Combat Lexicon of Trial Lawyers
By Gregory S. Cordrey and Martha K. Gooding, who are partners in the Irvine office of Howrey, where they specialize in complex business and intellectual property litigation.
Trial lawyers often speak in the lexicon of combat. Contentious cases are described as “hard-fought battles.” A well-funded opponent wages a “war of attrition.” The analogy has its limits, but there is no denying that combat and litigation have much in common. Indeed, the advice penned by one of the great generals of the ancient world—Sun Tzu, author of the Chinese classic The Art of War—remains relevant for trial lawyers some 2,500 years later. Here is but a taste of his wisdom.
“He who wishes to fight must first count the cost.”
Before undertaking any representation, it is imperative to candidly discuss the fees and costs your client will incur. A client caught off guard by the cost of litigation—or lured into a lawsuit with a low-ball estimate of fees—is likely to be a disgruntled client and, ultimately, an account-receivable problem.
In addition to financial considerations, you also must prepare corporate clients for the impact of e-discovery: the disruption of business when employees must search for documents; the time required to review the facts and to prepare and sit for depositions and trial testimony; and the potential disclosure of confidential or trade-secret information. Protective orders can only do so much, and clients must understand that a protective order that works during discovery may not be as protective at trial.
“Rely not on the likelihood of the enemy’s not coming, but on our own readiness to receive him.”
Evaluating your client’s offensive position is only half the battle; you must also evaluate your client’s vulnerability to a counterattack. Beyond evaluating potential counterclaims, this requires you to dispassionately assess weaknesses in all your factual and legal positions. It is folly to assume your adversary will not find or appreciate the bad fact, the damaging document, or the adverse case law. Know your vulnerabilities and plan to neutralize or overcome them.
“To not prepare is the greatest of crimes; to be prepared beforehand for any contingency is the greatest of virtues.”
It is hard—maybe impossible—to be overprepared. Consider your key witnesses. No witness welcomes the prospect of setting aside multiple days for deposition preparation. But it is unrealistic to expect that, in a day or less, a key witness can learn the deposition process; understand the claims and defenses; appreciate the nuances of each side’s arguments; review, discuss, and prepare to testify about key facts, events, and documents; and practice answering hard questions. A witness or client who performs poorly will likely (perhaps rightly) blame you. Prepare meticulously.
“He who knows when he can fight and when he cannot will be victorious.”
Effective trial lawyers must be prepared to do battle—in deposition, motions, and at trial. But sometimes the client’s interests are best served by not fighting. That can mean identifying, seizing, and even creating opportunities to move toward settlement before or after the complaint is filed, or creatively positioning a case for an early dispositive motion. It also means evaluating the impact of every motion—on your position and on the court’s perception of you and your client—before you file it. It takes skill to achieve your client’s goals without an expensive, exhausting “war.” One of Sun Tzu’s overriding principles is “winning whole”—no Pyrrhic victories.
“Avail yourself of any helpful circumstances over and beyond the ordinary rules. Accordingly, as circumstances are favorable, one should modify one’s plans.”
When cataloging the essential skills of good trial lawyers, insightful voir dire, persuasive arguments, brilliant direct examinations, and withering cross-examinations all make the list. But another skill spells the difference between good and great trial lawyers: the ability to react and adjust in real time to courtroom developments. A lawyer slavishly wedded to a trial plan may overlook important signals from the court and jury, fail to react to game-changing rulings, and miss important strategic opportunities. Even the best-laid plan may need adjustment in the heat of battle.
“The general who advances without coveting fame and retreats without fearing disgrace, whose only thought is to protect his country … is the jewel of the kingdom.”
In all we do as lawyers, we must ensure that we know our clients’ goals, understand their business needs, and protect their interests. With that as our guiding principle, we cannot help but become a trusted counselor and noble general on the litigation battleground.