The Counselor’s Conundrum: Convincing the Client Not To Sue
Lawyers have a reputation for loving litigation. Movies and TV would have the general public believe it is 80% of a lawyer’s job to litigate, with the other 20% of one’s time devoted to looking sexy while delivering witty banter.
And let’s face it. Who doesn’t like sinking their teeth into a good law-suit. It is where the juicy stuff is, it is where the billable hours are plentiful, it is where our natural desire for vengeance and righteousness lights a fire in our bellies, it is where we get to say “Your Honor” and pound the table. It was the reason you let a law school professor talk you into reading The Art of War. Given the time and effort required by litigation, shouldn’t lawyers, by sheer self-interest, be motivated to make certain the client has a day in court?
Litigation is not only the province of Perry Mason and Alan Shore—on a more banal level it is the process by which evidence is hyper-analyzed by the legal profession in the hopes of persuading decision-makers that their client is on the right side of an argument. This can happen in many venues, but one universal truth is that it is always tedious, frustrating, and costly for all involved. Litigation can be glorious and fun, and it can be down-right nasty.
Those words you wish you hadn’t uttered to a paralegal or secretary in the past—let me guess they were spoken without thought during the most stressful moment on the eve of a trial. That time you missed so-and-so’s ballet recital for which your significant other will take their sweet time forgiving you—probably was double-booked with the argument of an “important” motion. And that bill you had to cut in half to keep your best client from walking—may just be for the time an associate spent reading through boxes of documents that didn’t actually contain the “smoking gun” you hoped would win the case.
I’ve sat with clients in federal courts, local courts, administrative hearings, disciplinary proceedings, and probate chanceries. Strangely, all of these diverse forums had the same basic process: oral arguments, stacks of tabulated exhibits, testimony, and a written verdict by an impartial authority. Whether it was called “litigation” or not, it was. Whatever the name, it did not smell like a Shakespearean rose. The end was supposedly to prove the truth and to promote justice. Perhaps, in the end, justice was often served. Likely, many facts were learned, sometimes whether the parties liked it or not. Always, in the end, lots of paper was produced. But never did the client get the satisfaction of seeing his opponent whipped in the public square. (Footnote: I did really have a client tell me once that was the outcome she wanted. Be sure you under-promise, folks.)
Sun Tzu says in the Art of War that a war-lord must not prepare for battle unless he has enough men and munitions, and only then if the war-lord also has 500 pounds of gold to fund the duration of the combat. But just because you have 500 pounds of gold, doesn’t mean a good lawyer’s job is to convince you to spend it on depositions. The Confucian Book of Changes notes that “the more successful general is not the one who triumphs on the battlefield, but the one who is able, through strength of discipline and inner power, to triumph without spilling blood.” And the Sicilian in the Princess Bride reminds us that one of the only true things in life is that you should never get involved in a land war in Asia.
Because of our colloquial usage of the term “splitting the baby,” we often forget that the wisdom of the legendary King Solomon was not found in the suggestion that the object of the dispute be divided 50/50. The wisdom in that biblical allegory was making the parties to a custody dispute in domestic relations court realize that the best interest of the child was vastly more important than their continued animosity towards each other. One might then wonder whether the firm of Sheba and Solomon P.C. shouldn’t be involved in more divorce matters these days.
Contrary to public belief, the attorney is not just a soul-less money-making machine who thinks he or she is smarter than everyone else because they figured out how to charge big-time for deliverables that display brain power. The wise business planner knows that money will be made on the repeat customer. And the zealous advocate knows that what is often in the client’s best interest is to avoid litigation altogether. Our ethical goal and our business goal can actually be united in the moment where we counsel the client not to sue. Not always…but it is food for thought.
