Introduction

Litigation is not primarily costly due to court and lawyers fees, but first and foremost due to rather uncertain chances of success. If risks and chances of a litigation have been misjudged at the beginning of the legal proceedings, the legal costs for the court as well as the legal fees for the lawyers cannot be transferred to the counterparty at the end of the legal proceedings. However, until now, even for the most diligent legal adviser it is hardly possible to consider every single objection and argument prior to the procedure, as the facts presented by the client to the legal advisor naturally only show one point of view. Unexpected twists due to the introduction of new evidence during the legal proceedings are therefore nothing unusual.

A builder for example has to assess risks and chances of litigation in case of defective construction work prior to a trial against the responsible contractor. The expertise of the builder, even if it provided by an expert, would only be considered as an opinion of a party in legal proceedings, which means that it can be devalue  or at least equalised by expertise of the counterparty. Notwithstanding the expertise, the builder will therefore not be able to assess risks and chances of litigation prior to legal proceedings. Thus, the best lawyer with special competence in building issues cannot exactly predict the judge’s decision. Further ambiguity exists for example regarding the question of how the supervising employee will testify. It is even possible that the supervising employee intends to move abroad and can only, if at all, give evidence via the formal proceedings after a request to the authorities, which is a very time consuming procedure. This adds another incalculable risk to the litigation.