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 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 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 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.
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:
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.
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:
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.
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.
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.
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.
To someone who is or is considering becoming a litigation lawyer, I offer the following:
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.
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