Every day a lawyer tells his client about the vagaries of litigation. Going to trial in America means uncertainty, cost, and often an unfair outcome. (Outside America, even more unfair.) When you’re a defendant you can’t escape it. But when you bring the case – when you’re a plaintiff – you have to take this into account. There is never a sure thing, never.

Litigation is thus a little like war. Uncertain, costly, often with an unfair result. When you are attacked you have to deal with it. When you attack you take your chances.

The dangerous point: the distinctions between defendant and plaintiff, attacked and attacker. Attackers say they were attacked, although in a way that may not have been war. Plaintiffs say they were damaged, but not in litigation. It spirals backward. Who committed the first offense? As we said on the playground, who started it?

And -- in trials we almost always just deal with money. In war we deal, always, with death. The calculus is similar. The stakes are not.