Authored by Richard L. Stroup
The art of litigation is akin to the art of living. For the litigation lawyer to successfully advocate a client's cause, the lawyer must take every talent learned through life and apply it to the specific circumstances of the case. Lessons learned during kindergarten are as applicable as lessons learned in undergraduate, graduate, or law school. The daily experiences of living, playing, competing, and sharing are as important as the knowledge of the law and experience in court. The art of litigation involves the artful combination of intelligence, knowledge, empathy, emotion, and communication. Like all art, it requires unbridled love—of the law, justice, people, causes, learning, knowledge, writing, and debate. The art of litigation requires the full application of the litigation lawyer's head and heart.
The Role of the Litigation Lawyer
The role of a litigation lawyer is to provide value to a client by solving the problem or problems that led to the disputes in litigation. At first glance, the role seems clear and simple: convince the jury or the court to rule in the client's favor, and any appellate court to affirm, so the client "wins." However, the role of a litigation lawyer is seldom simple. In almost every case, the litigation lawyer has several roles; the roles vary at different stages of the case; and the litigation lawyer must often fulfill several roles at the same time. One or a few of the roles may become most critical to the successful resolution of a given case. Successful litigation lawyers are aware of the various roles and have the wisdom to apply the correct roles at the correct times.
During the early stages of a case, the litigation lawyer must be a student and a supportive counsel and friend. The lawyer must consult with the client with an open mind and heart, to learn what facts and emotions are behind the disputes and how the disputes affect the client or the client's business. At this stage, the litigation lawyer must listen carefully, draw out the details, and learn as much as possible about the conflict. The litigation lawyer should learn how the client believes the disputed problem can or should be resolved, understand why the client believes so, and sympathize with the client's views and analysis. But the litigation lawyer should also recognize that the solution to the problems and the best resolution of the case might prove to be different than the client's initial concept. The lawyer should help the client define his or her preliminary goals and expectations. Through these early communications, the lawyer should do everything possible to comfort and support the client. The client should feel that the lawyer has accepted the responsibility of worrying about the conflict and solving the client's problems.
As soon as possible, the litigation lawyer—in the role of student and supportive counsel—must gain the client's confidence and trust, so the client will advise the lawyer fully about the case. To be effective, the lawyer must learn about all the relevant circumstances and facts, even those, that in the client's view, are damaging to his case, or painfully embarrassing. While achieving these goals is difficult, it is critical to the success of a case. In every case, the litigation lawyer will be forced by his adversary, or by the court, long before trial, to define the client's allegations, positions, and claims for relief. Unless the lawyer knows about all aspects of the case, including the good and the bad, he or she cannot select the best available causes of action, define the issues to be tried, or develop a theory of the case that will position it most favorably. Even the most brilliantly planned case will fall apart if the lawyer's opponent, or even the lawyer, later discovers critical conflicting facts. Explaining inconsistencies and changing positions as a case proceeds destroys credibility and often irreparably damages the client's position. Therefore, the litigation lawyer must succeed in the role of student and supportive counsel, and learn all the facts the client can provide.
From early in the case to the end, the litigation lawyer must be a teacher and an objective counsel. In this role, the lawyer must help the client understand the litigation process and objectively review the case and the realities of litigation. Those realities include:
the legal expenses that will be incurred as the case proceeds;
the potential remedies the law permits;
the scope and effect of discovery;
the potential need to take discovery from third parties such as friends and customers;
the possible effects the pending lawsuit might have on the market and customers;
the internal costs (in the form of personal participation and lost opportunities) the client will incur; and
the fact that third parties (judges and juries) with limited knowledge and expertise in the client's business will decide the client's future.
The lawyer must identify the elements of proof necessary to establish the client's causes of actions, or defenses. The client should learn what party carries the burden of proof. The lawyer must teach the client what issues will be resolved by the judge, the jury, or an appellate court. The lawyer should explain how long the litigation might take and how the disputes will be decided.
As an objective counsel, the lawyer should explain and acknowledge that, while the outcome may be predictable within some broad ranges, no lawyer can predict the ultimate result of a litigation with certainty. Cases are seldom black or white. The client should understand that regardless of how well the case is tried, the trial judge, the jury, and the appellate court will never understand the facts, the disputed issues, or the significance of the dispute as well as the client and the opposing party. Moreover, judges and juries make mistakes. Given these realities, the lawyer should advise the client of alternative ways to resolve a dispute, including settlement conferences between principles and mediations or arbitrations before experts in the disputed field. Effectiveness in the role of teacher and objective counsel is a hallmark of an excellent litigation lawyer, because it protects the client from taking unacceptable or unreasonable risks, or spending more resources than the conflict merits.
From start to finish, the litigation lawyer must serve the role of the client's champion and put the client and the client's interests first. The litigation lawyer must fight for the client in every communication with a third party, be it the opponent or a judge, or a jury. But the lawyer must do so in a manner that strategically fits with the facts of the case and the controlling law. The lawyer should never overstate or bend the truth, as doing so weakens the client's case. The lawyer should collect and verify the facts and thoroughly study the law until he or she truly understands all of the relevant facts and issues in the case and knows how the facts and law can be applied to serve the client's best interests. Only then can the lawyer fully champion the client's cause.
In the role of a champion, the lawyer must have an open mind and consider not only the readily apparent applicable law and issues, but also other options, remedies, and defenses that might apply to the case. Through this process, the lawyer will increase the opportunity for his or her client to prevail. When the client is the plaintiff, the lawyer must consider all potentially available causes of actions and remedies, and all potential forums. Then, the lawyer must develop a strategy and theory of the case that places the client in the best position to win, with the greatest potential reward. When the client is the defendant, the lawyer must consider and develop all potential defenses and look for causes of action and claims for relief that can be asserted against the plaintiff. Whether representing the plaintiff or the defendant, the litigation lawyer must develop a theory of the case that will equitably appeal to the judge and jury.
The litigation lawyer must serve in the role of a detective and investigator. In that process, the litigation lawyer must question everything he or she is told—by the client, the opponent, and third parties—and every material document in the case. This questioning must continue until the lawyer is satisfied that the relevant facts are accurate and unassailable. The lawyer must discover and apply effective procedures to collect and review the relevant facts and documents, and identify the necessary witnesses, consultants, and experts. Whenever possible, the lawyer should use fact-finding techniques that lead to the prompt and efficient collection of information and materials without formal discovery. Such early and relatively inexpensive investigations often lead to the early discovery of information and materials that will win the case or force a favorable settlement. The lawyer should judiciously use formal discovery to complete the information gathering and learn of the contentions and knowledge of the adversary.
As the case proceeds, and information and documents are gathered, the litigation lawyer must constantly reassess and revise the case strategy—and, if necessary, the theory of the case—to meet the changing facts. The litigation lawyer must carefully follow and react to changes in the law. In the role of detective and investigator, the litigation lawyer must periodically consult with the client and review the case and the case strategy, redefining the client's strategies and goals when necessary.
The litigation lawyer must serve in the role of a consultant or board member, helping the client review the issues in conflict and weigh the potential risks and rewards associated with the case. The lawyer should assist the client in defining the likely or potential outcomes of the litigation and determining whether those outcomes merit the risks and expenses associated with litigation. The litigation lawyer must recognize that not every case should go to trial and that certain cases should be settled, if at all possible. The litigation lawyer should understand that, as a case proceeds, its value to the client may change. The lawyer should periodically reevaluate the case strategy and, when appropriate, narrow the case or limit effort and expenses to match the case's value. The lawyer should know how and when to move a case toward settlement if the client favors a negotiated resolution of the dispute.
The litigation lawyer must often serve in the role of a negotiator. Throughout a litigation, a lawyer must negotiate with the adversary and the court to find acceptable compromises that are consistent with the client's long-term goals. Always demanding the lawyer's or the client's way will only add to the expenses of the case, lose the confidence and respect of the courts, and usually lead to compromises made by the court or jury, in any event. Seldom will a judge or jury decide a case completely for one party or the other. The lawyer will also need to negotiate with the client and the members of the litigation team, as compromise is essential to achieve efficiency and goodwill. While a lawyer as a good negotiator must say no at times, a skilled lawyer-negotiator can usually find an acceptable yes.
When the goal of a litigation is to settle, the litigation lawyer should confidently pursue the case by advising his or her adversary of the factual and legal strengths of the client's position, the risks the case presents to the adversary, the costs of litigation, and the willingness of the client to protect his or her rights through every possible motion, trial, and appeal. In the negotiation process, the litigation lawyer must artfully consider and then select from a wide variety of procedures to pursue settlement, including correspondence, telephone or personal conferences with the opposing counsel, negotiations between the principals, settlement conferences before judges or magistrates, mediations before an expert, minitrials, and binding or nonbinding arbitrations. A skillful lawyer will recognize that different disputes are best resolved through different approaches.
If the case is one that should or must be tried, the litigation lawyer must serve in the role of trial lawyer. The trial lawyer must prepare the client and the entire litigation team for trial. The trial lawyer must focus exclusively on the trial and the task of convincing the decision-maker to see the justice of the client's position and the equity of granting the client the relief sought. The trial lawyer must try the case so a victory will be affirmed, yet preserve all rights to appeal, should the case be lost. The lawyer must believe in and be committed to the client's cause and convincingly and passionately fight for the client. The lawyer should consistently and constantly champion the client's interests to each judge, juror, witness, law clerk, reporter, and opponent in the courtroom. When trying the case, the litigation lawyer must have control over himself or herself and the entire legal team. And the lawyer must be courteous, respectful, and fair. The trial lawyer must always be truthful and candid, taking every possible step to establish the credibility of the client's cause and witnesses. The lawyer must be an honorable officer of the court, and not put on any airs. At trial, the lawyer must be a student, a counselor, a champion, an investigator, a teacher, a negotiator, and an advocate, in a balanced combination that best explains the client's case, the justice of the client's position, the equities of the relief requested, and the factual and legal support for the client's cause.
Succeeding as a Litigation Lawyer
Succeeding as a litigation lawyer translates into providing value and winning, but not simply at trial or on appeal. Before a lawyer can provide any value to a client, the lawyer must first win the client's confidence so that the client will hire the lawyer. In most cases, the successful litigation lawyer provides value by effectively and efficiently resolving a case well before trial. Often, the lawyer must win at least some preliminary motions, before the lawyer can achieve the client's goals. At times, the lawyer must win the case at trial or on appeal. Throughout any litigation, the lawyer will be faced with countless disputes that must be won through an outright victory or a judiciously crafted compromise.
There is no magic skill or technique, or trait that dictates success in the roles of a litigation lawyer. Yet it cannot be disputed that certain litigation lawyers are more successful in courts, in settlement conferences, and in the client's boardrooms or kitchens. Some lawyers convince a client to give them the opportunity to represent the client in a litigation, and others do not. Certain lawyers can convince the opponent to settle the case on favorable terms, while others cannot. In theory, an objective and full understanding of the lawyer's abilities leads the client to hire, or not hire, a lawyer, but that is seldom the case. Few clients have the ability to fully understand and weigh the relative legal talents of a lawyer, but all routinely decide who they like and trust. Similarly, in theory, the facts of a case dictate success in a trial, but in reality an exceptional lawyer will uncover and understand and apply facts that another lawyer will never learn about or consider relevant. A successful lawyer will find and rely on law that the less successful lawyer never even considers. Even if lawyers were limited to the identical set of facts and law, the results of a case would often differ, depending on which facts a lawyer decided to apply and how the lawyer wove those facts into a theory and presentation of the case. So what leads to success?
While not dictated, success generally comes to a lawyer who is comfortable in each of the roles outlined above, and who can artistically apply his or her talents to a wide variety of cases and circumstances. The successful litigation lawyer must truly care for the client and win the client's confidence, both emotionally and objectively. The successful lawyer must plead for the client's cause through tireless effort and wise strategy, taking every reasonable step to protect the client's interests and rights. The litigation lawyer must like his or her client, be likeable, enjoy a good fight, and have a burning desire to win. The successful lawyer wants to win every client, every negotiation, every dispute, every motion, every objection, every trial, and every appeal. The successful litigation lawyer hates to lose, and yet has the wisdom to accept compromises or settle cases when the risks are greater than the rewards.
To be successful, a litigation lawyer needs to be gifted, while also thankful for and humbled by those gifts. By hard and organized work, the lawyer must be willing to apply the gifts he or she has received through genetics, life, and experience. The lawyer must be physically and mentally healthy and strong in order to withstand the rigors of litigation, particularly trial. The lawyer must like people and be liked by people. The lawyer must have a sense of fairness that is in tune with a wide range of persons and philosophies and must be able to connect with persons from all walks of life.
The successful litigation lawyer must be a wise, kind, and caring general of his or her client's case, responsible for all aspects of the case and instilling confidence in the entire litigation team. While the lawyer should command the case and deserve respect and loyalty, the lawyer should also be willing to place his or her personal interests dead last, and always put the client's first. The lawyer, as the general, must also seek and consider the comments and suggestions of the entire team, while accepting the responsibility to make the final call.
A successful litigation lawyer must master and understand the case and the complexities of the relevant facts, emotions, law, and procedure. In highly complex or technical litigations, the litigation lawyer must have a high level of intelligence to understand the issues and the case as a whole. In any case, mastering the case is just the start. Once the litigation lawyer understands the case and its many potential issues, the lawyer must then have the wisdom and courage to simplify and focus the case so the evidence and issues can be clearly understood by the client, judge, and jury.
A successful litigation lawyer has the ability and the desire to see the case from the perspectives of everyone involved, from the client, to the opponent, to the litigation team, to the court reporters, to the judge's law clerks, to the judge, to the jury. Through this process, the litigation lawyer must develop a story and find a theory of the case that he or she passionately believes and embraces. That alone, however, is not enough. The lawyer must then test the story and theory with others to make sure the story and theory are accepted as reasonable and fair.
The litigation lawyer should be a revered teacher who has the ability to share knowledge and insights, while leaving the client and the decision maker fully respected as equals or superiors. To talk down to the client or decision-maker is to invite disaster and failure. Similarly, the successful litigation lawyer must instill in the decision-maker confidence that the decision-maker can fairly and justly decide the case. To even suggest that the decision-maker will never be able to understand and decide the case based on the facts and the law is to reduce the case to a gamble, or worse. If the lawyer convinces the decision-maker that he or she cannot truly understand or fairly decide the case, the resolution of the case will be a game of chance depending on something other than the merits. If the lawyer's opposing counsel convinces the decision-maker that he or she can understand and decide the case, as explained by that counsel, the risks become greater.
To be successful, a litigation lawyer needs to know when to say no, when to admit points in favor of the opposition, and when to passionately pursue the points that can win the case, whether during settlement negotiations, or at trial, or on appeal. The most successful litigation lawyers have intellectual skills, people skills, a love of learning, a high level of respect for others, a willingness to work hard and long, and a passionate desire to win.
In summary, a successful litigation lawyer will first convince the client that the lawyer is the best choice to represent the client, and a choice that the person hiring the lawyer can defend, particularly if the case goes badly. The lawyer will then serve in the various roles of a litigation lawyer as the case proceeds. At the end, a successful lawyer will win the cases that can be won, drive to settlement cases that should and can be settled, and prepare and passionately present the best possible evidence and theory of the case in those cases that must be tried, even if they are lost.
Challenges of Litigation
Litigation presents the litigation lawyer with endless challenges.
One of the most challenging aspects of litigation is gaining the confidence of everyone involved in the litigation. Unless the litigation lawyer gains the confidence of the client, the lawyer will not learn all of the important facts of the case or the most critical emotional factors that led to the conflict and that must be addressed to resolve it. Without gaining the confidence of all members of the litigation team, efficiency and effectiveness will fall far short of potential. Unless the litigation lawyer gains the confidence of his or her opponent, the costs of litigation will increase dramatically and the judges and decision-makers will be less able to understand and resolve the true issues in dispute. Finally, the litigation lawyer must gain confidence of the decision-maker. A litigation lawyer who fails to gain the confidence of the court and the jury will lose every close case, and even many that favor the client considerably.
Another challenging part of litigation is educating the client about the realities of litigation in general, and about the specifics of the client's case. This challenge requires that the litigation lawyer keep a very open and candid line of communication with the client throughout the litigation. The litigation lawyer must be fully supportive of the client and his or her cause, while carefully teaching the client about the painful and potentially damaging aspects of litigation. The lawyer must meet the challenge of explaining why and how the case can and should be won, while candidly assessing the points in the opposition's favor and the possibility that the case can be lost. The litigation lawyer must ultimately be able to weigh and consider the facts and controlling law, and the unknowns of a case, with the eyes, mind, and prejudices of the judge, the jury, and the appellate courts, rather than simply those of the client or the lawyer. The litigation lawyer must be willing to advise the client when a case is more likely to be lost than won. The challenge is to constantly weigh the risks, rewards, and expenses of a litigation, and counsel the client through the process, always putting the client first.
A challenge of litigation is staying with and mastering the details of the case, regardless of the effort, or even boredom, involved. Litigation is not all fun. Rather, it involves a huge amount of tedious work. Before a case is fully resolved, the newness and excitement of the case will diminish. Mastery of the factual and legal details of a case requires dedication and sacrifice. The lawyer must review and carefully study all important documents and interview and/or depose each witness, when that is practicable. The lawyer must interview, select, and work with consultants and experts. After all this effort, the evidence as a whole must be organized and outlined, as must the entire case. The law, the local rules, and the court's procedures and peculiarities must be mastered. By trial, the lawyer must understand not only the facts of the case, but also how the relevant law and emotions will apply to the facts.
Writing clear and persuasive briefs in support of motions, pleadings, or settlement positions is very challenging and critical. Most cases are won or lost before trial. At times, cases can be resolved at a very early stage of the litigation, if the briefs clearly explain the facts, issues, and law that demand such a resolution. Many cases can be won through dispositive motions, such as motions to dismiss or motions for summary judgment. The litigation lawyer can significantly narrow the disputed issues in a case, or limit potential damages or legal expenses, through appropriate motions, persuasively briefed. Well-written motions and briefs can successfully limit the evidence to be submitted to the decision-maker. Even cases lost to the jury, or the judge, can be turned around with well-written briefs. On the other hand briefs that are poorly organized or written can adversely affect the entire case. For a jury trial, the preparation of the verdict form to be given to the jury is a critical challenge. The parties, and ultimately the court, have considerable discretion in drafting and opposing different verdict forms, from a general verdict form that simply resolves who wins, to special verdict forms or verdict forms with special interrogatories that require that the jury answer more specific questions. The form used in a case can significantly affect the manner in which the jury decides a case, as well as the review of the jury's verdict by the trial and appellate courts. It is a challenge to decide what verdict form to propose for a given case, how to respond to an adversary's proposed form, and how to convince the trial court to adopt a form that best favors the client. The same is true of the legal instructions to be given to the jury.
Other challenging aspects of litigation include:
convincing potential witnesses to testify;
preparing your client's witnesses to be deposed and defending their depositions;
researching the law to find new causes for relief or to overcome seemingly defeating precedent;
developing a theory of the case that fits all the facts and the law;
selecting the best and most credible fact and expert witnesses and lines of testimony;
preparing witnesses to testify at trial;
developing convincing demonstrative exhibits;
reducing a case to its essentials; and
discarding discovery, claims, defenses, or arguments that are unnecessary or counterproductive.
Each case, client, opponent, opposing counsel, witness, expert, mediator, judge, and jury presents the litigation lawyer with an endless series of challenges.
The final challenge is educating the decision-maker—the client, the opponent, the judge, the jury, and the appellate court—about the essentials of the case and convincing each to conclude that the fair and just resolution is the resolution the lawyer proposes.
Common Issues in Litigations
Regardless of the nature of a case, or whether the litigation lawyer is representing a plaintiff or a defendant, litigations have a number of common issues that a litigation lawyer must understand and consider. The litigation lawyer must prepare the case for trial, or settlement, with these common realities in mind.
Reduced to the essentials, most litigations are more alike, than dissimilar. Each litigation results from a dispute that the parties have been unable to resolve themselves, and each case thus brings some emotion to the dispute, at least in the form of dislike, distrust, and fear of the unknown. Each case is one where credibility of the parties and their attorneys will be tested. Ultimately, each case will be decided by persons who have less expertise, experience, or understanding of the subject matter of the case than do the parties. And these deciding persons will have limited time, energy, and resources to resolve the dispute. In each case, although these decision-makers will most often try to make the right and just decision, they will have prejudices, as each human does. The client, the opponent, and the opposing counsel will also bring prejudices to the case that can adversely affect the process or conclusion of a litigation, unless the prejudices are identified and addressed.
In each litigation, the litigation lawyer must present evidence to prove the legal elements of the client's causes of action or defenses and must convince a human-decision maker to rule in the client's favor. To prevail, the litigation lawyer must present an equitable case and request for relief, law to support the case and request, a good story, documents that fit the story, credible witnesses, and understandable and persuasive exhibits. To win, the litigation lawyer needs a fair judge, an understandable theme, credible witnesses, good demonstratives, and an artful presentation.
There are a host of other common aspects in most litigations. In each case the litigation lawyer must:
- learn about the dispute and the underlying facts;
- identify the potential causes of action or defenses;
- define the controlling law and its application to the facts;
- identify and define the available legal remedies and assess their value;
- estimate the potential costs and expenses of the litigation;
- consider the potential effects of the litigation on the client;
- consider the possible reactions of the opponent to a litigation;
- collect the necessary facts and evidence;
- decide whether to file suit or initially pursue the client's rights through negotiations;
- select the best causes of actions or defenses;
- decide whether to settle or try the case;
- select the best documents and witnesses for trial;
- find and present the best experts;
- prepare demonstrative exhibits;
- simplify the case to its persuasive essentials; and
- develop responses to the opponent's positions.
These common steps are essential in almost all cases that find their way to trial.
Almost each case brings disputed issues of fact that the litigation lawyer must resolve. Documents will be interpreted differently by the plaintiff and the defendant, and witnesses will recall the circumstances surrounding the dispute differently. Frequently, a witness will remember facts differently than an objective observer, if present, would conclude were valid, although the witnesses is not necessarily intentionally lying. A witness, as a human being, often mentally filters reality or selectively remembers things the way he or she wishes they had occurred, although in fact they did not. On some occasions, a witness may out and out intentionally lie. On occasion, documents are altered. Ultimately, the judge or jury responsible to find the facts must determine who to believe and what most likely occurred in actuality. While a litigation lawyer can and must help the decision-maker in this process, the lawyer cannot accurately predict precisely what document, witness, or story will seem more credible and reasonable to the judge or jury. The more the lawyer's theory of the case depends on the resolution of disputed issues of fact, the less predictable the outcome is.
In each case, the issues in dispute, at least in theory, will be determined based on legal principles the fact finder, the trial, and appellate courts are to follow. Yet the controlling law, and its application to the facts, is seldom as clear as the client, or even the lawyer, would expect. More often than not, the law is flexible with respect to one or several material issues—substantive, or evidentiary, or procedural. Thus, even if the facts of a case were absolutely undisputable, the resolution of the case at the trial level would still be uncertain. In most every case, factual issues are disputed, and often the decision-maker must decide mixed questions of law and fact. Given this, the realities of human decision making and the applicable legal standards of review, once the fact finder decides disputed factual or mixed factual and legal issues, the post-trial review of the decision-maker's conclusion, in many cases, is often extremely limited.
A common aspect of almost every case is that the outcome is never assured. The litigation lawyer therefore should use all reasonable and affordable techniques to evaluate a case and assist the client in weighing the potential risks and rewards the case presents. The lawyer should review the merits and emotional aspects of a case with the local counsel, early and often. Such reviews will provide an objective overview of the case, from a perspective closer to that of the judge and jury. Another excellent way of gaining perspective is for the litigation lawyer to present the case, or aspects of the case, to secretaries, legal assistants, court reporters, clients, consultants, and experts as the case proceeds. The lawyer should tell them the story and gain their reaction—or have them read your briefs to learn how understandable your position and arguments are, and how they are received. Through this relatively inexpensive procedure, the lawyer will learn much about the strengths and weaknesses of a case, and therefore craft a better presentation.
When the value of a case permits, additional options are available and should be considered. Early and frequent consultation with a jury consultant and/or focus groups can greatly assist the lawyer in evaluating the case and developing an effective and persuasive theory of the case. Analytical evaluation techniques, such as decision theory and other forms of quantitative analysis, are useful to some degree. Analytical techniques however, are not necessarily accurate predictors. For example, when the case raises a wealth of complex issues, causes of action, and defenses, such analytical tools become more suspect. The mere fact that the plaintiff can dream up numerous causes of action, or that the defendant can present defense after defense, hardly establishes that either will win. Better predictors, either of victory or of the better theories to present in a case, are closer to mirror images of the actual decision-making process that will be applied, if the case is tried. Formal or informal mock presentations of the case to one or several mock judges or mock juries will tell the litigation lawyer and his or her client much about the case and its potential for success or failure. Submitting the case to a pre-trial mediation of any type will also allow the litigation lawyer and his or her client to assess the case and learn how his adversary views the case. Contention interrogatories, 30(b)(96) depositions on the issues, and dispositive motions also allow the lawyer and client to better appreciate and evaluate the issues in the case.
Despite the similar characteristics of all litigations, each case brings to the lawyer a unique set of circumstances to which a host of applicable legal principles must be artfully applied. No case is the same, and each case requires a different approach and theory in order to be pursued and tried most effectively. Litigation is an art. There is no simple or right way to approach each case—no magical solution that can be applied universally. There are, however, certain general principles that can be applied, depending on whether the litigation lawyer is representing the plaintiff or the defendant.
Steps in the Litigation Process: Representing the Plaintiff
When a litigation lawyer represents a plaintiff, the lawyer has the opportunity to collect the facts and develop a case and strategy before being subjected to pressures defined by the adversary or the court. In some cases, the lawyer has months to consider and reflect on the case, while in others, where injury is irreparable, the lawyer must act quickly. In all such cases, the lawyer has the advantage of controlling the timing, and to some degree the pace of the litigation, and he or she should always exercise that advantage.
The first step in a plaintiff's case is to meet with the client for the purposes of defining the conflict, identifying the injuries and damages, and defining the client's goals. The lawyer can then research the relevant law, identify the potential causes of action, and develop a preliminary recommendation to the client. By discussing the preliminary recommendation with the client, the lawyer can then compare the known facts with the elements of proof and discuss the risks, rewards, and expenses of the potential legal actions. If one or several causes of action appear to be productive and valuable to the client, the lawyer can then consider the potential forums where a litigation can be pursued, and weigh the strengths and weaknesses of each.
If the client decides to pursue a legal action, the lawyer should then build a litigation team and prepare the case for litigation before the suit is filed. he team members should visit the client and identify and interview the most relevant witnesses. They should collect and review the most relevant documents. If time permits, the team should perform factual investigations of the opponent and any material third parties before the case is filed. Preferably, the team should identify and review the best documents so it can build a preliminary theory of the case based primarily on the documents.
Before the case it filed, the litigation lawyer should identify each element that must be proven and list what evidence is available, or must be later established, to meet the plaintiff's burden. The lawyer should develop a preliminary damage theory, assess the potential extent of damages, and define the monetary and equitable relief sought. The team should outline the possible strategic approaches, and measure the costs of those potential approaches against the value of the case. The litigation lawyer must identify and consider the defendant's possible reactions to a lawsuit, and advise the client of the potential counterclaims or separate actions. Preferably, the team will consult with experts and perhaps even hire and work with expert witnesses before the case is filed. Most preferably, the litigation lawyer and his or her team will develop a written outline of the elements of proof, the theory of the case, and a strategic plan regarding public relations, discovery, motion practice, pre-trial, and trial. If the client's goal is to resolve the dispute through a business solution, the pre-filing preparation should include a strategic plan to move the case toward settlement, perhaps before a particular mediator or dispute resolution forum.
Before the litigation lawyer initiates a legal action, the lawyer often must find and hire a knowledgeable local counsel in the jurisdiction where the lawsuit is to be brought. The local counsel must be highly respected in and familiar with the court. The local counsel must know the general procedures followed by the court, along with the eccentricities of the various individual judges and clerks. It is often advisable to find and hire a local counsel who is an excellent lawyer and knows everything about the court, but little about the factual or legal specifics of the case. Such a local counsel will be an excellent resource to review briefs and arguments and strategies, because that local counsel will in many respects be a mirror image of the court that will decide the motions and control, if not decide, the case.
When the circumstances and value of a case permit, the litigation lawyer and his or her team should prepare the case for trial, or for a formal settlement conference, before the defendant is served, or even knows that a case is coming. Experts can be identified, hired, and interviewed. The team can draft memos on complex and controlling legal principles and on the chronology of most relevant events. Draft verdict forms and jury instructions can be prepared to clearly define to the client and the lawyer what issues will be decided and how they will be viewed by the jury. The lawyer can also outline a rough draft of his or her closing argument to the jury, to allow the client, the litigation team, and the lawyer to see the forest, and not simply the trees. Preferably, the litigation team can draft a first set of discovery requests before the action is filed.
Once the case is filed, the litigation lawyer and the litigation team can focus on discovery from the opponent and third parties, to fill in the added proof needed. The lawyer can seek as early a trial as the court will permit and place constant pressure on the adversary. The lawyer can perform investigations and take discovery to complete the proofs. The lawyer can pursue contention interrogatories and discovery to learn about the adversary's positions and fix the adversary's positions and testimony in concrete. Throughout this process, the lawyer should attempt to prove the case, whenever possible, through the documents and testimony of the adversary. The lawyer should rely on his or her client sparingly.
As the litigation proceeds, the lawyer and his or her team should judiciously seek the assistance of the court in resolving the case in the client's favor. The lawyer should move to compel discovery when the defendant is recalcitrant. The lawyer should move for summary judgment or partial summary judgments when that fits within the strategy and theory of the case. Well before trial, the lawyer should prepare demonstratives, refine the closing, draft the opening, and outline the trial. If the case is to be tried before a jury, the lawyer should prepare draft jury instructions, a draft verdict form, and a pre-trial brief to assist the court in the trial. The pre-trial brief should overview the case, identify the issues, and explain what issues are for the court and what issues are for the jury. Demonstrative exhibits and electronic visuals should be drafted, reviewed, and refined. The lawyer should create trial notebooks for the court and the jury. Before the trial, the litigation lawyer should file motions in limine to limit the introduction of irrelevant or prejudicial evidence. The lawyer should prepare bench memoranda on important evidentiary issues, as well as draft motions for judgment as a matter of law. These drafts can then be refined and filed, or used as an outline for oral motions, as the trial proceeds. By the time the lawyer travels to the place of trial, the entire case and litigation team should be fully organized and prepared to try the case.
Steps in the Litigation Process: Representing the Defendant
When a litigation lawyer defends a client. the lawyer must act quickly to assess the case and develop a preliminary strategy. The lawyer should first carefully study the complaint, research the law and the court procedures, and learn about the relevant facts. The lawyer should identify the elements of the causes of action, the burdens of proof, and the evidence of record. The lawyer should determine whether additional factual background information is readily available from public sources, including the Internet and computer databases, to gain a better insight into the dispute. The lawyer should identify and hire the best local counsel available, and learn as much as he or she can about the court, the local procedures, and the judge responsible for the case. The lawyer should identify potential defenses that might be available.
Armed with this background material, the litigation lawyer should meet with the client and learn how the dispute arose, the relationships between the parties, the potential damages and injuries, and the potential causes of action and/or counterclaims the client might have. The lawyer and client should address the realities of the case and define the goals of the client. The lawyer should immediately collect relevant documents and identify and promptly interview persons having knowledge of relevant facts and background. At the same time, the litigation lawyer should perform economically acceptable investigations that do not require formal discovery. The lawyer should consult with experts on central issues of the case early and often.
The lawyer must look for leverage and do everything possible to even the playing field. Courts in the United States, as a general rule, are very hesitant to grant attorneys fees to a prevailing party, so a plaintiff that has filed an action and is seeking a substantial monetary recovery often has little motivation to resolve a case early. Filing a valid counterclaim or a separate action often can change the risks of litigation considerably. If the plaintiff's case is so weak that it should never have been brought, or when discovered facts or law establish that the case is without merit, the litigation lawyer should in correspondence or motions make that factually and legally clear to the plaintiff, to thereby set up the plaintiff for sanctions or an award of fees.
Through this early process of collecting relevant facts and researching the law, the lawyer can define the potential damages and risks and thus assess the case's value. The lawyer must also estimate the costs of litigation and how soon the case will likely be tried, decided, and appealed. The lawyer can then develop a preliminary strategy and work closely with the client to review the case and its strengths and weaknesses. He or she must advise the client of the objective realities of the case early, and revise and remind the client of these often.
The lawyer must pursue discovery thoroughly, but in a reasonable manner that fits the case and the risks involved. Third-party subpoenas should be used early to find and develop critical evidence. Once the case enters the discovery and pre-trial phases, the litigation lawyer should follow similar strategies and procedures as does a plaintiff's lawyer. The lawyer should study the documents, hire the best consultants and experts that are available, and select witnesses that are likable and credible. He or she must develop an early theory of the case and perfect it as events develop.
Whenever possible, the lawyer representing a defendant should try to win the case before it goes to trial. Frequently, cases can be won through motions to dismiss or motions for summary judgment. If the case goes to trial, the lawyer must try the case to win both at trial and on appeal. If a case presents more risks or expenses than value, the litigation lawyer should apply all reasonable efforts and strategies to settle the case.
Steps in the Negotiation Process
Negotiating a settlement, or partial settlement, of litigated disputes is an art form unto itself. There is no simple rule or process that applies.
The litigation lawyer must first consider when settlement discussions should be initiated. Some cases can and should be settled promptly, perhaps even before an answer is filed. Other cases require that the parties exchange some formal or informal discovery before the case can be settled. Others can settle only after a court rules on certain issues, or when one or both parties have filed dispositive motions that identify and raise the risks. Some cases settle only after one or both parties tire of paying legal expenses instead of applying their resources to their businesses or lives. Many cases settle days before the trial, or on the courthouse steps, or after a few days trial. The litigation lawyer must sense when it is appropriate to initiate and pursue settlement discussions.
The litigation lawyer must also determine who will participate in the settlement discussions and who will lead the process. Normally, a member of the litigation team, often the lead trial attorney, is a good candidate, but not always. If the case is close to trial, the resources and energy of the lead trial attorney, and perhaps the entire litigation team, should not be diverted to settlement discussions. Instead, another attorney having substantial expertise and experience in negotiations is likely a better candidate. That person must be educated by the trial team. If the settlement discussions occur earlier in the case, a member of the trial team likely should be involved. Beyond that, the litigation lawyer must determine who else should participate in the settlement negotiations to increase the prospects for success. In certain circumstances, the case can be most easily settled through negotiations between litigation counsel alone. Those negotiations can be in the form of correspondence, telephone conferences, meetings between counsel, or a combination of these. More often, principals from the respective clients with settlement authority should attend a settlement conference with their respective counsel. In many circumstances, a third person, such as a judge, magistrate, mediator, or expert must also be a participant, to permit any chance for success. When parties are in the heat of litigation, they often need such a third party to provide an objective view of the case and help them, often through shuttle diplomacy, to see why and how a case can be settled.
Before settlement negotiations begin, the lawyer must define the potential risks, remedies, and expenses of the case and consult with the client. In most cases, an objective but directed written summary of the issues and economic realities of a case should be prepared and given to the opponent to force the opponent to see the case from an economic perspective. In appropriate cases, a brief overview of significant evidence or facts, along with controlling law, are included in such written materials. Such written materials must be drafted to objectively outline the significant aspects of the case, without pointing fingers or otherwise adding more emotion and distrust to the dispute. These materials should be directed toward the principal of the opponent attending the settlement, rather than the opponent's counsel. That is the person who must be convinced to settle. Settlement proceedings give the litigation lawyer and the client a unique opportunity to educate the opponent about the case, while minimizing any filtering by the opponent's attorneys.
Before a settlement meeting takes place, the litigation lawyer and the client must discuss and develop a game plan. They should consider the various potential settlements that might be acceptable and be creative in the process, considering all aspects of the case, including the opponent's perceived positions. They must identify the various terms and conditions of settlements that would be acceptable, and develop a strategy that would enhance the movement toward one or more of the acceptable settlements. Preferably, the lawyer should draft and bring to the settlement meeting draft settlement agreements, or written principles of agreement. Such written drafts clarify the goals and potentially acceptable resolutions and allow the creation of prompt written settlement papers, if the negotiations are successful.
Frequently, the opportunity to settle a case increases appreciably, if one or more third parties are included in the settlement conference. Parties are more respectful and open, if an effective third party—such as a judge, magistrate, mediator, or expert—assists the parties in reviewing the case and the business realities of a dispute. A litigation lawyer should consider all of the available options and place the parties in an atmosphere that is most conducive to the resolution of the case. The lawyer must also take steps to ensure that the selected third party is properly educated to understand the issues in the case. Written briefs and video presentations are often essential.
During the settlement discussions, the lawyer must be courteous and respectful at all times. In some cases, it is beneficial to ask the opponent to outline his or her views and explain why the case is in litigation, from his or her perspective. The litigation lawyer usually benefits his or her client by acknowledging the opponent's position and then explaining the client's view and position. The lawyer should bring an open mind, ready to look for business solutions. During the discussions, the lawyer should emphasize objective criteria such as costs, legal expenses, lost opportunities, and remedies. The lawyer should strive to convince the opponent to talk, and then listen and learn.
Any settlement should be placed in writing before the lawyer leaves. A complete final agreement is preferable, but at the very least the lawyer should not leave until principles of settlement, stating the material terms of the settlement, have been written and signed by the principals, along with a general statement that it is the intention of the parties to settle the dispute according to the stated principles.
Keys to Success
To someone who is or is considering becoming a litigation lawyer, I offer the following:
Credibility is the key: The litigation lawyer's, his client's, his witnesses' and the case's credibility is of critical importance at every stage of a case. The lawyer must maintain credibility to convince the client to give him or her the opportunity to represent the client and to convince the jury and trial court and appellate court that the client fairly deserves to prevail. The decision-makers may never understand the intricacies of the facts or law, but they know how to judge credibility and disregard those who appear to be dishonest, misleading, or selective. The loss of credibility often leads to the loss of the case. The litigation lawyer should even establish credibility with the opposing counsel and the opponent, to minimize legal fees and increase the prospect of finding a business resolution of a dispute, when settlement makes sense. The litigation lawyer must be honest and never bend the truth or play games. A litigation lawyer should admit what cannot reasonably be disputed. A lawyer is an officer of the court and must always conduct himself or herself at the highest ethical levels and develop a case that permits him or her to be credible throughout.
Remember that the lawyer's job is to assist the court, jury, and appellate court in understanding the facts and law, and making the just decision. The reality in a litigation is that someone other than the lawyers will have to agonize over the law and the facts, determine who to believe, and decide who should win and what remedies should be awarded. That someone needs help to make that decision and normally has limited resources—be it time, expertise, education, energy, concern, or intelligence—with which to make the right decision. A lawyer who forcefully advocates that the decision-maker see things the lawyer's way, rather than educating the decision-maker to help him or her understand the case and reach his or her own decision, leaves the decision to chance and might well lose the decision-maker's confidence. The better course is to take all reasonable steps to allow the decision maker to fully understand the relevant facts and how the law applies to those facts. Decision-makers who are helped by the litigation lawyer are more prone to find for themselves the lawyer's proposed solution, the goal of the lawyer and his or her client.
At the start of the case, think of the end. At the very start of a case, the litigation lawyer should consider how that case, if it is tried, will be decided, by whom, and under what law and circumstances. If the case is to be tried before a jury, consider what the verdict form would or should look like, and what the jury instructions will say. For any case, consider what elements must be proved, who carries the burden of proof, and what types and forms of evidence the judge or jury will consider. Consider whether some or all of the issues will be resolved through motions for summary judgment or other motions. Consider the likelihood and strengths of potential motions for judgment as a matter of law. Consider whether the case will likely be appealed, what issues will likely be appealed, and under what standards. By focusing on the end of the case early, the lawyer can better evaluate the case and
prepare the case for settlement or trial.
Immerse yourself in the case; learn everything you can. To serve the client well, the litigation lawyer must learn as much about the factual and legal subject matter of the case as is reasonably possible, given the economic realities of the case. He or she must interview the client fully; keep an open mind; take detailed notes; consult with employees, consultants, and third parties who are knowledgeable about the subject matter; read books; research the Internet; reflect; and read, study, and organize the documents. Once a good understanding of the facts is achieved, consult with others on the case and see if they see things the same, or differently. At that point, the lawyer must go back to the client, explain his or her understanding, and see if he or she is on point, in the ballpark, or lost. While mastering the facts, the lawyer must study the law carefully and thoroughly, develop and test legal theories, and seek the review and counsel of others on the team. This process should be continued throughout the litigation.
Look for a fair result, and then look for law that supports that fair result. The law is amazingly flexible and normally secondary in importance to the facts and fundamental fairness of a case. Quite often the litigation lawyer will develop the most convincing case by first carefully reviewing the facts and circumstances of the case, and developing a fair and just resolution of the case based on the concept of fundamental fairness. When that process is completed, the law will most often provide legal principles and precedent that will allow the litigation lawyer to develop a factual and legal theory of the case that supports the fair result.
When you are outside your local court, find the best local counsel you can. A litigation lawyer must never consider local counsel as a necessary evil that must hired be to comply with court rules or to act as a legal assistant to file, serve, and receive pleadings. Rather, the lawyer should hire the very best and most respected litigation lawyer in the court where his or her case will be tried. That local counsel, and preferably his or her entire firm, should have extensive experience before the court, and the very judge for the case. Preferably, that lawyer should not have expertise in the legal area of the dispute, so he or she can objectively review the case from a distance. The best approach is to find a lawyer who is so busy trying and settling cases, and who is so successful that he or she has no interest in serving as a local counsel and then present the very best plea and argument for that lawyer's assistance. Such a local counsel will provide an invaluable overview of the case and advice regarding the judge and the judge's procedures and local practice. Allow that lawyer to select a younger lawyer, preferably a former law clerk or up-and-coming star, who will assist in the more routine matters. The litigation lawyer must gain the local counsel's perspective of the case and listen very carefully to everything the local counsel is willing to share; allow the local counsel the opportunity to review draft pleadings, with sufficient time to provide substantive comments and suggestions; and bring the local counsel to court, and allow him or her to participate.
Don't forget the remedies—identify and quantify them early. It is easy for a client and lawyer to focus on the liability issues—the causes of actions and defenses—and apply their efforts and energies toward proving they are right and the opponent is wrong. That is well and good, but at the earliest stages of the case, the lawyer must identify and carefully consider what remedies the jury and courts can provide to both parties, and collect information and data to quantify the available remedies then and as the case proceeds. What monetary awards are available (damages, increased damages, costs, fees, or sanctions)? Can the court issue injunctions or orders that are valuable to one party or the other? The client and lawyer must not expend significantly more legal resources and effort than the value of the available remedies justify.
Build your case on documents. Documents are normally more believable than witnesses. Contemporaneous documents made before the conflict arose and kept in the ordinary course of business have no prejudices or selective memories. Decision-makers are familiar with documents and find them more honest and accurate than most witnesses. The documents in a case, when reviewed in chronological, create a skeleton about which a case can be crafted. Documents organized by subject matter, author, or recipient similarly clarify the case and create points in time and subject matter that are as fixed as any facts in a litigation. Documents can be used to convince a witness to tell the truth, or to impeach a witness who does not. The litigation lawyer must know the documents completely and develop a story and theory of the case that fits within these documents.
Use the documents, testimony, and experts of your opponent to support your case, whenever possible. Relying on an opponent's knowledge, understanding, or representations as part of the case is extremely powerful. The lawyer should find opponent's documents that help his or her case and show them to the decision-maker effectively and often. The lawyer should develop lines of testimony with his or her opponent during depositions that support the client's theory of the case and claims for relief, or disprove what the opponent is asserting. In depositions and during trial, it is best to get as many helpful concessions as possible from the opponent's expert and rely on these concessions as proof in the client's favor. A lawyer who can embrace the opponent's documents or testimony as his or her own is well on the way to success.
Recognize that the least persuasive evidence is often the documents and testimony of your client. Your client's witnesses come into the courthouse with a clear prejudice. Worse, those witnesses often feel pressured to perform well for the client, and perhaps bend the truth slightly or have a selective memory. Incredible testimony from a client or a client's employee can significantly damage a case. Therefore, a litigation lawyer must work carefully and thoroughly with the client's witnesses to deal with these realities and obtain as clear and correct and simple testimony as possible. A good rule of thumb is to expect the worst of a client witness in a deposition or a courtroom, rather than to expect that such a witness will win the case. If your client's case will be won or lost based primarily on the testimony of your client and its employees, consider the risks—and settlement—carefully.
Don't ignore the prejudices that a case brings. Each case brings with it prejudices that the litigation lawyer must identify and consider. First, both the plaintiff and the defendant will bring significant prejudices to the litigation, and those prejudices can make the litigation unduly expensive or make settlement more difficult than the objective merits permit. These party prejudices can weaken the case as it is presented to the judge or jury. The witnesses, jurors, and judges also bring with them their own personal prejudices. To the extent possible, these prejudices must be identified and addressed.
Develop a theory of the case that fits with the facts, emotions, prejudices, and law. As the litigation lawyer learns of the facts and circumstances of the case and the court, he or she must develop a theory of the case that equitably and persuasively fits within the facts, emotions, and prejudices the case presents, and fits within the law the judge, jury, and appellate court must follow.
Test your theory of the case, again and again, from the perspective of the client, the opponent, the trial judge, the jury, and the appellate court. As the litigation lawyer develops the theory of the case, he or she should test and retest the theory by placing himself of herself in the shoes of the various interested parties and trying to see the case from their perspective. The lawyer should develop theories and arguments and test them with the litigation team, experts, secretaries, jury, consultants, mock juries, and as many forums as the case permits.
Simplify the case to its essentials. The case must be understandable and clear so the decision-maker can make a fair and correct decision. The lawyer must narrow the case to the best factual and legal arguments. Use the best documents, the clearest demonstratives, and the most believable and simple testimony. Discard the arguments and evidence that are secondary and will only confuse the decision-maker.
Obtain the best and most credible expert witnesses you can, and allow them to objectively and fairly help the decision-maker understand the issues and his or her expert opinions. While lawyers would like to believe they win or lose cases because of the beauty and compelling nature of their arguments and courtroom demeanor, a successful litigation lawyer knows otherwise. In a close case where technical or complex issues are before the court, the case is often won or lost based on the testimony of the experts. Often, the case turns on which expert the jury or judge trusts, rather than which expert is technically correct. Finding and preparing an expert with impeccable credentials and a credible manner of teaching the judge or jury about the disputed issues is one of the most important steps the litigation lawyer must take.
Embrace and explain your opponent's best evidence, rather than allowing your opponent to first bring that evidence and its related arguments to the judge's or jury's attention. In every case, the opponent will have favorable evidence and points that the opponent will undoubtedly rely on. Whenever possible, the lawyer must acknowledge and bring that evidence to the judge's or jury's attention first, and explain why the lawyer's client should prevail. This will take away the shock value of the evidence and lead the jury to trust that the lawyer and his or her client are fairly reviewing the case and addressing the good and the bad.
Recognize that cases are won based on the evidence and the law, not the advocacy or personality of lawyers. Recognize further, however, that a case can be lost based on those very traits. Don't allow the case to be reduced to a popularity contest. Judges and jurors respect and rely upon lawyers who are honest, credible, and accurate in assisting them to understand the case, review the evidence and law, and reach a decision. They understand there is no single size, shape, color, demeanor, speech pattern, or oratorical skill that makes a person honest, credible, accurate, or helpful. However, they also know when a person is trying to hide material from them, bend the truth, or move them based on arguments or information that have no true bearing on the issue before them. They can sense inaccurate or irrelevant information or arguments, even if they cannot truly understand the substance, evidence, or issues. A client with a lawyer who is accepted as honest, trustworthy, fair, and helpful has a good chance to win on the merits. A client with a lawyer who the judge or jury mistrusts might well lose a case that is winnable on the merits. A lawyer should therefore always err on the side of accuracy and humility and leave his ego and any grandstanding outside the courthouse.
Be true to yourself. Each person has his or her own personality, traits, voice, and idiosyncrasies. The lawyer must present the case to the jury in a manner that is comfortable and true to himself or herself. A lawyer should not try to present the case as he or she believes someone else might, or borrow someone else's style as his or her own. The jury will sense the pretending, and credibility will be lost. A lawyer must be himself or herself, with his or her individual strengths and weaknesses. The decision-maker will appreciate the honesty and find the lawyer to be credible. The jury will find it easier to identify with, accept, and trust him or her, which is the goal.
Pace yourself. In litigations, the litigation lawyer spends countless hours preparing for the case, reviewing documents, taking depositions, preparing pleadings and motions, selecting exhibits, preparing demonstratives, outlining testimony, and outlining the entire trial. Despite all this preparation, there is a tendency for a litigation lawyer during trial to conclude that the best way to present the case is to work long through the night and perhaps not sleep at all. All too often, the result is that the litigation lawyer is not fresh and on top of the case when he or she is before the judge or the jury. Successful litigation lawyers, particularly the lawyers responsible for presenting the case to the judge and jury, would be better served by trusting themselves and their preparation, and pacing themselves through the trial, according to their personal energies.
Attack a witness only if that is necessary, and rethink that tactic before you employ it. In the heat of battle, a lawyer, particularly in the early stages of his or her career, will conclude, at times correctly, that a witness is not telling the truth or has a selective memory. This conclusion, however, is not always based on an objective analysis of the witness alone, and often the lawyer reaches this conclusion based on his or her thorough understanding and study of the entire case, and every document and issue. The lawyer must recognize that the jury or judge will never reach that level of understanding. The lawyer must also recognize that most judges and jurors understand that testifying is a stressful situation, and they often tend to believe people are more honest than dishonest. Attacking a witness transforms the lawyer into the aggressor, in a circumstance in which the witness is often given a presumption of honesty. If the attack leads the jurors or judge to question the lawyer, the case might well move backward rather than forward. Therefore, a lawyer should attack a witness only if he or she is confident that the jurors and judge will conclude the attack is justified. If the lawyer does not reach that confidence level, he or she should question and seek clarification from the witness with courtesy and respect; make his or her points objectively, not emotionally; and allow the decision-maker to question the witness's honesty through the lawyer's craft, not his or her attack.
Recognize that you can never fully predict what will happen at trial. A litigation lawyer should humbly enter a courtroom with a clear acknowledgement that neither the lawyer nor any client or expert can fully predict what will happen as the case unfolds. Star witnesses will suddenly appear to be pathological liars, while a nerdy expert will give the presentation of a lifetime. The court will make rulings that no one could have foreseen. New documents or witnesses will magically appear for the first time during trial, and be admitted. The lawyer must prepare the client, and himself or herself for surprises.
Try the case to win at the end, preferably before or after a single appeal. Winning or losing a case at trial is not the end of many cases, particularly those of significant value. There will be an appeal. If a lawyer wins a case by overstating the case or violating a rule or controlling legal principle, the trial judge can correct the error in a judgment as a matter of law, or can grant a new trial. If the error survives the trial court, an appellate court can reverse or remand. Few clients desire to finance an entire trial, only to learn that they later have an opportunity to finance a second one. If a lawyer loses a case but preserves the client's right to appeal errors, the lawyer and client at least have an opportunity to correct the wrong through a different judgment, reversal, or new trial. However, if the losing lawyer fails to preserve the right to appeal, through appropriate objections or motions, the courts might well allow errors to stand. Lawyers and clients prefer to try a case once, and win. That goal should be kept in mind.
If mistakes are made, take responsibility for them, and immediately correct them. This rule applies to all mistakes, be them before the client, the court, or the opponent or opposing counsel. Brilliant and educated as we are, we are human. Mistakes will be made. A litigation lawyer gains respect and credibility by acknowledging mistakes made on his or her watch. Indeed, one powerful way to establish credibility is to admit a mistake was made by a witness (or a member of the litigation team, or the lawyer), take responsibility, and correct the mistake, no matter how painful that might be. Credibility is the key, and it is badly damaged if the mistake is identified by the opponent first.
Put the client first, keep the client informed, and return all phone calls and e-mails—immediately. While last on the list, this is the first rule of a successful lawyer, of any type.
Copyright © Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. This article is for informational purposes and is not intended to constitute legal advice. This memorandum may be considered advertising under applicable state laws.