Don’t Handle Your Case Like the Writers of the TV Show “Lost”
Lost went off air in 2010, so this may not be the most culturally relevant of comparisons. But I can’t think of any other show or movie that fumbled on the goal line quite so remarkably as Lost. I binge-watched the show after it had gone off air, so I had a truncated viewing experience. The first few seasons were quite good. Seasons 4 and 5 got a little wonky. And by the conclusion of the finale in Season 6, I was like, “I’m sorry, wut?!?”
Like the title suggests, if you handle your case in the same manner, it’s going to be a disaster. And the ultimate result will be that there won’t be many more cases coming down the pike. Because unlike other career options, there isn’t anywhere for a litigator to hide. The buck stops with you!
Mastering the Start
Mastering the start is easy. Anybody can start a case off on the right foot (which isn’t to say everybody does). Identify your claims and the defendant(s) against whom you’re making claims, including any fictitious parties. Draft and file your Complaint prior to the tolling of the statute of limitations. Or if you’re on the flip side, timely file your Answer and plead your affirmative defenses (i.e., sudden emergency or contributory negligence).
In either case, generally, you should immediately file discovery requests upon the opposing party. It puts pressure on your opponent to take active steps to participate in litigation and prevents the case from being filed then going dormant. And if discovery requests are issued to your client, respond on time, especially to Requests for Admission.
Lost started with a plane crash, but the crash was just the beginning. Then a flurry of other activity commenced. Your cases shouldn’t be any different. The lawsuit is your crash. Now it’s time to start triaging the situation and plotting the appropriate courses of action!
Muddling the Middle
There are a lot of bands that release a really good first album. They’ve had their whole lives to write the songs that are on that first album. But then they’ve got about nine months to write the second album, and it’s terrible. A band that debuted with much promise flounders and is never heard from again. There’s stress, adversity, and uncertainty in following up that initial course of action.
Filing suit or answering one. Issuing discovery requests. Those are easy tasks. There’s very little uncertainty. But then it gets tricky. You consult with your client to answer discovery. Gather and sort through documents for production. You schedule your opponent’s deposition and put your client up for deposition.
You prepare your client for his deposition, and review all the facts and deposition rules with him, but his deposition could still go sideways. Documents produced during discovery may suggest that liability lies with your client, or that your client’s knowledge of the situation is different from what he expressed to you.
It’s how your handle your case when the middle gets muddled that will determine whether you muck up the end. The middle is bound to get murky. There’s a lot of debris flying around in the form of information, documents and records, and expert opinions. Stay your course and don’t lose your bearings.
Mucking Up the End
A sure-fire way to muck up the end of the case is to fail to communicate with your client. When you first got into the case, you may have provided an initial evaluation. But it’s not uncommon for an evaluation of a case to change during that messy middle. That change can often lead to an uncomfortable conversation you need to have with your client.
If you decide not to have that uncomfortable conversation, you’re doing a disservice both to yourself and your client. He or she may still have the sunny expectations you instilled at the outset of the case. Now you know that the skies have gotten gloomy. You aren’t going to be able to hide it for long, nor should you try. The case will move forward regardless of how you prepare your client (or don’t).
A case is going to end one of two ways, with a judgment or a settlement. You’re going to get it dismissed, settle it, or try the case. If you haven’t communicated with your client and haven’t prepared him for what’s to come, not only have you done him a disservice, but you’ve already mucked up the end.
While we typically enjoy a twist or surprise ending in a show or movie (although those kinds of endings can certainly be poorly executed, i.e., Lost), your client does not want any surprises at the conclusion of his case. If at the end of the case, your client turns to you and says, “I’m sorry, wut?!?,” you’ve handled your case like the writers of Lost and mucked it up.
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Artwork via Wikimedia Commons.