What Are the Shortcomings of Litigation?

As lawyers who have spent years advising clients, filing actions, defending claims, and standing before courts, we can confidently say this: litigation is not always the best solution to every dispute. While litigation remains the backbone of formal dispute resolution worldwide, it comes with significant shortcomings that are often underestimated by litigants at the outset.

Many clients approach us believing that going to court guarantees justice, speed, and closure. Experience has taught us otherwise. Litigation is often slow, expensive, emotionally draining, uncertain, public, and adversarial. These drawbacks affect individuals, corporations, governments, and even the justice system itself.

In this article, we critically examine the shortcomings of litigation, drawing from legal practice, judicial commentary, statutory frameworks, and academic authorities across jurisdictions. Our aim is to equip readers—lawyers, business owners, policymakers, and the general public—with a realistic understanding of litigation’s limitations and why alternative dispute resolution (ADR) is increasingly preferred globally.

What Is Litigation? (Brief Overview)

Litigation refers to the formal process of resolving disputes through the courts, where parties present arguments and evidence before a judge (and sometimes a jury), who delivers a binding decision.

Despite its authority and finality, litigation is widely acknowledged as a method of last resort in modern legal systems.

1. Delay and Prolonged Resolution of Disputes

The Reality of Court Delays

One of the most serious shortcomings of litigation is delay. Court cases frequently last years, sometimes decades, before final resolution.

As practitioners, we have handled matters where:

Trial took several years
Appeals consumed additional time
Enforcement became another legal battle

Justice delayed, as famously stated in R v. Sussex Justices (1924), often becomes justice denied.

Causes of Delay

Congested court dockets
Frequent adjournments
Procedural technicalities
Interlocutory applications
Appeals and post-judgment motions

In many developing and developed jurisdictions alike, courts are overwhelmed, making swift resolution unrealistic.

2. High Cost of Litigation

Financial Burden on Litigants

Litigation is expensive, often prohibitively so. Legal fees, filing fees, expert witness costs, transcription expenses, and enforcement costs accumulate rapidly.

We routinely advise clients to consider whether:

The cost of litigation outweighs the claim value
Legal fees may exceed potential recovery

Hidden and Indirect Costs

Loss of productive time
Business disruption
Reputational damage
Emotional stress

As noted by Professor Richard Posner, litigation costs represent a deadweight loss to society when disputes could be resolved more efficiently elsewhere.

3. Uncertainty and Unpredictable Outcomes

No Guaranteed Winner

Litigation outcomes are inherently uncertain. Even strong cases can fail due to:

Evidentiary gaps
Judicial discretion
Procedural errors
Unfavorable interpretation of the law

As lawyers, we never guarantee outcomes. Courts decide based on evidence, law, and interpretation—not sentiment or expectation.

Judicial Discretion

Different judges may reach different conclusions on similar facts. This unpredictability creates risk, particularly for commercial litigants seeking certainty.

4. Loss of Control by the Parties

Courts Control the Process

Once litigation begins, parties surrender control to:

Court schedules
Procedural rules
Judicial decisions

Clients often express frustration that they cannot:

Choose hearing dates freely
Limit issues strictly
End proceedings unilaterally

Unlike mediation or negotiation, litigation removes autonomy from the parties.

5. Adversarial Nature and Relationship Breakdown

Litigation Encourages Conflict, Not Cooperation

Litigation is inherently adversarial. One party wins; the other loses.

This structure:

Escalates hostility
Deepens resentment
Destroys personal and commercial relationships

In family disputes, business partnerships, and employment relationships, litigation often leaves irreparable damage even after judgment.

Academic Insight

Legal scholars, including Lon Fuller, criticized litigation for failing to preserve ongoing relationships, noting that adjudication is ill-suited for disputes requiring collaboration.

6. Emotional and Psychological Stress

The Human Cost of Litigation

Beyond legal issues, litigation imposes severe emotional strain:

Anxiety
Depression
Sleep disorders
Public embarrassment

We have seen clients emotionally drained long before judgments were delivered. The stress of cross-examination, public hearings, and prolonged uncertainty cannot be overstated.

7. Public Exposure and Loss of Confidentiality

Litigation Is Public by Default

Court proceedings are generally open to the public. Filings, testimonies, and judgments become part of the public record.

This is particularly damaging in:

Commercial disputes
Family matters
Intellectual property cases
Reputational conflicts

Unlike arbitration or mediation, litigation offers little to no privacy.

8. Technicality-Driven Justice

Substance Often Loses to Procedure

Courts are bound by procedural rules. As a result:

Meritorious claims may fail on technical grounds
Cases may be dismissed for procedural non-compliance

The Supreme Court of Nigeria has repeatedly warned against undue technicality, yet procedural rules remain decisive.

This reality often shocks litigants who assume courts focus solely on fairness rather than form.

9. Limited Remedies and Rigid Outcomes

Courts Are Bound by Law, Not Creativity

Judges can only grant remedies allowed by law:

Damages
Injunctions
Declarations

They cannot craft flexible, interest-based solutions that address emotional, relational, or future concerns.

In contrast, ADR allows parties to:

Apologize
Restructure relationships
Agree on future conduct

Litigation is backward-looking, not solution-oriented.

10. Appeals Prolong Disputes Further

Finality Is Often an Illusion

Even after judgment, litigation may continue through:

Appeals
Cross-appeals
Supreme Court reviews

Each layer adds time, cost, and uncertainty. Enforcement itself can become another lawsuit.

As practitioners, we often say: Winning in court does not always mean winning in reality.

11. Overburdened Judicial Systems

Systemic Inefficiency

Litigation contributes to congested courts, slowing justice for everyone.

Judiciaries worldwide now encourage:

Mediation
Arbitration
Court-annexed ADR

This reflects a global recognition that litigation alone cannot sustain modern justice systems.

12. Inaccessibility to the Poor and Vulnerable

Litigation Favors the Financially Strong

Due to cost and complexity, litigation often excludes:

Low-income individuals
Small businesses
Marginalized communities

This reality undermines access to justice, a principle enshrined in international human rights law.

13. Geographic and Jurisdictional Barriers

Cross-Border Litigation Challenges

In international disputes, litigation faces:

Jurisdictional conflicts
Enforcement difficulties
Choice-of-law problems

Global commerce increasingly favors arbitration for this reason, as recognized by the New York Convention 1958.

Why Litigation Still Matters (Balanced Perspective)

Despite its shortcomings, litigation remains essential:

For constitutional interpretation
For criminal accountability
For enforcement of rights
When ADR fails or is inappropriate

Our position is not anti-litigation but pro-appropriate dispute resolution.

Conclusion: Litigation as a Last Resort

From decades of collective legal experience, we conclude that litigation is powerful but imperfect. Its shortcomings—delay, cost, uncertainty, emotional strain, and rigidity—make it unsuitable for many disputes.

Modern legal practice demands wisdom in choosing how, not just whether, to pursue justice.

As lawyers, we owe our clients honest counsel:

The best legal solution is not always the courtroom—it is the one that delivers justice efficiently, fairly, and sustainably.

Frequently Asked Questions

Is litigation always bad?
No. Litigation is necessary for enforcement of rights, criminal justice, and constitutional matters.

What is the biggest disadvantage of litigation?
Delay and cost are universally considered the most significant drawbacks.

Is ADR better than litigation?
ADR is often faster, cheaper, and more flexible, but not suitable for all disputes.

Academic and Legal Authorities Referenced

Lon L. Fuller – Forms and Limits of Adjudication
Richard A. Posner – Economic Analysis of Law
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)
Supreme Court jurisprudence on undue technicality
Comparative procedural law texts