THE ADVERSARIAL CONFRONTATION
Litigators have jobs because people are inherently unreasonable
I sent out a demand letter once and got a call from a lawyer named “Dan” in response. Dan told me that his client would like to settle the Claim without Litigation.
“Great,” I said. “What does he have in mind?”
“A walk-away,” Dan responded. And he went on to tell me about the counterclaim he would “reluctantly” file if we insisted on filing a complaint.
“Well, let me run that by my client and I’ll get back to you.” And I did, and what the CL told me led me to conclude that there was very little merit to the contentions of Dan’s client. So I called him back and told him that.
“Where do we go from here?” Dan asked me. “My client really doesn’t want to litigate.”
“Then he should make an offer Dan.”
“But he already did that. A walk-away.”
“True,” I responded, “but my client has no interest in that. He thinks your guy owes him money.”
After a pause, and a sigh from Dan, he said “I just think there are better ways to resolve disputes than litigation if the lawyers can be imaginative.”
“I’m all ears Dan. What do you suggest?”
“I think you should persuade your client to take a walk-away.”
“Well, I know you think that but I don’t agree. I don’t think your client’s counterclaim has any merit.” I responded, thinking that we seemed to be going in a circle. “But, I’ll wait a week before filing. If your client wants to make an offer let me know.”
After a week went by I filed the complaint and sent Dan a courtesy copy. He immediately called me and said “I thought we were going to try to resolve this without a lawsuit?”
“That’s not what I said Dan. I recall telling you that I would wait a week to give your client a chance to make an offer. He didn’t, so here we are.”
“But he did make—“
“Wait,” I said, interrupting him, “Dan, please don’t tell me about the walk-away again. My client is not interested in that. If that is all your client is going to do then we’ll have to litigate.”
“OK,” he said. “I just wish your client would be reasonable.”
“Me too Dan. I wish everybody would be reasonable. But they aren’t, which is why you and I have jobs.”
That statement sums up my belief on the existence of Litigators. We didn’t create ourselves. We exist because people inevitably get into Disputes with one another that they cannot Resolve without our help, and that help comes in the form of the adversarial confrontation (the "AdCon") that produces heat along the Critical Path to Trial. The heat is what leads to Resolution.
Processors are adverse to the AdCon
Dan clearly did not share that belief. He was a nice guy, but he was a frustrating example of a type of Processor who is adverse to the AdCon. While he did convince me that he sincerely believed that there was a better way to Resolve Disputes than Litigation (because he told me so at least fifty times during the course of the lawsuit), he did not convince me that he was right, primarily because never described what this better way might be.
Adverse to the AdCon as he was, Dan did not Prepare for Trial. In fact, he balked at every Function on the Critical Path that required his participation, focusing his energy on Complication Hockey rather than using heat to seek Resolution.
To wit, when I served him with discovery, he asked for an indefinite extension on the grounds that having to respond would make his client “angry” and render Settlement more difficult. When I proposed a date for summary judgment on his counterclaim, he suggested that it would be a shame to “waste the court’s time with something like that”. When I proposed to engage an experienced mediator, he countered with a lawyer who had never tried a case but was more focused on “the resolution process”. These were all efforts to avoid heat rather than generate it to his client’s benefit.
There is no "better way"
During each interaction I had with Dan he would inevitably sigh and say he wished that my CL would be more reasonable and that I would be more “imaginative”, which (to him) meant that we would accept a walk-away. We never did, and I just kept dragging Dan down the Critical Path toward Trial until (on its eve) the heat I was forced to unilaterally generate helped his client see the light and capitulate to something pretty close to my CL’s original demand.
Despite the fact that he was a Processor I liked Dan, although I felt sorry for him. He always seemed exhausted to me. After the summary judgment hearing that I forced him into, which he won (although the judge told him his counterclaim was pretty weak) we stood outside the courthouse and talked. Dan immediately lit a cigarette, his hands shaking a bit, and confessed to me how nerve-racking the experience had been for him.
“I hated to waste the court’s time with that,” he said, shaking his head.
“Dan,” I asked, “what is it that you think judges are paid to do, if not hear motions and try cases?”
“I know, I know,” he responded. “But I just think there has to be a better way.”
Over the years, I’ve encountered quite a few Processors who share Dan’s antipathy for the AdCon. They all profess that better outcomes would be reached through reason and the willingness to compromise rather than the application of heat. Theoretically, I agree with them. The only problem I can see with that view is that the Parties to a Dispute are inherently unreasonable and more than willing to fight than compromise.
It is the heat generated by the AdCon that Resolves Disputes
In my experience an inherently unreasonable person will not begin to act reasonably simply because his lawyer tells him it would be in his best interest to do so. Nor will a person who is determined to fight choose to compromise without an outside force compelling him to do so.
However, my experience does tell me that Resolution is reached before Trial in the great majority of cases, not because the Litigation process magically transforms the Parties into reasonable people, but because the heat from the AdCon does two very important things: 1) it reveals truth to the Parties, and 2) it takes the fight out of them.
Observing the AdCon reveal truth is like watching Wheel Of Fortune on television. At the start of each segment of the show the contestants don’t know what’s written over Vanna White’s head, but as each letter is turned over they get a little closer to being able to decipher it. Some contestants get it quickly, but others need every last letter turned before they can read the writing on the wall.
It’s the same way with Parties in Litigation. By answering the complaint, responding to discovery, submitting to deposition, fighting through summary judgment and participating in mediation, the Parties have the truth of the Dispute revealed to them like letters being turned on a game board. Some get it very quickly, but other Parties need to see it all before they can understand. Regardless of how long it takes, no Party will be truly ready to compromise until he can see the truth, and the AdCon is the quickest most efficient way to get him there. Heat clarifies the mind.
Likewise with the fight. I advise every plaintiff-CL who comes through my door that one of his options is it do nothing other than simply accepting the fact that he has been damaged and forego his right to seek a legal remedy. Rarely has a CL chosen that course of action. They almost always want to fight—at least at the outset.
Nor have many of my defendant-CLs chosen the option of simply capitulating to the AP’s demand. Even if they acknowledge having done something wrong, they will have mitigating factors in mind which, coupled with the “unreasonableness” of the AP’s demand, inspire them to fight—at least at the outset.
Paradoxically, both the CL and the AP in a given Dispute will see their own determination to fight as necessary due to the unreasonableness of the other Party. When I ask my CL at the outset of Litigation (which I always do) if he is willing to settle, he will invariably say yes, but only if the other Party will be reasonable. I’m sure that the AP will be telling the OC the same thing. Both Parties will say that they are willing to compromise, but only if the other Party will be reasonable. Until then they will fight, and continue to do so until acted upon by an outside force.
Heat is that outside force--it compels a Party to abandon the pre-condition of the other Party’s reasonableness and seek compromise simply to end the fight
The degree of heat required to achieve this end will be determined by the individual Party’s hardwiring and the skill of his attorney.
I have a long-standing CL named “Ron” who is the president of a large commercial construction company. Ron is a very smart and meticulous guy who is not afraid of a fight. But he’s been through Litigation several times and has been finely tempered by the heat. When his company becomes embroiled in a Dispute, the first thing he has me do is determine (as best I can) what the likely outcome will be. He then focuses on that, regardless of how unreasonable he thinks the AP is.
I’ve Resolved many Disputes with Ron without a complaint (or answer) ever being filed because his focus is purely on that outcome. He can read the writing on the wall without a single letter being overturned and is willing to compromise even if the AP is completely unreasonable, as long as it fits into the range of likely outcomes. For him, Litigation is like a hot stove—he only had to touch it once or twice before he learned to give it a wide berth whenever possible.
If everyone were like Ron there would be no such thing as Litigation because there would be no Disputes to Resolve. But they’re not. Most people are very unlike Ron and need the heat of the AdCon to show them the truth and move them to reasonableness.
The Litigator embraces the AdCon, not because he loves it for its own sake, but because it’s necessary of him to accomplish the Mission.