THE LITIGATOR'S FOUNDATION
Updated: May 26, 2021
The formulation of the Litigator’s Mission provided me with a broad definition of what a Litigator is supposed to be, know and do. My next step was to begin developing a set of specific principles to flesh out and undergird that broad definition. Eventually, I would come to call these principles the Litigator’s Foundation because it had to support the weight of everything required to accomplish the Mission.
Together, the Mission and Foundation focus the Litigator on preparing for the ultimate objective, which is the Trial itself
Trial is the culmination of the Litigation process, during which the Litigator conducts a jury trial of his client’s Claims and Defenses.
Trial results in a Judgment by presenting the jurors with an adversary confrontation (the AdCon) that produces the heat required to fuel the crucible of truth they need to render a just verdict. Without the Trial, there will be no heat. Without the heat, there will be no verdict. Without the verdict, there will be no Judgment. Without the Judgment (or its looming threat), there can be no quick and efficient Resolution.
Because his Mission is to obtain Resolution as quickly and efficiently as possible, Trial must be the end sought by the Litigator, with the process of Litigation being merely the means to that end. As such, Litigation should be stripped bare of nearly everything that is not imperative for Trial, leaving only the Functions that are strictly necessary for the Litigator’s Preparation.
But that is not the case in practice, primarily because not all lawyers who appear in the courtroom are Litigators. Some are Novices who have not yet obtained the necessary skill to Prepare for Trial. Others are Processors whose focus is upon the process of Litigation itself, rather than its ultimate purpose.
Because they are not Litigators, Novices and Processors bog down Litigation with Complications, which are Tasks and Events that are not strictly necessary to Preparation
Complications attach themselves to Litigation like barnacles to the hull of a ship, causing unnecessary resistance, delaying Resolution and sucking up valuable Litigation-energy.
The Processor employs Complications to impede Preparation while still appearing zealous to his client (and maybe himself). His motive is to delay Trial in order to avoid the Post-Trial Exhaustion (PTE), pain and anxiety that comes from trying cases.
Some Processors are former Litigators whose Foundation gradually eroded over time from the Grind. Others are former Novices who never developed a strong Foundation in the first place. Still others are lawyers who, by their nature, are AdCon-adverse and not well-suited for Litigation. Whatever the case, the Processor “litigates” the process itself rather than using the process of Litigation for its sole and proper purpose—to Prepare for Trial.
Typical examples of Processor-driven Complications include:
· Writing long posturing letters attacking the adverse party’s Claim and/or their opposing counsel’s character or competence
· Unilaterally noticing hearings or depositions without clearing the dates with opposing counsel
· Forcing a hearing on motions that are either unnecessary or are reasonably certain to be granted or denied
· Engaging in prolonged and unnecessary discovery disputes
· Responding uncooperatively to requests to schedule depositions, mediation and hearings
· Seeking Trial continuances for non-legitimate reasons
· Taking depositions of witnesses who are unlikely to testify at Trial or otherwise have relevant information
Unlike the Processor, the Novice generally employs Complications accidentally rather than from a motive to impede Preparation. The Novice’s lack of experience and the skill that comes from it, together with his desire to “stay active in the file”, results in him wandering from the Critical Path, which is the route formed through Litigation by the Functions that are necessary to Prepare for Trial.
Typically, the Novice will:
· Plead Claims that will not survive JML (Judgment as a Matter of Law)
· Plead Defenses that are factual positions rather than affirmative defenses
· Plead boilerplate Defenses that (while valid affirmative defenses) are inapplicable to the Claims in the lawsuit
· Serve discovery requests that are not well designed to obtain information and documents relevant to the Claims and Defenses in the case
· Fail to properly introduce exhibits at depositions
· Fail to properly prepare witnesses for deposition
· Fail to control client expectations during mediation
· Seek JML on specious grounds
In addition to Processor and Novice initiated Complications, there are those that arise from the (generally) well-meant efforts of the Court or legislature to further guarantee the fairness of the AdCon or (ironically) to enhance the efficiency of the Litigation process
Unfortunately, they usually have the opposite effect.
One example of this type of judicial-Complication is the “meet-and-mark” conference, which requires lawyers to meet the week before Trial, mark the exhibits they intend to offer and stipulate (if possible) to their admissibility. Some judges take the meet-and-mark a step farther by holding a pre-trial hearing to evaluate the lawyers’ objections to the exhibits for which no stipulation can be reached.
While this idea makes some sense on paper, in practice it doesn’t work. No Litigator will voluntarily disclose to his opponent the precise exhibits he plans to use in Trial and the specific order in which he intends to offer them. If forced to, he will simply mark the universe of documents that he could use, knowing that he will only enter a fraction of them when he is putting on his case.
Moreover, while a Litigator might be able to stipulate pre-trial to a document’s authenticity, maybe even its relevance, how can he stipulate to its admissibility before hearing the foundation his opponent lays in seeking its admission? The meet-and-mark, well meaning as it might be, is just a Complication that wastes time and diverts Litigation-energy away from final Preparation.
Finally, there is the category of benign Complications (like pre-trial conferences, serving requests for admissions and taking the deposition of a nominally important witness) that may not significantly impede Preparation and (in some respects) may even add marginal value. These Complications (benign as they may be) still divert Litigation-energy away from the Critical Path.
The collective consequence of Complications (regardless of their source, intent or relative benignity) is to continually increase the complexity of Litigation, which decreases the process’ efficiency and increases its cost
The increasing complexity of Litigation is a trend that will not abate on its own. The four-page list of Tasks I made ten years ago would likely fill five pages today. Ten years from now, it might have taken me ten pages to write everything down, had I not begun the search for a solution to the problem of ineffective Litigation.
That search revealed to me that it was not Preparing for Trial that causes PTE, but the Litigation-energy consumed by stumbling through Complications along the way. In order to focus on Mission, I needed a set of tools to fight back against the Complications, not only for the best interests of my clients, but for my own well-being.
The Litigator’s Foundation is that tool set that is comprised of four pillars
· PILLAR ONE/Missionality: the Litigator’s commitment to Mission in all that he does
· PILLAR TWO/Essential Skills: those Tasks that a Litigator must perform with excellence to accomplish the Mission
· PILLAR THREE/Critical Path: the route formed through the Litigation process by the Functions that are strictly necessary to Prepare for Trial
· PILLAR FOUR/Group Development: the formation and deployment of a Dynamic LG (Litigation Group)
A Novice who does not fully develop each of the four pillars of his Foundation will grow into a Processor who plays Complication Hockey to protect himself from PTE rather than a Litigator who is dedicated to accomplishing the Mission. To avoid that end, the Novice must begin to deliberately build his Foundation as early as possible in his career.
Likewise, if one or more of his pillars begins to crack or erode over time from the Grind, even a highly skilled and dedicated Litigator will find himself sliding toward Processor mode. To keep that from happening, the Litigator must continually reinforce his Foundation by deepening his commitment to Missionality, sharpening his Essential Skills, streamlining the Critical Path for his LG and enhancing Group Development.
The Litigator must view this effort as constant and binary, in that he is either strengthening his Foundation or it is becoming weaker—there is no status quo. Any Litigator who thinks there is a plateau upon which he can rest is living on borrowed time because (in actuality) his Foundation is eroding—he just doesn’t realize it yet.
Unlike the Processor, the Novice generally provided me nwith a broad definition of what a Litigator is supposed to Preparation. The Novice’s lack of experience and the skill that comes from it, together with his desire to “stay active in the file”, results in him wandering from the Critical Path.