Defining a Win in Litigation
The following statement may come as a surprise from a trial lawyer but I hate lawsuits. Corporate America asks our firm to represent them when they are sued in commercial, employment and personal injury matters. Some cases have merit. Some don’t. But I find them terribly ineffective to resolve disputes. They are time consuming. They are expensive. They are confrontational. Personalities and egos get in the way. Misunderstandings devolve into nasty e-mails and nastier motion practice. I’m a cost center to my clients. I don’t make them money. I only cost them money. And so the best thing I can do for them, the best any of us lawyers can do for our clients, is to sit down with them at the beginning of the case and discuss how they define a “win” given the facts of their case. Spending a lot of money to take the case to trial and get a defense verdict doesn’t sound like a win. Spending a lot of money to settle the case upfront to avoid any and all litigation costs doesn’t sound like a win either. But in every case, no matter how daunting, we lawyers can make a bad situation better, sometimes only slightly, sometimes markedly so. There are cases that can be resolved for little or nothing quickly. There are cases that will drag on despite our best efforts. But every case has a resolution, and explaining to the client what that resolution is and the cost associated with it is one of our most important jobs as attorneys.
By understanding our clients’ needs and concerns, we can define the end point with them. As Stephen Covey says, start with the end in mind. Based on the facts and the law, what do they consider a favorable resolution? Maybe it’s quick and confidential. Maybe they’re looking for a fight to ward off other spurious claims. They need you to help define expectations, goals and an action plan to achieve them. To do so, you, as counsel, have to do an early case evaluation which includes:
Identifying the key facts
Reviewing the relevant documents
Researching the relevant law
Doing due diligence on the opposing counsel and the presiding judge
Preparing a case budget
Evaluating likelihood of success at various stages of litigation
An early and honest assessment of the case provided through the prism of the client’s wants, needs and risk assessment, will provide the guidance the client needs to make the decision on how she desires to proceed. Working with the client to define a win empowers the client to take control of the case and direct its trajectory. A client can always win as long as it’s a reasonable win. We can’t always promise the client complete and utter victory. But transforming total defeat to a limited defeat can also be a win. There’s always a way to make a bad situation better. Do that, and your client has a win on her hands.
