GPSolo Magazine - Oct/Nov 2003
How to Handle a Legal Curveball
No matter how long a lawyer is in practice, there will come a day when the other party suddenly throws a curveball that you are unable to hit. Even if the courtroom is practically empty, the judge, counsel, clients, and court personnel are there to witness the pitch. The ball is flying toward you, and all you can think is, how did I end up in this predicament?
You know you've done all the right things and made all the right moves. But even in a perfect world, a competent lawyer should anticipate surprises. Remember the adage "a stitch in time saves nine"? Here are some guidelines that can help you save your peace of mind and your pocketbook.
Always consider all sides of your case—you may find the bad and ugly abound. Now you come to the conclusion that you should have refused the matter at the outset. Most clients do not reimburse their lawyers for costs advanced when the case is lost. Right now, however, the Grand Canyon is ahead and you're fast approaching the brink.
Thinking on your feet is a requirement for anyone who goes into a courtroom or enters into negotiations. For example, in a divorce case you try to use your client's testimony to enter into evidence the husband's expenditure of marital funds to buy a gift for his girlfriend. Objection: hearsay. What to do? If this spouse is in arrears on child support or claims he cannot pay attorney fees, this purchase is evidence of the lie. Call the other party, treat him as a hostile witness, and have him prove up his expenditures and the reason he used marital funds for this purchase and any other items you believe will help your case.
More often than not, a lawyer prepares a case with blinders on and does not review the issues in the case from the other side. Unfortunately, legal research may be becoming a lost art. The advent of the technological age has increased legal productivity, but there is no substitution for the legal thought process. I've often wondered why legal billings do not show legal research or thinking time as an entry. Do clients wonder how an attorney figures out the best way to present their case? I have never had a client ask me that question. Apparently, clients believe in the world of sudden and unexplained miracles.
The thoughtful attorney, like a good soldier, must know the battlefield. Whether you want to be successful in litigation or in a tactical military engagement, you must prepare your case as if you represent both sides; then consider how the case will be viewed from the fact finders' and the judge's viewpoint. This can minimize surprises but won't eliminate them.
Complete preparation begins at the initial interview and continues down to the decision and onto the appeal. Each client wants the best, but reality may intrude:Although you can identify all possible witnesses (eyewitnesses, character witnesses, police, ambulance drivers, doctors/chiropractors, and so on), the client may not have the funds to produce all of them. Fortunately, the case may not require this—and doing so might be gilding the lily. A deposition should be short and to the point. Judges and juries often fail to grasp subtle points that may be obvious to you but will not help the party whose job it is to decide your matter. Here, simplicity may carry the day. Be direct and straightforward. Do not let the facts and witnesses of the case get away from you. In the end, adapt and overcome each obstacle placed in your way by the other side, your client, and random events.
When to take a timeout and ask for continuance or recess is a tactical call the attorney must decide in each instance. In trial, the party who makes the fewest mistakes will prevail—notice I said "fewest," not "no."
Holding the other side accountable to the rules of evidence and civil procedure shifts the burden to the other side. The local court rules of course stress fairness and fundamental due process; make sure the court is aware of any attempts to deprive your client of these benefits. In a matter tried to the bench, the judge will appreciate your efforts to ensure fairness and due process for your client in the face of an opposing party who attempts to ignore the rules and deny to your client these rights.
Don't let yourself be forced to make a quick decision. Don't cede control of the case to the other side. Force the issue upon the opposition. Don't lose your composure. Don't lose your game face and confidence. Be assertive and positive in the face of a clever pitch-perfection is impossible, but success is our goal.
Alan E. DeWoskin practices law in St. Louis, Missouri. He is licensed in Missouri and Illinois. He is a former chair of the GP Section and can be reached at firstname.lastname@example.org.