The Fine Line: Legitimate Defense or Obstructive Litigation?  

Litigating every day in the country’s courts reveals an inescapable reality: civil proceedings are no longer solely a means of resolving disputes. Today, court proceedings are no longer a space where only substantive rights are discussed, but also where tactical disputes are fought over timing, measures, resources, and their effects. What should be a tool in the service of justice sometimes becomes a field of maneuver where procedural strategy overshadows the substance of the conflict.

All litigants know that a well-argued preliminary objection should purge the proceedings; that a preliminary injunction can completely change the balance between the parties; or that the filing of an appeal can have significant legal or even extra-procedural effects. Using the tools that the law offers to protect the client’s interests is a legitimate dimension of litigation.

Notwithstanding the above, not every appeal, exception, or mere request is legally reasonable or ethically acceptable. When the process is used solely to delay, wear down, or coerce, there is a deviation from the procedural purpose. Justice then becomes a form of resistance, not a solution.

Proceedings are unnecessarily prolonged, the courts are overburdened, and a perverse incentive is created to litigate not in search of a judgment that will settle the dispute, but as a form of illegitimate negotiation, pressure, or retaliation. The process ceases to be a means and becomes an end in itself: litigation is not pursued to obtain justice, but to prevent the other party from exercising it.

In this context, the role of the trial lawyer takes on a particularly delicate dimension. Their responsibility is not limited to knowing the means available to them under the law, but also to assessing the impact that their use will have on justice. It is not just a matter of litigating well, but of litigating meaningfully. Because not every legally possible action is legally reasonable, and not every procedural remedy is ethically defensible.

Litigating well does indeed involve knowing the variables of the process, but above all, it involves being clear about why one is litigating. That question is what distinguishes those who defend a right from those who merely seek to delay it.

Sebastián Meany
smeany@alegalis.com