Disputes occur at unexpected times
Picture a guy named Mike walking into his wife’s favorite restaurant with her on her birthday. It’s very crowded, so they have to wait for a table. Mike spots two empty stools down at the end of the restaurant’s bar with a half-empty glass of beer sitting in front of one of them. He asks the guy sitting next to the empty stools if there is anyone sitting there and the guy shrugs and says he doesn’t think so. So Mike and his wife sit down and order some beers of their own. When the bartender brings Mike’s order he takes the half-empty glass away.
Before Mike has a chance to take a sip of his beer he is tapped on the shoulder by a guy who says “hey buddy, my name is Brad and you’re sitting in my seat and drinking my beer”.
Surprised, Mike says “Nah man, I’ve been here for ten minutes with my wife and this is my beer. I just ordered it”.
“Look,” Brad says, “I’ve been sitting on that stool for two hours and I just went to the bathroom for five minutes. You took my seat and are either drinking my beer or you let the bartender take mine, and I wasn’t done with it yet. Either way, you owe me a beer and you need to get off my stool”.
Brad seems a little tipsy but not really drunk. Mike shakes his head and turns back to the bar thinking he’ll wander off if he ignores him, but Brad leans over Mike’s shoulder (a little more aggressively) and says, “I’m serious buddy. You need to give me back my stool and my beer”. Mike notices that Brad’s breath is not that great.
Mike’s wife says “honey, maybe we should just go somewhere else”. The guy sitting next to Mike (the one who had shrugged his shoulders) turns away, making it clear that he wants nothing to do with this, but there are a couple of younger guys on the other side of Mike’s wife who are watching (and smirking just a bit) as the drama unfolds.
“Well, we’re not moving,” Mike says. Brad lays his hand heavily on Mike’s shoulder and leaves it there.
“Yes you are. You’re going to get up and leave me that beer or we’re stepping outside to settle this like men.”
With dispute, there are usually no good options
Now, stop this scenario for a second and consider the options Mike has about what to do next. He can “A”: surrender to Brad’s demand by getting up and leaving his beer behind. He could “B”: explain to Brad that it’s his wife’s birthday and propose a compromise by (say) offering to buy him another beer if he agrees to let Mike keep the seat. Or, he could “C”: continue to refuse to budge and face the prospect of a physical altercation to decide the matter.
Before deciding between A, B and C , Mike takes a better look at Brad to size him up. He’s about the same age and build as Mike. Brad doesn’t look like a brick mason or a retired MMA fighter, but who knows. Then Mike takes a sideways glance at the two young guys to see if they are still watching this play out (they are). He feels his wife’s (now) panicky grip on his forearm as she whispers more urgently in his ear “please honey, let’s just go somewhere else” (somewhere other than her favorite restaurant that is). And he feels the weight of Brad’s hand on his shoulder as he begins to press down on him a bit.
Then Mike thinks about his options again. None of them are good and they all come with a cost. “A” will cost him some pride. “B” will cost him a beer (at least) and is not assured to work. “C” has a price too, it’s just harder to assess without knowing what Brad is willing and able to do.
With all that in mind, and being a red-blooded American man (albeit with two kids at home with his mother-in-law and a job that he can’t really show up to with a black eye) Mike decides on Option “C” and tells Brad to take his hand off his shoulder and find himself another place to sit because he’s not moving.
Good decision-making requires good information
Is Mike bluffing? Who knows? Maybe he doesn’t even know. All he does know is that he believes he is willing to fight for his stool, his beer and something more atavistic that he cannot define—call it right and wrong.
Maybe Brad is bluffing too, or maybe he’s willing to fight. Maybe he doesn’t know either. The only way to know for sure is for Mike and Brad to leave the restaurant and find out. And that is how Mike finds himself walking to the door of his wife’s favorite restaurant on her birthday to fight some random guy named Brad in the parking lot over a barstool and a five-dollar beer.
During that walk Mike starts thinking to himself, how good a shape is this guy in and how much has he had to drink? He’s in OK shape and has only had half a beer, but his last fight was in tenth grade and that was more of a group brawl. What happens if Brad hurts him? Heck, what happens if Mike hurts Brad? Is this a good idea? Was there an Option “D” (like calling the cops) Mike hadn’t thought of because everything happened so fast?
These are all good questions and Mike wishes he had enough time to get answers to them before he walked out the door into the parking lot. He also wishes he had a friend with him who could help him weigh the potential cost against the expected benefit of fighting for his stool and beer, someone who could give him objective advice about whether he was making the right decision.
At some point in our lives we have all of us been a witness to or a participant in a persistent dispute over something of perceived value, or have been harmed or treated in a way we didn’t think was fair by someone else
What is the point of this story? It’s what I use to explain litigation to a new client who has never been through the process before. I think of it as a parable of dispute.
When I was a young lawyer I tried to give a more technical explanation of the litigation process to my clients but I found that didn’t help them very much. The intricacies of discovery, depositions and dispositive motions were trees that didn’t describe the forest very well for them. What they needed was a simple scenario with which they could personally identify.
I found my parable of dispute to be useful in this way because we have all been at least one of the characters in the story (or a similar one) at some point in our lives. Some of us have been the shrugging bystander. Some of us have been the bartender or the smirking young guys. Some of us have been Mike or his wife. Some of us (probably more than would like to admit it) have even been Brad. At some point in our lives we have all of us been a witness to or a participant in a persistent dispute over something of perceived value, or have been harmed or treated in a way we didn’t think was fair by someone else.
Surrender, compromise and fight are always the three options when confronted with a dispute
When that happens to someone, when they are embroiled in a persistent dispute that won’t resolve itself, the options are always the same three ones that Mike had when confronted by Brad: surrender (“A”), compromise (“B”) or fight (“C”). Litigation, I tell my clients, is nothing more than a process that provides the time and means necessary to gather enough information to decide which option to choose. It also provides a friend (in the form of a litigator) who is skilled at giving objective advice about that decision and leading them through the process.
The parable of dispute helps explain litigation in another way. Unless they have experienced the process before, most clients focus more on what might happen in the parking lot than they do on what occurs during the walk from the barstool to the door. That’s natural, given that a trial is far more dramatic than what happens beforehand. But, while natural, it’s not realistic because the great majority of legal disputes never make it to the parking lot. Instead, they are resolved beforehand, at some point during the walk to the door.
That walk, what the Missional Litigator calls Preparing for Trial, is the focus of this website. My goal in writing it is to describe the things a litigator does to move a case toward trial through the litigation process. While that goal is simple, my purpose in writing it is more complicated.
To resolve disputes, a litigator must know how to Prepare For Trial
It started from a desire to describe the process to myself, because I wasn’t completely sure what a litigator was supposed to do or why he was supposed to do it. If you are not a litigator, that will probably sound odd. But if you are, you know exactly what I’m talking about. You can graduate first in your class from a top-ten law school without learning a thing about the litigation process. You can then go work in the biggest law firm in town for ten years and never have anyone show you the best way to perform a particular task or explain to you why it needs to be done.
Unlike the medical profession, the legal profession has no integrated system of internship or residency that prepares its practitioners to do the things they learned about in school. We have the bar exam, but that only determines whether someone possesses the requisite knowledge he needs to practice law. Passing it says nothing about the the skills that will be required if they choose to be a litigator.
To learn the skills of Litigation, a lawyer must suffer through a frustrating period of bumbling incompetence during which his most valuable lessons usually come from the failures that are not quite bad enough to get him disbarred
It is a time in a litigator’s life where there is never a best answer to any question and what works in one case fails miserably in another, despite the conditions appearing to be precisely the same in both.
This period in a young lawyer’s career is what we call the Firehose because drinking from one is what he feels like he is doing. It is a time when many lawyers become embittered or decide to quit the practice altogether. One purpose in creating this website was to provide hope to the young practitioner that there is structure and purpose in Preparing for Trial that goes beyond what to him may seem like chaos.