September 01, 2015

Sidebar: Learn to Say No

Bad cases never get better, only worse.

Kenneth P. Nolan

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I once had a perfect case, or so I thought. My client was honest, hard-working, a good family guy. You might have heard of the type—almost extinct these days. Liability was obvious, with witnesses, photographs, and a comprehensive police report detailing admissions of negligence by the despised defendant. My client’s injuries were significant and verifiable, with enough plates and screws to build another Verrazano Bridge. So when the insurer suggested mediation, I immediately agreed. That night, while all snug in my bed, visions of dollar signs danced in my head. Even my wife noticed: “What’s wrong? Why are you so happy?”

After decades of litigating such matters, I could recite the script by heart—the mediator will beg and scold; we’ll all roll our eyes and emote like some washed-up Hollywood hypocrite. We’ll storm out, slam the door, come back, sigh a million times, and reluctantly settle with handshakes and pats on the back all around. My lone fear was that we’d have to return a second time to squeeze a few more nickels from the insurer. It was all planned.

I know that negotiation is theater, all lawyers merely players, each with a part and lines. So when the mediator disclosed the initial offer, I sat stunned, dumbfounded. The defendant, it appeared, had a different script with a different ending. My dream of savoring Pigeon de Bresse at Le Bristol in the Eighth Arrondissement vanished. Now I won’t be able to afford a french fry, never mind a three-star Michelin restaurant.

I asked the mediator, a good friend, what was I missing. Nothing, she assured me. They just value it much lower. There was debate about venue, comparative fault, and excellent recovery from surgery, but nothing surprising. I wiped my eyes and stormed back to our office to prepare for trial, a few months away.

They’re just playing games, I believed. Once trial looms, they’ll meet my number and cave. The call came; a higher amount was mentioned but not what I expected. We selected a jury. Court officers, clerks, even judges—who knew my clients—repeatedly warned of the parsimonious nature of the noble citizens of Staten Island. We opened, the judge knocked heads together, and we settled. Hard work it was. And I never made it to Paris.

Trial work is infantry, tramping through the mud, wet and cold, battling for every inch. What I thought would be a stroll in the Tuileries Garden turned into a slog up the hill during a snowmageddon. But everyone who has practiced knows that litigation is a constant migraine. There’s disputed facts, uncertain law. You can’t ignore the mercurial judge and unpredictable jurors. And clients often wonderful and mostly wrong. It’s a ride on the Cyclone with twists and dips, horrifying screams, and a sudden stop at the end.

I knew all this, of course. But just once, just one time, couldn’t I have an easy one? Where the defendant agreed with my assessment and quickly mailed the check? I’m not asking for world peace or anything—just a single case without the angst, the anguish. Is that too much to ask?

I always knew there was no free lunch. No one, I was taught, was magnanimous without a nefarious motive. This perverse upbringing was ideal for a trial lawyer, but it made ordinary life somewhat challenging. So how do those who didn’t have the benefit of being raised on the distorted, paranoid sidewalks of Brooklyn survive as litigators? When every moment is combat, how do you maintain perspective and the ability to laugh?

Ask questions. You can’t leap buildings in a single bound. Too many young lawyers believe that if they admit uncertainty, or mention that the deadline can’t be met because of seven other assignments, it’s weakness. I always thought I was dumb, so I always requested clarification, and more than once. Don’t be afraid to knock on the partner’s door and confess that you have no idea what he wants. Sure you might get admonished by some pompous philistine, but it’s better to confirm you understand the task rather than spend a week struggling, only to watch the partner, as I’ve seen, read the first paragraph, rip the memo in half, and toss it in the trash.

Eventually, we realize that there’s much we don’t know. Which really means we know very little. A confident, disciplined litigator always questions her strategy, her decisions, her conclusions. She seeks assistance and suggestions. All the time. So should you. When in doubt, ask. Even if you know the answer, seek guidance—another’s opinion may include a position you didn’t consider.

Say no. As one desperate to generate business, I scampered to meet every potential client, always searching for a redeeming quality while I sat on the client’s plastic-covered couch. They were solid, honest people after all. How could I doubt their tale of woe? My desire to make rain clouded my judgment. I’ll just write a letter or two . . . the insurer will never litigate . . . my client will be happy with a few peanuts . . . how hard could it be?

A young woman was driving down a hill after a snowstorm. She slid through the stop sign, across the road, and into a snowbank. The car behind her did the same but plowed into the back of her car, with the resulting bum neck and back. “No pay” was the defendant’s position. “What’s sauce for the goose is sauce for the gander” was my adversary’s theme. I used all my persuasive powers, but the jury tossed me in an hour.

Not unexpected, I thought. Until I sat with my client and her mom after the verdict. They were irate—how could I lose? Why didn’t I ask these questions? Why didn’t I subpoena everyone in the town who ever drove a snow plow? The young woman, whose injury was primarily soft tissue, started to cry, moaning about her pain, how her life is ruined and it’s all your fault, Mr. Nolan. I was doing a corporal work of mercy, I told myself. Now I was afraid to answer the door, fearful I’d be handed a complaint naming me as a defendant in a malpractice suit. I had wasted my time and money. For nothing.

The best cases are the ones you reject. Lousy cases are not only a drain financially but on your psyche as well. By litigating the dogs, you can’t devote your resources to the significant ones. More importantly, you’re not doing your client a favor. Their expectations soar when the retainer is signed. No matter how many times you recite that liability is weak, damages nonexistent, recovery is one in a trillion, your client will remember that you “promised” victory. If it’s not profitable, or if the client will run out of money, tell the client. Don’t sugarcoat, or you’ll hear: “Why didn’t you tell me that it would cost an arm and a leg? I would have never started this.” Yes, you’ll have to litigate for some CEO’s uncle who took a flop in the snow, but never believe you can turn water into wine. Worthless cases waste your time, ruin your reputation, and can bankrupt you.

Know your limits. Law is too vast to be expert in more than a handful of areas. You’ll be tempted to litigate matters that you’re somewhat familiar with but not enough to appreciate the complexities and dangers. Resist taking a bite of the forbidden case. You’ll find yourself floundering, spending days learning the technicalities of the product, and the nuances of the law. Disaster. Your adversary, who has handled dozens of such cases, may even sound like Larry Bird trash-talking Dominique Wilkins: “I like you rookie. You got (guts). But I’m still scoring 40 on you tonight.”

Don’t be so nice. You do no one a favor when you volunteer for an assignment you can’t complete timely and meticulously. “Thanks for tackling this,” you’ll be told. “Don’t know what we’d do without you.” But when you do an inept job and neglect other work, the criticism will be sharp: “Why did you volunteer if you didn’t have time? What’s wrong with you?”

Be honest. And I’m not talking about stealing some little old lady’s life savings. It’s about your assessment of the litigation. If the case has problems (and they all do), tell your client. Sooner rather than later. Never wait until the eve of trial for a frank evaluation of your client’s chances. Then it’s too late; then expectations cannot be altered without anger and disappointment. It’s easy to promise happiness and sunshine, to tell clients what they want to hear. Suck it up and admit you’ve screwed up, or the judge tossed a claim, or you may get hit for millions. Bad cases never get better, only worse.

Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, Rye Brook, New York, and is the author of A Streetwise Guide to Litigation (ABA 2013).