One of the great joys of being chair of the Section of Litigation is the opportunity to write the Opening Statement column. Where else can you write an article on your choice of subjects, and pretty much be guaranteed that it will be published? It is my pleasure to take the baton from previous chairs, all of whom are such good writers that they could describe paint drying and make it seem interesting. I will do my best to continue a long tradition of articles that provide useful advice to our members, without being boring. My goal is not only to have each of you read the Opening Statements, but also to read to the end of the issue.
As we all know, litigation is an art, not a science, and every case is different in its needs and its challenges. This is what keeps us engaged year to year. It is also one of the reasons that some lawyers are much better litigators than others. Litigation requires a constant series of judgment calls, ranging from which attorneys to assign to a case, where to file suit, which witnesses to put on the stand, and which questions to ask during voir dire. Judgment calls involve procedural as well as substantive issues, and also involve ethical and business questions. For those lawyers at law firms, there are additional judgment calls about working with other lawyers (and non-lawyers).
The following advice is derived from my 35 years of practice, exclusively as a business litigator. The views and opinions are mine, not those of the ABA or the Section of Litigation, and there are many seasoned litigators who will disagree. I hope at least a few of them are of use.
- 1. Choose Your Clients Wisely
Many lawyers give much thought to generating new business, but very little thought as to what business they should turn away. We all know the experience of having a client or a case that we wish we had never taken. The best way to avoid this is to give more thought to the client and case at the beginning, before you accept representation. For example, if a prospective client comes to you and one of the first things he or she does is trash his or her prior lawyers, worse yet, multiple sets of prior lawyers, this should be a bright red flag. Odds are the client will eventually turn on you as well. Similarly, the client that thinks he or she is a lawyer, but is not, is generally trouble. There are all sorts of warning signs for what is likely to be a problem client. Your malpractice carrier will be happy to send you articles and make a presentation on what clients to avoid. In any event, give it more thought each time you accept a client or case. Do yourself a favor and think before accepting a new client. A little bit of thought at the beginning can save a lot of headaches later on.
- 2. The Best Source of New Business Is Existing Clients
We all spend a lot of time looking for new clients. All of the consultants agree that the best source of new business is existing clients. This applies whether you are at a full-practice firm and can cross-sell your other practice areas, or you are a solo practitioner who only handles a specific type of litigation. Your existing clients know you and, presumably, are happy with your work. Make sure you keep them happy, and make sure they know you want additional work. Be careful about complaining about how busy you are. A client may feel that you are too busy to take on more work for him. Tell clients how much you appreciate their business, and that you hope to continue working with them on additional matters. This is particularly important when a case ends. You want to keep the contact and maintain the steady stream of communications. You know how difficult it is to get new clients. Keep the ones you have happy so that the need for new ones is reduced.
- 3. Treat Court Personnel with Respect
I was once talking with a court clerk who was in charge of getting records on appeal sent to the appellate court. While we were talking, a lawyer came up and started yelling at her. She told him that he had misread the rules and his appeal papers were not in the proper format. He said that he was the lawyer and that she should just send the record to the appellate court the way he had it. After he left, the clerk told me that (a) the record would not be sent on time (her choice); and (b) the appeal would most likely be dismissed because the lawyer didn’t do it properly. You are much better off with the court clerks on your side. The same holds true of staff (and lawyers) at your firm, but more on that in another article.
- 4. Don’t Believe Everything You Read or Hear (Especially on the Internet)
We are accustomed to assuming what we read or hear is true. In your career as a litigator, don’t be cynical, but at the same time, don’t take everything at face value. For example, I had a case a few years ago where the timing of various faxes didn’t make sense. I tried to fit the timing of the faxes into a meaningful time line. One day I had an epiphany. One of the parties’ fax machines was set wrong. It was a day off. Thus, faxes that seemed, by their time stamp, to be responses, were actually proposals. (Also, consider time zones when you are looking at the time an email was sent.) In the same way, when opposing counsel tells you they have produced all the documents relating to something, don’t necessarily take their word for it. Question deponents, and use other methods such as subpoenas, to make sure you get everything you need. This is particularly true with electronic discovery.
- 5. There’s No “Best” Way
There are a lot of subjective decisions to be made in litigation. There is no “best” way or only way that things can be done. Taking a deposition, cross-examining a witness, and even which claims or defenses to assert and which to drop, are all very fact specific and subjective. These strategy decisions are what separate top lawyers from mediocre lawyers. A motion doesn’t have to be specified in the rules. You can move for almost anything. Every case doesn’t necessarily have to follow the pattern of complaint, motion to dismiss, answer, discovery, motion for summary judgment, settlement. Sometimes you can skip a step or two. The key is to think creatively and think strategically. Do the initial thinking at the beginning. Having a game plan from the start ensures that what you do is in furtherance of that plan. Then, periodically reassess where you are and whether your initial plan still works. Don’t be afraid to change your strategy as the case evolves.
- 6. Keep Your Eye on the Big Picture
All too often, lawyers get bogged down in the minutia of litigation. They spend so much time making sure that they get every last piece of paper (or electronic data) in discovery, that they forget what the lawsuit is really about. Early in the case, identify exactly what you have to prove to win. What are the elements that you must prove or disprove? What are the key defenses and what must be proven or disproven? Everything you do during the case should be directed towards that end—what do you need to prevail? In some cases, that will mean what do you need to prevail on a motion for summary judgment. In other cases, it will be at trial. In every case, you should have a plan of what you need to do to win, which in some cases means a good settlement. Keep your eye on the ball.
- 7. Don’t Drink the Kool Aid—Be Realistic in Assessing Your Case
We are and need to be creative in our theories and defenses. But don’t get enamored with your own ideas. Be realistic about the strengths and weaknesses of your claims and defenses, and of your case as a whole. One of my favorite lawyer stories was told to me by a very senior lawyer when I first started practicing. He was recounting one of his first experiences as a trial lawyer. He tried a case and lost. He was at the local tavern talking with one of his mentors, and he was somewhat depressed. The old-timer asked him what was wrong, and he explained that he had taken a case to trial and the jury ruled completely against him. He and his client got nothing. The old-timer asked what had been offered by the defendant in settlement and he replied, “nothing.” The old-timer said, “maybe you should have taken it.” The point of the story is to be realistic. If you have a really bad case, you don’t want to go to trial. Do your best to settle. And, most importantly, make sure the client knows the realistic chances of success.