By Ellery Johannessen
September 14, 2022
I love my work. In choosing to be a litigator, I found a job uniquely adapted to my skillset. I get to do the real-life Law and Order type stuff you see on TV (albeit slightly less dramatized). My job is great. Except for the times that it isn’t.
When, might you ask, is it not so great? Well, my job is premised on my ability to do three things: gather evidence; prepare witnesses; and, fit the law into the facts I have. With a cooperative and engaged client, those things come easy. But when a client takes a scattershot, irrational, or reckless approach, problems and costs accumulate quickly.
I developed my Three P’s of litigation as a series of guideposts for both myself and my clients. It’s a pre-check to any action I or my clients taken during a case. Following these guideposts helps to optimize outcomes by cultivating a goal-oriented approach and eliminating emotion from the litigation process.
Planning
Every member of a uniformed service or law enforcement knows the saying: prior planning prevents piss-poor performance. The cornerstone of successful litigation is solid planning.
I competed in the National Moot Court Competition during law school. The competition is the oldest, largest, and most prestigious moot court competition in the United States. My first year on the team, we didn’t have much of a plan. We met early on and broke down the competition problem into three distinct parts, each of us writing some of it and cobbling together at the end. We didn’t have much communication during the writing phase, and when we moved to combine the document into a single cohesive piece of writing, we realized that we hadn’t answered the question that the problem was asking. We went back to square one and started over. The final product was a Frankenbrief that, predictably, read as if it had been written in a hurry by three different people. We were competitive during oral argument, but our brief score dragged us down and we didn’t make it out of regionals. Our performance was, relative to our potential, piss-poor.
Those lessons followed me into my second year on the team. This time, I was better prepared for what the process entailed. My team started by meeting and talking through the issues at length to ensure that we really understood them. We set ourselves firm deadlines to accomplish certain writing tasks. We spent frequent late nights reading our brief together on a projector in a study room of the basement of the law school building, going over each word, space, punctuation mark, and heading. We each took turns reading the brief aloud to make sure our phrasing flowed naturally, logically and sounding if it were a single voice. Our efforts paid off – we took second in regionals and advanced to nationals, where we submitted the 7th best brief in the nation (out of an original field of 195 schools) and placed 5th overall.
Our planning paid dividends.
Rushing into litigation without a plan is a near guarantee that you will lose your case, quickly and in spectacular fashion. Good planning prevents this. Planning means understanding what your case is about, gathering your evidence, working with your lawyer on a roadmap, and understanding all the potential variables at play. You should know what your case is about, what evidence you will rely on, and have at least an understanding of the legal theory you are pursuing before you make your initial filing. Spend the time with your lawyer to come up with a plan first, so that you don’t end up scrambling later.
Patience
Tom Petty said what we’re all thinking – the waiting is the hardest part.
We’ve all had the feeling of throwing up our hands and saying, “what’s taking so long?!” For a seasoned litigator, the idea of a case lasting a year, or two, or more, is commonplace. We don’t even think about it. Lawsuits take a long time. From filing, you have a certain amount of time to serve the other side, then they have a certain amount of time to respond, then there’s months – and months – and months – of discovery. Motions often change the landscape of a case, requiring adjustments to the case schedule. Other parties will join or leave the case, and adjustments must be made. We hear in the media about cases going on for years and don’t think anything of it. But when it’s your case, it’s another matter entirely. Lawyers compartmentalize cases into smaller chunks and phases so that we hardly notice the passage of time in a given case.
That much empty time can feel like an eternity and can prompt impatient litigants into unwise courses of action. Here are two examples.
- A portrait of impatience: In one of my cases, a client pushed me to pursue a default judgment against the other side the day after their deadline to respond had expired – just shy of a month after they were served. I warned the client that it might get overturned later, but they insisted and I went ahead and did it. When we moved to enforce the judgment, the other side asked the court to undo the judgment – a process which, in itself, took 3 more months. The court did just that, setting my client back to square one after months of delay. We had no discovery, no ADR, no nothing, and we were already 7 months into the case. All because of one rushed judgment. If we had waited, the judge would have had a much harder time deciding that the other side had acted with diligence.
- Patience pays off: In another case, my clients filed suit over the summer of 2021. None of the defendants responded for several months, and then, only two (of 12 named defendants). The extra time gave us the opportunity to gather more evidence, issue subpoenas, and conduct a series of interviews. The result? A trove of subpoenaed records and three additional plaintiffs all raising similar claims, strengthening our case and looping in an additional, and crucial, defendant. The complexity of the case certainly doesn’t help to speed things up, but working at a measured pace has ensured that nothing is missed. Waiting and working the case slowly, rather than rushing to a default posture, has revealed significant and crucial information for my clients.
Remember, your lawyer likely bills you for every email he or she has to respond to, so weekly “what’s happening in my case?” emails are going to cost you a lot in exchange for not much. Be patient. Work with your lawyer to understand the phases of your case, the time each phase might take, and what you can expect during slow periods. It is fine to periodically check in and ask if there is anything you can be doing, but understand that the answer might be “no,” and that’s okay. Work this into your plan with your lawyer and see if there is an active role for you (such as cultivating witnesses and documents).
So, dispense with the notion of going from filing (or indictment, or whatever) to trial in the span of an hour of primetime television, and embrace the wait.
Pragmatism
How do you spend your money? If you had to prioritize groceries or a roll at a craps table on the Las Vegas strip, which would you choose?
The answer for most of us is so obvious it hurts: the craps table. Okay, maybe not the craps table, be responsible and feed the family. And while groceries are the painfully obvious choice in a hypothetical like this, the answer for many in litigation is far murkier.
You can do a lot in litigation. You can propound written discovery. You can send out subpoenas. You can take depositions and do inspections of basically anything that might be relevant. You can file motions when the other side is behaving badly (or when you think they are). You can ask the court to skip the trial process and rule in your favor. You can decide that mediation or arbitration are a better and less expensive avenue toward a resolution.
At every inflection point in a case, your lawyer’s job is to help you decide what’s cost-effective and what’s a waste of money. In family cases, for example, disputes between parents often lead to rival threats of contempt. A high fever, bruised arm, or a mysterious rash can result in accusations of child abuse. In civil cases, a missed deadline can trigger allegations of bad faith. Slow discovery processes can result in requests to compel discovery.
When emotions run high, people react with their guts, not their heads. They’re mad or excited or in some way emotionally elevated, and they want their lawyer to fly into court on a magical briefcase and exact righteous vengeance on their opponent. They want to roll that lucky 7 while the whole craps table cheers them on. But that’s not how it works. Unless it’s serious enough (and few are), a single transgression isn’t going to move the needle for a judicial officer. They see stuff like this all the time and they usually kick it back to the lawyers to work it out. You need to build a stacked portfolio of transgressions in order to get a judge or commissioner or magistrate to pay attention. You need to be playing with loaded dice before making that roll.
You need a lawyer who will tell you when something isn’t worth doing. Remember: you’re paying this person hundreds of dollars an hour for their advice. If they’re telling you “I’d rather not take your money for this,” listen to them. We lawyers are a hungry bunch. We’ll usually take on any argument we can make with a straight face. Many lawyers will happily take your money if you insist upon embarking on a fool’s errand – but we also know which arguments are likely to land and which aren’t. If your lawyer tells you something isn’t worth doing, chances are, they’re right.
Don’t pursue an avenue if your lawyer thinks it’s a bad idea. Save your money for the craps table.