There has to be some order to the system, right? Some respect for law? Some recourse for those harmed by people who break “the rules”? That is the bet that plaintiffs are taking when launching a litigation or arbitration—that the decisionmaker will arrive at a just ruling, and that the decision will be respected or, failing that, enforced by a third party. As litigation funders, we take that bet alongside plaintiffs in the cases we invest in. Unfortunately, we also find that for some plaintiffs looking to the courts or arbitration panels for recompense, proving the defendant’s liability can be much closer to the beginning of the story than the end. That is why plaintiffs—and their counsel—embarking on a time-consuming (not to mention expensive) dispute should always consider the endgame before the opening bell is rung.

It is understandable that plaintiffs often enter disputes highly confident in their chances of success on the merits of their claims, and equally confident that the defendant can and will honor a judgment or award. It is simple human nature to believe in one’s own cause. But human nature is also present on the other side of the “v.,” and can push defendants to find ways out of paying any judgment or award, or otherwise render a plaintiff’s victory a pyrrhic one. At an absolute minimum, any defendant facing a significant judgment is sure to at least consider and weigh the consequences of resisting or delaying payment. And so, plaintiffs and their counsel should not let optimism at the outset of a case distract them from considering, and planning for, a scenario where the defendant cannot or will not pay.

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