July 30, 2009
It has been an eye opening experience to work closely with parties transitioning from thinking about fighting to thinking about settling. The plaintiff turns to her lawyer with a hurt, puzzled look on her face: “I thought you believed in my case. You said we were going to tell the jury exactly what happened to me and they would find the employer guilty! Why are you pressuring me to settle? Is it because you just want the money?” Or the Vice President of Human Resources levels a stony glare at outside counsel: “We didn’t hire you to sell us out, we hired you to defend this case and bring in a defense verdict.” While every circumstance is unique, I’m seeing enough common misunderstandings to warrant these observations about what lawyers can do better.
- Explain the process. I mean really explain the process. Even if your client claims to be ultra super sophisticated about litigation – especially if your client claims to be ultra super sophisticated about litigation. Let them know what can be expected every step of the way in terms of timing, expenditure of resources and individual time investment. Consider using a written outline that you can go back to, even if this isn’t a client that requests this kind of information.
- Define your role. That is, tell the client what you’ll be doing is working hard to obtain the best possible solution to the problem that led to the litigation. If you’re any kind of litigator, you should be able to sell this. Because if you think about it, even for the most hard-nosed, see you in court advocate that really is what you do. If you get the case by pounding the table with your rhetoric and delivering a rousing closing argument without putting that into context, you lose an opportunity to set realistic expectations for the client. Because we all know that the vast majority of cases settle. Sometimes we’re in a position of recommending to the client that they accept an offer that’s hard for them to swallow. Other times we find they think it’s a sell out to consider settlement at all.
- Educate on possible outcomes. You’ve had clients with unrealistic expectations about what the lawsuit can do for them. Vindication! Millions of dollars! Give me my job back and get everybody who was mean to me fired! Humiliation! Change corporate culture! Make me feel better! Just leave us alone! In employment cases it’s mostly just about money and only in the settlement process is it possible to achieve some of these goals. For example, the company can achieve certainty that this angry plaintiff won’t apply for every job that’s posted, risking a retaliation or failure to hire claim over and over again. A plaintiff can extract a commitment from his former employer to do diversity training, or investigate a brewing problem.
- Set and periodically reassess goals. This process can identify unrealistic expectations and allow those to be sorted out before they turn into a conflict. It gives a format for discussing evidence that is developing. For example, “I know we discussed a goal of filing a motion for summary judgment on the retaliation claim, but now that I’ve seen the email discussing ….. that’s no longer realistic – it would just be a waste of your money.” Or “we did define one of your goals as reinstatement, but the company’s attorney has made it clear that won’t be an option. We have to look at other options.”
- Prepare the client for the multiple hats you’ll wear. During the course of the litigation you’ll be communicating confidentially with your client; developing a workable relationship with opposing counsel that doesn’t hurt your client; strategizing; evaluating risks; negotiating; presenting your case in the strongest light possible. In order to be effective, you use different styles for each of these roles. A client that doesn’t understand what you’re doing and how, for instance, having a cooperative relationship with opposing counsel can benefit him/her with extensions of time, limits on discovery fights, etc may think those friendly communications indicate a sell out. Delivering the closing argument in a mediation may polarize the parties and your own client would be better served with a focus on how to motivate the other side to settle. Because they’ll never agree with you that they are the spawn of Satan – but they might agree it would be a good idea to end the fight.