win.”

In the article, Joshua argues that attorneys have a tendency to overestimate litigation risk before summary judgment and underestimate risk after it, but that an eight-stage litigation framework can clarify risk at different points and help litigators reassess what true success looks like in any particular case.

“This article will argue that, generally, we are overestimating litigation risk pre-summary judgment, and underestimating risk after it. There is a tendency to view a plaintiff's case as starting off as a risky proposition, overcoming the motion to dismiss, struggling through discovery and reaching the promised land of summary judgment denial. After that, it's a straight shot to trial, which is risky, but also imposes a lot of settlement pressure. But this common framing misses some key dynamics, such as earlier settlement opportunities, post-trial litigation and enforcement, and the difference between strength on the merits and true success.”

Click on the buttons below to read the full article on Law360’s website or to access the PDF.