- David Redding
A LITIGATOR MUST BE PREPARED
The tough cases are the most difficult for the Litigator to Grind through
Periodically, a Litigator will have a case in which his Claims or Defenses are viable but not well supported by the facts. Proving them will be hard. He will also have cases in which his CL (client) is a difficult person. Preparing for Trial with him will be difficult. In other cases, his OC (opposing counsel) will be unduly fractious or the AP (adverse party) emotionally unstable. This will require the generation of more heat than should be necessary to Resolve the Dispute. And there are times, thankfully not many, when all of these conditions will exist in the same tough case. It is then that the Grind is the most difficult.
When a Litigator is Grinding through a tough case he should view it the way a runner sees the first few steps up a steep hill in a race. He can tell himself that it sucks and that he just has to push up and through to get to a downhill where he can cruise. Or, if he wants to be truly Missional, he can recognize that it is the hills that separate the merely good from the potentially great. Anybody can run fast on the flats, but it is the man who maintains his pace on the hills who wins the race. In this way, the Litigator should be thankful for his tough cases because they provide him the opportunity to be truly Missional. Anybody can Litigate the easy ones.
Grinding through the tough case is also how the Litigator grows in skill and confidence. Looking back at my first one, I can see now that it wasn’t as difficult as I thought it was while I was fighting through it. I find this to be true in running as well—a hill always looks steeper from the bottom and the middle than it does from the top after you’ve already run it. The key with both is to take what you’ve learned and integrate it into your preparation for the next race or lawsuit. If you don’t learn anything from the pain of hills or the battle of the tough cases you can’t get better at either.
Preparing for Trial means two things—getting ready for the expected and staying ready for the unexpected
The first half of that equation may seem obvious—of course you should get ready for the expected, who wouldn’t? The second part may seem like a riddle—how can you stay ready for something you don’t expect?
Although it seems more mysterious, the second question is easier to answer. The reason that an occurrence is unexpected is because you have never before experienced it. Thus, unlike an expected occurrence, you can’t anticipate it with a planned response for which you have set aside necessary resources. You will just have to deal with it when it happens by being as ready as you possibly can.
The same is true in one’s personal life. The mortgage coming due on the fifth is an expected occurrence, so you plan to pay it that day and set aside enough money in the budget to ensure the check doesn’t bounce. Your kid breaking her arm playing soccer is an unexpected occurrence. You don’t have a plan in place to take her to the hospital or the money specifically set aside for the copay, but you will still have to deal with it if it happens—just like the mortgage.
Whether it be Litigation or one’s personal life, dealing with the unexpected requires the maintenance of a reserve, just as a military commander reserves part of his force in battle to address unforeseen threats or exploit sudden opportunities
In battle, to not have a reserve is to court disaster. Likewise, a Litigator (or a parent) who is working without a reserve is only one unexpected occurrence away from disaster.
Take a man who is a single parent who lives paycheck to paycheck. He will have a dilemma on his hands if the school calls to tell him his kid has a broken arm. Who is going to take her to the hospital? How is he going to pay the bill? To be prepared for that unexpected occurrence, he should have developed a network in the community of people that help each other in emergencies and he should have put some money in savings. Without either, he has no reserve.
The pain of unexpected occurrences in my personal life taught me the danger of going it alone. As a result, I have been building my reserve for many years without thinking much about it. For example, if I come out in the morning and see my neighbor’s wife standing with her hands on her hips in front of her car with the hood up, it’s second nature for me to walk over and ask her if she needs help. If her battery is dead, the five minutes it takes me to give her a jump start is not only the right and kind thing to do, but is also an act of reserve-building. It helps our families form a mutual reserve for the day of the unexpected occurrence.
Even though I’ve known this for a long time in my personal life, it took my Big Case to drive the point home in my professional life. But for the five lucky things that happened for me in that case, the outcome could have been disastrous because I had no reserve. Practicing as a solo (a very stubborn solo) I had no LG (litigation group) in place to deal with the unexpected. Had it occurred, I would have been toast.
A Litigator uses what he has learned from his tough cases to get ready for the expected
This takes me back to the other aspect of Trial Preparation, getting ready for the expected. I didn’t do that before my Big Case either. To be clear, it wasn’t that I didn’t anticipate things that I knew were going to happen. It was that, at the time, I wasn’t in the habit of taking what I learned from my tough cases and using those lessons to improve my skill at Preparing for Trial. Because I wasn’t Missional, I was just staying active in the file as best I could and trying the cases that didn’t settle.
Here is an example of what I mean. In every case (like most lawyers) I would serve a request for production of Documents on my OC. Often, he would respond not by producing the Documents themselves, but by agreeing that they would be produced at a mutually agreeable time and location. That would put the onus on me to negotiate that time and location and go get those Documents because I needed them: to 1) evaluate the case, 2) take depositions and 3) ultimately, use as exhibits in Trial. They were important.
And yet, I wouldn’t take the initiative to do it until I was triggered by some other Task or Event, like the receipt of a notice of deposition of one my witnesses. Once (in my first tough case in fact), I never did it. I went right into Trial without ever obtaining my OC’s Documents and still won—but I had to work far harder than I should have. I also got lucky because my client, difficult as he was, was an incredible witness, the best I’ve ever had. You would think that experience would have cured me, but you would be wrong. Why? Because Document-gathering is hard, time-consuming and boring, so I would put it off in favor of Tasks (often Complications) that were easier. I wish I had a better excuse, but I don’t.
It wasn’t until I almost drowned in Documents during my Big Case that I finally began changing my ways. And now, knowing how important my OC’s Documents are, and expecting him to tell me that I will have to come and get them rather than just conveniently giving them to me, that has become a sub-Task on the Critical Path that has priority over everything else. More importantly, I also began building an LG because I realized that Document-gathering was an undertaking that was too big for me to accomplish alone.
Identifying the expected things that were critical to Preparing for Trial (like Document-gathering) is how I ultimately developed and refined the Critical Path—the route formed through Litigation by the Functions that are necessary to Prepare for Trial. Staying on the Critical Path is how my LG gets ready for the expected.
Now back to the unexpected—how does a Litigator maintain a reserve? The answer is in the first two sections in this L-Point: Fitness and Organization. To be ready for the unexpected, the Litigator stays Fit and Organized. Actually, that is not strongly enough put, because it is not sufficient to just try to stay that way. Instead, the Litigator must be about the business of increasing not only his Fitness and Organization, but also the Fitness and Organization of the entire LG.
To stay Missional, the Litigator works the Grind by increasing his (and his team’s) Fitness, Organization and Preparation.