A business or individual facing litigation needs a litigation attorney who knows the courtroom, and who also sees beyond the courtroom. The good litigation attorney makes it part of his or her job to understand the effects on the client of getting involved in and pursuing litigation. Litigation can be a lengthy, expensive, and sometimes irrational experience that can be as disruptive as it is helpful. The choice to engage in litigation must be well considered, and, if the client decides on it, well planned and executed.
This article is based upon two premises. First, a good lawyer works on the premise that he or she is seeking the client’s ends and not his or her own personal ends. Litigation counsel can only serve their client by looking at the big picture from the client’s point of view. Second, to serve the client’s good, wise litigation attorneys take their thinking beyond the application of legal principles and trial advocacy. They reflect upon and analyze matters that match the breadth of the client’s interests, and do not begin their thinking with how to draft the complaint. The point is not, “How can I, the attorney, win the case,” or obtain some personal objective; rather, within their ethical bounds, the good attorney’s sole focus is: “What is it that my client needs to have a successful outcome to this dispute.”
A fictional case makes the basic point. Imagine circumstances where an attorney is contacted by a small but growing manufacturer about potential litigation. The client is outraged because one of their purchasers has rejected the client’s goods, claiming that the goods were not of the required quality. The client takes tremendous pride in their products, knows the goods were up to standard and is certain that the other party just wants to avoid making payment because of financial difficulty. The client is concerned that their reputation is going to be harmed in the industry.
The facts make for a good case and the client is financially able to pay the law firm’s highest rates, though litigation through trial would be no small expense for the client. A narrow thinking lawyer will see the strengths of the case, add fire to the client’s outrage and proceed rapidly in preparing a complaint. The lawyer’s only counsel will concern giving direction to the client on what information and documents are necessary to fuel a successful litigation.
On the other hand, the attorney who is truly thinking about the client first sees that the putative defendant is possibly on thin financial ground and may be judgment proof. Despite the client’s anger, this lawyer will raise the issue of whether the client should pursue the breaching party since a judgment may not yield any money if a case is brought and won. There will also be a thorough discussion on whether publicity about the rejection of the client’s goods could hurt the client’s reputation, and what might happen in the long run if no suit is brought to vindicate the client’s product.
The client may very well decide to bring suit as quickly as possible, either to preserve their reputation or to create a reputation in the industry that others should expect to be hauled into court if they do not honor their contracts. On the surface, this gives the same result as with the first lawyer who did nothing other than move the client directly toward litigation. Even so, there is a tremendous difference. The second lawyer helped provide the client with an opportunity to think about all of their needs, and to look at the possible long term consequences of their actions, before the client decided what action they wanted to take.
Moreover, in different circumstances, the client might have decided that the breaching party is known in the industry to be unreliable, and the rejection would have no effect on the client’s reputation. Likewise, after discussing it with counsel and reviewing the matter internally, the client could decide that it would be a misapplication of their time, money and energy to pursue a litigation that would not result in any recovery. In the case where the client was led immediately to litigation without any thought on these matters, the client might come to this same conclusion only after spending tens of thousands of dollars, as well as the time and energy of their officers and employees, on something that hard experience showed was not worth it in the first place.
Though each case is unique, it is worth setting out general areas that an attorney should think about in giving counsel to a client contemplating litigation:
1. KNOW THE NATURE OF THE DISPUTE BETWEEN THE CLIENT AND THE OTHER PARTY.
There has to be a context for the lawyer in which to understand the meaning of the events that actually happened. The lawyer needs to understand the client’s business and how that business is connected to the other party. This may include the need to understand background information as varied as the basic mechanics of how a piece of machinery operates to the use of a language that does not exist outside of that business. Once knowing the context that can give the events meaning, the lawyer can more fully recognize, learn and assimilate the important facts. This information will be gathered through interviews, document investigation and investigation of facts known by non-parties to the dispute, along with any other investigation required by the unique setting of each dispute.
2. KNOW YOUR CLIENT.
This includes knowing the type of information described above in getting to understand what occurred in the matter at hand. It also includes knowing: the client’s business culture, philosophy and practices; the client’s needs and goals in their business and how the litigation fits into the business; the parameters of what the client is willing to do or can do in terms of resolving a dispute by litigation, as opposed to some other means; and the people who the attorney will actually work with and/or who have direct knowledge of the events at issue. The lawyer must recognize what he or she understands about the nature of the client’s business and the facts at issue. Attorneys must accept that, when they do not understand something, they have to keep inquiring until they have sufficient knowledge to evaluate the case adequately for the client.
In this category, the attorney should also clearly understand what the client’s expectations and limitations are concerning litigation expenses.
3. KNOW YOURSELF.
The lawyer has to recognize what he or she can and cannot do. A transactional lawyer should not take his or her irst shot at litigation because a multimillion dollar suit has fallen into his or her lap. Lawyers must recognize their strengths and limitations, including their experience and knowledge in relation to the kind of experience and knowledge required by the circumstances that the client is facing.
Lawyers are trained to analyze, argue, advocate and persuade. This training includes advocating with full force positions that are objectively weak. Attorneys who thinks clearly about their client’s case do not get swept up by their own skills. Such an attorney does not advocate, in his or her own mind, a view of the client’s case that is one-sided, omits weaknesses or finesses those weaknesses. Good case evaluation and planning does not depend on those skills; rather those skills are included as something to be used within the litigation. The client may well want a lion in the courtroom, but needs to talk to the lion tamer in determining whether to go there or not.
4. KNOW THE LAW
The lawyer must be familiar with the substantive law that is going to control the case, and the possible legal theories that could apply. An attorney must do what is necessary to become familiar with the applicable law through legal research, discussing the matter with other attorneys or by whatever other means are necessary to do the job properly.
The lawyer must be familiar with all of the procedural rules that might apply in a court or other forum, such as in arbitration or mediation. This includes being familiar with general rules, such as the Federal Rules of Civil Procedure, as well as the local rules of a particular county court or federal district. Such familiarity is not only important in practice, but it can be important in deciding where to bring suit. For example, the mandatory disclosure requirements in federal court may be a factor in choosing or avoiding that forum.
An attorney must know the applicable ethical and professional rules. These rules do not simply govern the attorney’s conduct in some sort of generalized way that has little tangible effect on a case, but can have real and practical effect on the case. Thus, e.g., these rules could determine whether the lawyer can speak privately with an employee or former employee of the adverse party about information that could determine the outcome of the dispute.
5. KNOW YOUR OPPONENTS.
This means learning about the nature of the other party’s business, personnel and affairs that can have some bearing on the case. The lawyer should recognize that the client can be a resource in identifying sources of information and in obtaining information. The lawyer should be aware of private and public information sources as well as the need to do computerized research.
An attorney should also learn about opposing counsel. Opposing counsel’s abilities and attitudes may be critical in determining how to negotiate a case, how hard to push in litigation or where to push. This is information that may be important for the client to have in making their determination as to how to proceed.
6. KNOW WHAT ALTERNATIVES ARE AVAILABLE TO THE CLIENT.
The lawyer should be, or should become familiar with, the realm of possible means of resolving disputes. This includes, e.g., litigation in court, court provided arbitration, private arbitration or adjudication, mediation of various types, advisory juries, summary trials, lawyer to lawyer negotiations or requesting the assistance of a mutually respected neutral third party. This should also include the idea of looking at resolution of the problem in creative ways that may benefit both parties, e.g., by structuring a new transaction (if sufficient trust exists).
7. KNOW THE PEOPLE WHO ARE GOING TO DETERMINE THE OUTCOME OF THE DISPUTE.
The lawyer must learn what he or she can, and explain to the client, about the nature of the people who could decide the dispute, e.g., the tendencies of the community that could form a jury pool, the types of arbitrators used in a particular forum, etc. In cases where a specific judge, arbitrator or mediator is known, the lawyer should also strive to learn about any practices required by that person as well as that person’s propensities, attitudes and prior rulings in similar cases. For example, where the client is an insurer defending an action, and the judge randomly assigned to the case had been a leading member of the plaintiff’s personal injury bar before being appointed to the bench, this factor may require more weight than many of the facts in the case.
8. KNOW WHO MAKES THE DECISIONS.
The lawyer gathers information and makes evaluations for the client. The lawyer must accept, however, that it is the client who makes the critical decisions. In some instances, the client’s decision may be to allow the lawyer to make the decision on the matter at hand because of the lawyer’s greater knowledge, experience or expertise; but leaving this up to the lawyer is the client’s decision. An attorney should never presume to keep an important choice in the case from the client because the attorney thinks he or she has greater knowledge, experience or expertise to which the client should defer.
9. KNOW HOW TO RECOGNIZE WHEN YOU HAVE LOST FOCUS
The lawyer who puts his or her own interests first sees the client as merely another object in the case that has to be dealt with. This lawyer will lack awareness, the ability to listen fully to the client and the facility to recognize the importance of all the relevant facts. An attorney driven chiefly by self-interest filters everything the client says through that attorney’s own thoughts. Instead of listening to the client, such an attorney only hears their own voice as it mixes in or speaks over the client’s voice. When this lawyer believes the case to be a certain way, he or she fixes that mental image early on, becomes inflexible and finds it difficult, if not impossible, to pursue, accept or analyze all of the facts that may arise; much less to report their significance to the client.
By contrast, attorneys with the proper awareness will find it easy to learn from and respond to their clients. Such lawyers will naturally recognize that, although the client may not know the law, the client will know more about their affairs and their business than the lawyer does. Clear thinking lawyers are patient, hear and listen to their clients. They learn about the facts and background of the case and ask questions to make the client’s explanations clearer. They recognize and give consideration to all facts, even if those facts do not fit that attorneys’ earlier ideas or conceptions about the case. Such lawyers respond with clarity, and without fear, to new developments. They respect the client, take the time and make the effort to keep the client clearly informed.
This is not an exhaustive list; other factors certainly exist. In fact, there can be no exhaustive list because of the unique nature of each client and case – and each lawyer. The categories listed above are merely a useful way to start a lawyer thinking about these matters, and to begin cultivating the habit of thinking in a broader way. In the end, the kind of thinking the lawyer should aim for is not the result of following a formula, but the result of the lawyer’s own efforts, attitude, qualities and willingness to change as necessary. The ongoing practical experience of exercising this kind of thinking will result in lawyers skilled in identifying and working with all issues affecting a client’s needs and goals – the kind of lawyers that their client’s truly want and need.
Originally printed in The Legal Intelligencer, December 10, 1997