I’m a litigator, and I like thinking of myself as such. I participate in written discovery, review and assess thousands of pages of documents, take and defend depositions, and try cases. I’ve learned that every aspect of a case should be conducted in furtherance of preparing the matter for trial. Interrogatory responses, site inspections, party depositions – none of them happen in a vacuum. Everything that happens in a case is (or should be) in anticipation of putting your client in the best position for final resolution.
Tunnel Vision for Litigators
As a trial lawyer, sometimes when I catch a scent — the plaintiff has a pre-existing injury she didn’t disclose, or went rock-climbing after he allegedly tore his rotator cuff in the accident, or has been in three subsequent accidents and has a different lawyer for each — I can be kind of like a hound dog. Everything else goes dark, and there is only where the scent is leading. I am not alone in this tunnel vision. Frank Ramos of Clarke Silverglate recently commented:
As lawyers, we become so wired to become advocates, that we may buy into arguments that a more objective counselor simply wouldn’t make. When analyzing the strength of an argument, ask yourself, “How would I respond if I was on the other side? What if this argument was being made against me?” Sometimes we stretch the facts and law too far to find a winning argument when in fact we’re jeopardizing our credibility by pursuing an argument that we would find laughable if we were on the other side.
Then in the distance I hear a faint, echoing voice. The rest of the world around me slowly illuminates again. The voice is my client, who wants to position the case for settlement, if we can do so reasonably. This is hugely disappointing. I was already envisioning the plaintiff’s expression as I impeach him in front of the jury and his lawyer’s abject horror as their case falls apart in front of their eyes. It was going to be glorious.
Unless it wasn’t. Trial is expensive and uncertain. The judge can always keep out evidence that you believe is due to come in, even that incredible evidence that was going to cause you to be revered with the likes of Williams Jennings Bryan and Thurgood Marshall. And then there are juries, which are … well, juries … juries are an unknowable creature, an entity unto themselves unlike any other. These are the things that keep clients from sleeping well at night.
Be the Problem Solver Your Client Needs
The best way for you to advocate for your clients is to understand their goals and objectives, which may or may not include trying a particular case. They may need to get a case positioned for reasonable settlement. They may want to salvage a business relationship at the conclusion of the matter. But mostly your clients need you to understand there are things to consider other than storing up armaments and making battle plans in preparation for war. Your clients don’t need you to be a trial lawyer. They need you to be a problem solver, which sometimes involves trying cases.
Photo by Ray Nelson.
