THE PATH OF THE MISSIONAL LITIGATOR
Recognizing The Problem
My desire to launch the Missional Litigator began with my recognition that I had a problem, which is really how all positive change begins.
A problem is an adverse circumstance that can and must be changed. If it can’t be changed, it’s not a problem but rather a condition that a person just has to learn to live with. Likewise, if it’s an adverse circumstance that could be changed, but doesn’t have to be, it’s a small-p problem. Which means it can wait.
It is only those adverse circumstance that can and must be changed that are big-p problems in need of an immediate solution. Big-p problems don’t go away on their own. If you ignore a big-p problem it will only grow worse, until the day it can no longer be ignored. For me, that day was March 1, 2010.
The BIG CASE
I was exhausted that day. I had just finished a month long trial in a small town fifty miles away from my home. Every day for a month I had gotten up at 4:00 a.m. to prepare for the witnesses and arguments that I anticipated that day, driven myself to the courthouse and spent the day in trial. By the time I got home each night, I only had enough energy to flop down on my bed. I didn’t talk to my kids. I barely talked to my wife. I didn’t exercise. All I did was eat, sleep, drive and try that Big Case. When the jury came back in my favor I had a strong urge to cry, which I was only just able to suppress.
My Big Case had resulted in the longest trial of my career on behalf of my biggest client at the time, so it was a darn good thing that it came out well because I hadn’t worked on a single other case for the entire month. If I had gotten shellacked, my client might not have been as enthusiastic about my bill, which was pretty big. If that big bill didn’t get paid, I would have been in financial trouble—in addition to being exhausted.
In fact, it was the biggest single bill I had ever sent to any client. I asked my in-house contact to do what he could to expedite payment, because it was the only revenue my firm would have that month, because I was the only lawyer in my firm. Actually, I was the only employee in my firm. It was me and me alone and it had been that way for three years. During the month that I had been trying my Big Case, my wife had answered the firm’s mail to make sure the bills were paid and keep me from committing malpractice. Without her, I would have been in ethical trouble—in addition to being overcome by post-trial exhaustion, or PTE as I've come to think of it.
PTE
PTE was not a new thing to me. I had enough trials before my Big Case to know what to expect—a deep physical and mental fatigue that felt like I’d fallen down a flight of stairs, landed on my back and didn’t have the energy or will to even contemplate standing back up. On those occasions that I lost (there were a few) there would be an extra bite to my PTE, but even when I won (like this time) it was debilitating, every time.
So there I was, lying on the only spot on the floor of my office that wasn’t covered with the detritus of a long hard trial, trying to recover from PTE. My desk, chairs, couch and every available space on the floor was stacked with trial exhibits (used and unused), briefs, cases and all the other parts of the paper mountain that grows throughout the trial of a complex case. I knew I had to bring order to that chaos before I could begin practicing law again, but I couldn’t bear to even think about it. Instead, I just lay there gazing at a rusty sprinkler head in the ceiling, wondering if I would have the energy to run out of the building if all that paper in my office suddenly and spontaneously combusted. I wasn’t sure I did—at least not for a couple of days.
While I was lying there I began to think about how lucky I had gotten in my Big Case. Some very important things, things that were completely outside of my control, had gone my way. If they hadn’t, the outcome could very well have been far less positive.
Lucky thing number one: during the month of the trial, while I was buried up to my neck in the Big Case, every other case I had hibernated. No motions were filed, no depositions were noticed, no clients melted down—everything just got real quiet. My wife was a lawyer, but her license had lapsed while she was busy raising our three kids. She could answer the mail and draft pleadings but she couldn’t sign those pleadings or appear in court, so the help she could give me was limited. I was a one-ball juggler and it was simple luck that kept another ball (one that I couldn’t handle) from being thrown at me.
Lucky thing number two: my client had a co-defendant with aligned interests and excellent trial counsel. That meant we could help each other during the trial and they (it was a partner/associate/paralegal team) helped me a lot more than I helped them, even though they were trying another case in a different jurisdiction the first week of our trial. So while that partner was not even present in our trial until the second week, his associate did a great job until he arrived. One-ball juggler that I was, I could never have done that. In fact, I couldn’t even have tried two cases back to back because I couldn’t prepare for the second trial while I was trying the first one.
Lucky thing number three: my client’s in-house contact was ideally suited for his role. He supported me in every possible way he could without being overbearing. If he had been overly demanding or disconnected from the case my job would have been far more difficult.
Lucky thing number four: my opposing counsel had not been very effective. He was competent enough to get his case to the jury, but his presentation was not persuasive. Moreover, he was too disorganized to take advantage of my narrow band-with and put pressure on me.
Lucky thing number five: Despite what I was doing to myself physically, I was healthy for entire month of the trial. Not even a headache or a sniffle the whole time.
The Path Forward
I knew that I had tried the Big Case well enough, but I also knew that I could not count on the replication of that kind of luck in the future. I felt like I had barely scraped by even with everything going my way and asked myself what would have happened if even one of those lucky things had not occurred. The answer made me shudder.
But a couple of good things happened during that bout of PTE. First, my client paid my bill the day after I sent it—a huge relief. Secondly, and more importantly in the long run, I recognized that I could not keep practicing law the way I had been, not if I wanted to keep practicing law as long as I expected to, being forty-six years old and having three kids in grammar school. I had to find a better way forward.
That quest ultimately led me in two parallel directions:
First, it caused me to ask what a Litigator does and why he does it. Answering those questions ultimately developed into the Philosophy of Effective Litigation.
Second, it required me to scrutinize the means and methods I had been using to do my job. The results of that analysis are the Techniques of Effective Litigation.
Together, the Philosophy and Techniques of Effective Litigation form the path of the Missional Litigator. Following that path has provided me a foundation that is sturdy enough to withstand the grind of Litigation, overcome PTE and stay Missional over the long-haul in service of my clients and my community.
If you have gotten to this point, the next step is see for yourself what The Foundation looks like.
-David Redding, founder of the Missional Litigator