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Every one of us carries a measure of optimism whenever we decide to undertake something. Undoubtedly owing to a cluster of deep-seated personality defects, I find I often see a glass as half empty. I don’t begrudge this aspect of my personality; it tends to make me a conservative investor and a boring gambler.

Most successful plaintiff lawyers I’ve worked with, however, seem more often than not to be glass half-full types. Let me clarify what I mean for the benefit of any readers who aren’t familiar with the American system of jurisprudence. I’m referring specifically to lawyers who agree to take on clients and cases on a contingency basis. Under these circumstances, a lawyer agrees to represent a client or clients in a lawsuit without any fees unless and until there is some recovery, by settlement or judgment. There is always an investment of the lawyer’s time and often the lawyer also agrees to advance the costs of litigation against the chance of recovery. If the case or claim is successful, the lawyer is reimbursed the costs she advanced and she also receives an agreed upon percentage of the recovery.

It’s not difficult to see how one would have to be something of an optimist to take any case on contingency, though a better quality case against a deeper-pocketed defendant tends to reduce the risk. In fact, some of the wealthiest practicing lawyers earned their fortunes through contingency fee litigation.

Not long ago, I handled a case against someone so optimistic about his client’s case that he was literally “drunk” on his own Kool Aid. So drunk, in fact, that he didn’t sober up until after he lost the trial and his client hired another lawyer to represent her in her appeal. It wasn’t that his client had a drop dead loser of a case. The case actually had some sexy facts; the kind of facts that can make jurors rock back and forth in their seats with interest. Things could have gone the other way, and he could have won. But it wasn’t that good of a case, and he could have and should have tried earnestly to settle before rolling the dice with the jury. He was just too buzzed to see the glaring weaknesses or put a realistic settlement value on the case. He never got within a range in which it made the remotest sense for my clients to make any serious offer–so they didn’t.

I recognize the counter-argument can seem compelling. After all, some of the biggest jury verdicts came out of situations in which David took on Goliath and prevailed against all odds. And I’ve already admitted I tend to see the glass a half empty. But what set my “drunkard” opponent apart from another, wiser lawyer was his steadfast refusal to give any weight to the opinions of two separate neutrals (a mediator he had selected and a USDC Magistrate Judge sitting as a settlement officer), who both told him he was being ridiculous in his expectations and wrong on a pretty important issue of the law.

Is it possible to be a “sober” optimist? Sure. One way is to pay attention if multiple neutrals (including one you selected) suggest you’re off the mark. Of course, neutrals may not always be truly neutral, even when you’re paying them to (i.e., when they’re leaning on you in a mediation). Another approach is to submit your facts and arguments, including what you expect the other side will say, to a mock jury–even a cheap one like I described here. I’ve also known lots of lawyers (even really skilled ones) who will ask every colleague they know what they think about a set of facts, just to see if they’re missing something. There’s nothing wrong with this, as long as you don’t inadvertently waive the attorney-client privilege.

One final thought: being a “drunk” optimist is fine: (1) as long as you’re gambling only with your own time or money; or (2) just like elective surgery, if you fully inform the client of all circumstances, including the risks (or likelihood) of walking away with nothing, and the client understands and is just as eager to roll the dice, then by all means roll the dice.

[youtube https://www.youtube.com/watch?v=kzhpP07Hhms&w=420&h=315]Michael Clayton was an under-appreciated legal thriller. I will admit it took me multiple viewings to fully appreciate it. But I’ve really come around. Tom Wilkinson, George Clooney and, especially, Tilda Swinton do a fine job, and it’s written and directed by Tony Gilroy. If you work in BigLaw, or you represent giant corporate clients, or, like me, people often mistake you for George Clooney, parts of the film will definitely ring true.

Ok, I realize I’m a little late to the party, as Sargon Enterprises, Inc. v. Univ. of Southern Cal. (212 DJDAR 15846) was issued at the end of November, 2012. But, better late than never, right?

Practitioners who try cases in both Federal District courts and California state courts are all too aware of the schism that has existed between the courts for almost two decades on the question of admissibility of expert opinion. California has long adhered to a line of authorities tracing back to 1923, when Frye v. United States (293 F. 1013 (D.C. Cir.)) was decided. The Frye test, also known as the “general acceptance” test held that a new scientific technique or methodology was inadmissible unless and until the proponent of the evidence established that the technique or methodology had attained “general acceptance” in the relevant field. The California Supreme Court adopted the Frye test in 1976. (People v. Kelly, 17 Cal.3d 24, 32.)

Since the 1993 decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579), federal courts have applied a different standard. Under the Daubert rule, the trial court’s role is to act as a “gatekeeper” to ensure expert testimony that is admitted is reliable based on certain factors, including whether the opinion was being developed solely for purposes of litigation, whether the opinion or methodology had been independently tested in the scientific community and the potential for error.

The schism between federal and California courts continued until the California Supreme Court’s recent pronouncement, in Sargon Enterprises, that “the trial court has the duty to act as a gatekeeper to exclude speculative expert testimony.” The evidence at issue in Sargon was proposed testimony of a damages expert on lost profits suffered by a dental implant inventor who claimed the University of Southern California School of Dentistry had botched a clinical trial of its invention. In holding that the trial court had properly excluded the lost profits opinions, the California Supreme Court said:

“Under [California] Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As we recently explained, [t]he expert’s opinion may not be based on ‘assumptions of fact without evidence support, or on speculative or conjectural matters . . . Exclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?”

The California Supreme Court did caution trial courts, however, that their analysis must focus on methodology, not on conclusions. It said: “The trial court’s gatekeeping role does not involve choosing between competing expert opinions.” Referring to the U.S. Supreme Court’s opinion in Daubert, it said, “The high court warned that the gatekeeper’s focus must be solely on principles and methodology, not on the conclusions that they generate.”

One of the greatest things I’ve ever done for myself was to plan and take a sabbatical from my law practice to travel throughout Asia. From October, 2006 through March, 2007, my wife and I traveled through Japan, China, Thailand, Nepal, India, Laos, Cambodia, Vietnam, Singapore, Indonesia (Bali), Australia, New Zealand and French Polynesia (Tahiti and Moorea).

Before, during and since the trip, people (colleagues, family, strangers) expressed a variety of responses to the notion of taking a break 15 years into our law practices to do extended travel. While most were positive (some bordering on a kind of awe), I knew there were a few people who saw the time off and the trip as an extravagant self-indulgence. After all, isn’t that the kind of travel (especially rough, the way we did it) best done right after college, before you get going in your career, start developing clients, etc.?

I thought that way, too, when my wife first proposed it before we got married. But she had dreamt of doing extended travel for years before we met and, since I loved to travel, it wasn’t too long before I was fully on board with the program. But while I am grateful and proud of us for taking the sabbatical and doing the trip, I will say it took a lot of meticulous planning to transform the dream into reality. I thought I would share some of the details, in case others are interested in planning a 6 month or longer travel sabbatical.

1.  Start planning early. We started our serious planning for the time off and trip at least 5 years before our departure. Credit for this planning goes 100% to my wife, Heather. While I was committed in principle to the dream of taking a chunk of time off to travel, I found it hard to think practically about how to make it happen. But I’m really glad we had 5 years to plan, because that time made it possible both to save money and give ample notice to our employers.

2.  Telling the boss. This was in many ways the most important part of the planning process and the aspect that can seem like the biggest challenge (at least it did for me). In my case, I had layers of “bosses” (aka partners) to whom I needed to plausibly sell my dream. Here’s the rub: most of us desire to be so indispensable that our firm cannot thrive without us, which is why we command large salaries, big offices, etc.; at the same time, we may want to have the freedom to pursue a dream like a travel sabbatical. Some (many?) would say that’s not possible, and there’s probably some truth to that. The very definition of indispensable means it would be devastating to my practice to go away for 6 months, largely incommunicado.  In my case, at that time, I was not indispensable. I was still largely a “service partner” and it was possible to hire a senior associate to take over my a good part of my caseload (I’m happy to report she has since been elevated to partner).

But I don’t want to oversimplify this part of the equation. I was (and am) very fortunate to work for a law firm and with a group of lawyers sophisticated enough to embrace the notion of a partner leaving for half a year to go explore the other side of the planet. I fully recognize that many (if not most) law firms and managing partners either cannot or will not permit someone to take such a leave, absent some kind of emergency.

In any event, I approached my mentor and senior firm management with the proposal to take a 6 month unpaid leave about a year and a half before I intended to leave. I will admit that I was concerned that, if the request was not well-received, it could impact my advancement and compensation even if I never went, but that was a risk I was willing to take. While nobody received the proposal negatively, it did take the better part of a year before I finally received written “permission” to take the leave.

3.  Save. Save. Save. Even if you travel pretty rough, as we did, it’s still expensive. My wife bought my one major airline ticket which got us to and from Asia and across some major geographic gaps for about $4,000 as my 40th birthday present (Thanks!). I still saved and ultimately spent about $20,000 on the trip. When I use the term “rough” here, it bears clarification. We did not stay in youth hostels–mostly because we’re old and I didn’t want to be that creepy 40 year-old guy hanging around, leering at somebody’s young Swedish girlfriend while my wife contemplated divorce (or found herself leering at the Swedish girl’s boyfriend). So, when I say rough, we tried to find acceptable lodging just above the hostel level, which meant we always had a private, lockable room, and sometimes our own bathroom. Insects and cold showers were not that unusual. We also treated ourselves occasionally to finer lodgings, like over Christmas, when we rubbed shoulders with India’s upper class at a plush resort in Goa.

4. What to do with your primary residence. This can be a pain in the ass, but it wasn’t for us. Our next door neighbor, a Cal Tech professor, made it possible for us to lease our house, completely furnished, to two Harvard history professors who were on research sabbatical. Not only did the rent cover our mortgage, but they took better care of our house than we usually did. And we became friends! We also had a vacation condo in Santa Barbara and had to find a renter there, too. Again, we found a visiting French scholar doing post-doctorate research at UC Santa Barbara. All I can say is, if you can find academics to rent your house, they make great tenants.

5. The value of good advice. We have never been “guided tour” people, who call a travel agent and let them plan everything. We did that once, in Egypt, and it made a lot of sense. But for our sabbatical, we did 95% of the planning, arrangements, etc. ourselves. This is harder in some regions than others. Traveling solo in China can be very difficult. Fortunately, for some destinations, particularly India, we benefited from some really solid, trustworthy advice and help both inside and outside the host country.

6. Other details. There were a thousand and one other things to plan and do before we left. These included: arranging for care for our 2 cats, finding the right luggage to “lug” around for 6 months, buying a small quantity of clothes we didn’t mind washing and wearing over and over, in a variety of different climates (Cambodia was sweltering, while the hills in northern Vietnam got really chilly), getting visas for destinations that required them and getting necessary vaccinations. I also decided to blog about the trip, so I bought a computer and set that up.

There is a lot to think about if you contemplate taking a travel sabbatical. And it’s not for everyone. I recognize that the rough lodging alone might seem worse than work for many, and I’ll confess I try to travel more comfortably now. But I’m enormously proud that we planned and did the trip and grateful to my wife, our families and employers for making it possible. I came across a quote from Mark Twain that my wife used to describe how she felt about taking the time away and traveling to distant lands. It fits nicely here:

“Twenty years from now you will be more disappointed by the things you didn’t do than by the ones you did. So, throw off the bowlines. Sail away from the safe harbor. Catch the trade winds in your sails.”

Experienced lawyers speak about trying to learn something from every case you handle. This is valuable advice, and something most of us probably do without really thinking about it. But I’ve found it more valuable and interesting to try to learn at least one thing each from at least most lawyers I come across in the course of my practice. In many ways our professional education only begins in earnest after we finish law school, pass the bar and start plying our trade. I was fortunate to have a great mentor during these formative first years, but I recognize the reality that not every new lawyer is going to bond with a mentor.

In an odd way, however, every lawyer we encounter in our practice can act as a mentor of sorts and, if we’re perceptive, can open our eyes and help shape us into better lawyers. Let me offer a couple of illustrations. Let’s first take a positive example. Some years back, my partner and I defended a catastrophic product liability case against an older aviation lawyer. This guy, who is now retired, was quite literally a trial legend. He was sharper in his early 80s than most of us at our peak. Our case together resolved pretty early on, but I still had an opportunity to share an almost empty courtroom with him one morning while we waited for our judge to rule in chambers on an ex parte application.

What did I take away from the experience? Probably more than I realize, but what struck me at the time, and has stuck with me since, was the way in which he interacted with the courtroom clerk and bailiff. We’ve all seen how lawyers parade into courts and treat the courtroom staff with . . . let’s call it indifference, or sometimes worse. We litigators often see clerks and bailiffs as impediments to what we’re trying to accomplish. I know at my worst moments I’ve done it. But I saw how my opponent’s manner was different. When he spoke with the clerk and bailiff he engaged them. From his attention and questions, it was obvious he had a genuine interest in their backgrounds, their interests and families. It wasn’t a stretch to imagine he would take a similar interest during voir dire in the prospective jurors who would decide his client’s case.

We all know people who are have this kind interpersonal curiosity—they’re often very successful, as politicians, leaders—or trial lawyers. Why are they so successful? Because being interested—genuinely interested—is the first step in creating a bond, which involves trust. And the ability to garner trust can be among a trial lawyer’s greatest strengths.

Not every lawyer we encounter is worthy of emulation, and that can be a valuable learning experience, too. And we don’t learn only from seasoned lawyers, newbies who have a trait or style can help shape us, if we’re paying attention. In particular I’m thinking of a young associate I came up against a while back. I previously wrote about this guy. On the surface, he had a lot going for him. He seemed intelligent, charming and had scored a job working for an LA-based “Nader Raider” automotive product liability lawyer who boasted a string of six and seven-figure trial verdicts.

It wasn’t too long, however, before it became clear to everyone on our side of the fence that this associate had something of a . . . reckless relationship with the truth. Not only did he make calculated and blatant misrepresentations to our judge, but every telephone call or conversation with him was followed by a letter purportedly “confirming” several things that were either not discussed or never agreed upon. From this lawyer I learned how precious is a lawyer’s reputation for honesty. It is an undeserved gift; one that we must never squander.

Sometimes the way an opponent practices forces us to confront our intuitions about whether something is ethical or appropriate. We learn from this, too. For example, I am presently litigating a civil case against a pretty seasoned lawyer who spent the first half of his 35+ years practicing criminal law. There are numerous “independent” witnesses in our case—witnesses who would not be expected to have any inherent bias in favor of one side or the other. We’ve just wrapped up a long string of depositions, including several such independent witnesses. During these depositions, it has become clear that my opponent has gone out and met in person with every single witness in anticipation of their deposition. In some cases he literally spent hours with them preparing for their deposition.

Undoubtedly, readers will have different views on whether this is appropriate. There is another party in our case and its lawyers are adamant that our opponent’s behavior is the worst kind of slimy. And I’ll admit that my initial reaction was not positive. But after serious reflection, I’ve come around to think it’s not necessarily inappropriate, and could in fact be a prudent thing to do in some circumstances. It obviously leaves the witnesses somewhat vulnerable to cross-examination (“Now, how long did you spend with Mr. So & So preparing for your deposition today?”). On the other hand, my opponent knew before we went on the record what the witness was planning to say, and he could tailor his examination to capitalize on positive aspects, while anticipating and diffusing negative testimony.

I realized, too, that while this kind of interaction with independent witnesses might seem unusual in civil litigation (it is more common to interview witnesses through the medium of a third-party investigator), it is the most natural thing in the world in criminal law, where my opponent cut his teeth. After all, depositions and other prior testimony are rarely available in criminal trials; an interview is often the only way to know what a witness will say before he/she takes the stand. So, while I try to learn something (or a bunch of things) from every case, I also make it a point to try to keep my eyes open and learn something from every lawyer I’m up against.

I’ve discussed here and here the wonderful primer on trial advocacy Lee Horton gifted to me before he retired. In his discussion on opening statements, he says this:

“In making our opening statement, don’t try to be something you are not. While it helps, you do not have to be a great orator to give an effective opening statement. Practice giving your opening statement until you can closely track your written statement with only a few strategic notes. Emphasize the key points with voice inflection and, where appropriate, by the use of an exhibit, reading a small portion of a deposition, showing a video excerpt or drawing a diagram. Most importantly, be sincere and to the point. If the jury finds you make your points and sit down, they will listen to you because they will grow to expect that the points you make will be important.”

I find this to be solid advice for two reasons. First it acknowledges a truth: that many trial lawyers are not naturally gifted speakers. We obviously come to the profession from a variety of backgrounds, some of which might have included training and/or practice in public speaking. But many of us had only minimal training and experience in persuasively presenting information to an audience of 6-12 before we passed the bar.

The good news is you don’t have to have been born with the gifts of a Cicero, a Churchill or a Kennedy to effectively try and win cases. What is important is that you present the information in a way that both engenders trust and permits the audience–the jury–to follow along.

The other reason Horton’s advice is so valuable is because it highlights how we gain trust from jurors by making only the most important points each time we speak. There’s only a limited window that most of us will pay attention and follow a lecture. Don’t squander that window of time with facts that are not crucial to winning your case. As Horton notes, if you follow this practice from the start, the jury will trust you not to waste their time and attention. Again, “they will listen to you because they will grow to expect that the points you make will be important.”

Big revelation: I was never a model associate. Despite my present willingness to freely dispense advice on how to make your career all that it can be, I was pretty consumed as a young lawyer with setting and adhering to strict boundaries and trying to maintain a work-life balance. While I was relatively efficient with my time and regularly achieved solid results, I never set any records for billing massive hours or being the earliest to arrive or the last to leave the office. My stats were underwhelming, at best.

I recognize now that, in my preoccupation with boundaries and balance, I was just delaying the inevitable realization that ours is just not a profession that conforms well to individual desires for boundaries and balance. We’re in a service industry, and we’re forever beholden to both clients and courts. Both are demanding. Without either, we’re sunk.

Although it’s technically possible to “skate by” as a young lawyer like I often did, there comes a time when reality catches up to you. Once you develop your own clients and cases, you suddenly realize there is no longer a safety net–the buck stops with you. You’re no longer worried about disappointing a partner with the quality of your research or writing in a memo or a brief. Instead, you’re worried about losing the case or the client, or both.

I’ve spent the past decade or so learning to adjust to this new reality. It was harsh at first, a little bit like my experience as a Southern Californian visiting Alaska in January for depositions. But I’ve evolved and actually developed some strategies to cope with the sturm und drang that is inevitable in an active litigation practice.

Recognize It’s Cyclic

The first step I’ve found useful is to be objective and recognize that, for most of us, episodes or periods of extreme stress tend to be cyclic. There will be demanding times and slow times. When I find I’m in a particularly demanding period, I remind myself that this will at some point pass and life will return to normal. At least my practice is cyclic and I know there will come a time when I’m slow again and hungry for excitement. If you are reading this and shaking your head, “no, there’s never a break,” then I think you might need to take a look at changing how you manage your professional life. Seriously.

Communicate With Those Close To You

I’ve only had the experience of being married to another lawyer. But if your spouse or significant other is not a lawyer (or even if they, too, practice) it can be challenging for them to comprehend the extreme stress we experience when we are preparing for trial, or are in trial, or are just too friggin’ busy. Communication can be key to making it through these periods. Even if you bore your family to death describing what you’re working on, they will appreciate being included and better understand the challenges you’re facing and the stress you’re under.

Get Outside And Get Some Exercise

Speaking for myself, the first thing that seems to happen when I go into “lockdown” mode is that I forget all about exercise or diet. I tend to be chained to my desk and I give in and eat a lot of crap I generally avoid when I’m more in balance. If I don’t actively force myself to get outside, I’ll pass several days sitting at my desk, only venturing outdoors long enough to get to and from my office or pick up lunch or dinner. Really unhealthy! I’ve learned, however, if I set my iPhone alarm to go off at 3 in the afternoon, I can force myself to leave the office and walk for at least a half hour. This not only provides a break with some mild exercise, it reminds me there is a world outside  that hasn’t stopped spinning just because I got busy. This small slice of exercise, daylight and reality can be refreshing and helps me not to be so irritable about being so busy.

Look On The Bright Side

Although I’m stressed and missing my family and chained to a desk getting fat, I actually find that our profession is most exciting and rewarding to me when I’m either in trial or getting ready for a trial. There’s something about this time, when a case is (hopefully) starting to really come together and make sense and we are nearing the point of no return that I find stimulating. I try to appreciate these times and, again, remind myself it’s all cyclic and before too long things will slow down and return to “normal.”

(I so wanted to accompany this post with a still photo from the scene in Training Day in which Denzel Washington, wielding a sawed-off shotgun, tells Ethan Hawke’s character, “You know I’m surgical with this bitch!” Sadly, I couldn’t find a good still from that scene, so I used this lame stock photo instead.)

I’m a big proponent of serving written discovery that is “surgical,” that is, as narrowly drawn to fit the facts of the case as I can make it. Why? First, because I am a lawyer, my time is expensive. I don’t like to waste my client’s money writing discovery that is not likely to yield anything of value. But it’s not just that.

Drafting and serving unfocused and overly broad discovery will lead, in most instances, only to objections (“Overbroad!”) and, even if there are substantive responses, chances are they’ll be weak and of little value. As I’ve earlier written, you and your client should almost always “go to the mat” if necessary to obtain complete discovery responses. This means time spent reviewing the crappy objections and responses, writing one of those spectacularly painful “meet and confer” letters, getting a spectacularly painful letter in response, possibly writing another and/or having an unpleasant telephone call, followed by a motion which you may or may not win because the discovery was crappy and overly broad in the first place. All of this is time-consuming and, therefore, expensive for your client. In most jurisdictions, moreover, the court has discretion to force the party who loses a discovery motion (which could be you) to pay the other side’s attorney’s fees. Ouch!

A second reason I try to make my discovery surgical relates to how I want to be viewed by my opponent. While there are certain times when, for strategic reasons, I want my opponent to view me as unsophisticated and/or unprepared, I usually desire to instill the opposition impression. Nothing shows I haven’t a clue more clearly than 100 unfocused interrogatories, most of which skirt the real issues in the case. On the other hand, well drafted discovery shows not only that you know how to practice law, but also that you know what facts will win or lose the case. If your opponent happens also to know what she is doing, she will take you more seriously throughout the case, including at important times like when you are mediating or discussing settlement. If, on the other hand, your opponent is a lawyer who has gotten in over his head, recognizing that you know what you are doing will make him that much more eager to resolve the case before trial. Fear of submitting a case to judge or jury can be huge leverage.

So that’s my spiel for why it makes sense to serve surgical discovery. What about the how? A couple of ideas. First, it should be no big mystery at the discovery stage what the major theories of liability or defenses will be. I recognize we often refine theories and defenses based upon what we learn in discovery, but the complaint and answer at least frame the case in a general way. I like to take the jury instructions for the theories and defenses and draft discovery that seeks facts (and documentary evidence) that will support or defeat each element of a cause of action or defense. I recognize this isn’t revolutionary, but it works.

In addition, I like to involve at least some of the expert witnesses who will ultimately consult and, potentially, testify on behalf of my client as early as I can in the case. By meeting with these experts earlier than later, I can understand the technical issues likely to be in dispute. I may involve the expert in drafting discovery requests that are likely to yield meaningful information. I recognize that involving an expert early in the case can be costly. On the other hand, early expert involvement can ultimately save your client money in lots of different ways, starting with drafting useful cost-effective discovery, and including explaining earlier than later how the case you and your client thinks is so good actually sucks on a technical level.

So, go on, be surgical with that . . . er . . . interrogatory.

I asked several top Southern California mediators I know personally or by reputation to share their best “tip” for success at mediation. In exchange for their labors, I promised the prestige and notoriety of being featured on this humble but aspiring blog. Several neutrals cheerfully responded and provided some great tips. The following are the best 6 responses I received:

Jeff Kichaven (www.jeffkichaven.com): “Prepare, prepare, prepare.  Get your brief to the mediator a week before the mediation.  Give the mediator time to read it, think about it, read it again, and call you to discuss it.  That phone call – 10 to 20 minutes at most – can be the most important time in the whole mediation process.   Be sure to discuss:  (1) What are your biggest challenges in the mediation?  (2)  What are your expectations of the mediator?  (3)  What should the mediator know about the personalities of the participants?  (4)  Is an Opening Joint Session a good idea?  And, (5), What should happen if you or the mediator think that the other has a “blind spot” or just doesn’t get something?  The answers can vary widely from case to case!  Once the mediator knows your thinking on these subjects, he can prepare for the “people issues” as thoroughly as he can prepare for the legal and factual issues.  The mediation will be specially designed to meet your needs, and the needs of your client, in this particular case.   This kind of preparation will help get the mediation off on the right foot, and almost always lead to greater client satisfaction with the result, with the process, and with your performance as counsel.”

Mark Loeterman (www.mlmediation.com): “Information translates into power, both in litigation and at mediation. The careful use of information is an integral part of your bargaining strategy. At the outset, it is important to plan what information you need to obtain from, and provide to, the other side so the parties can have a meaningful negotiation. Lawyers are guarded about the information they reveal. They fear giving up some advantage or losing the opportunity to surprise an unsuspecting witness. Here are some practical steps for handling information most effectively. First, solve the information gap. Ask the other side questions that are designed to buttress your position or better evaluate risks. Next, consider offering discreet information which shows strength and confidence in your case, such as an analysis of damages or a case citation that supports a decisive legal principle. On the other hand, negotiators must understand how they can protect their most important and sensitive information. If you want to learn how to perfect these “blocking” skills, simply watch a politician being interviewed. Adroit politicians use a range of techniques to avoid answering even probing questions. Information is a valuable commodity. Thoughtfully timing and presenting select pieces can yield significant concessions from your adversary. The mediator can arrange an exchange of information that is orderly and reciprocal, and can clarify the positions being taken, assuring that no party feels vulnerable and manipulated by a one-way disclosure.”

Michelle A. Reinglass (www.reinglassadr.com): “Some parties have difficulty giving up their lawsuit. If asked, “Are you ready to settle and put it behind you?” they may answer “yes”, but their actions belie that. The plaintiff may have difficult letting go of the one thing that has kept him/her going-the chance to get redemption, or revenge. The defendant may not want to let go because of the fear of looking weak, or setting precedent (despite promises of strict confidentiality with “teeth” for a breach). Fortunately most cases do settle, but for those that can’t, I follow them until the “end”, which is too often predictable. So, how can a party going to mediation wean themselves away from the lawsuit? First is getting reality checks about the merit, value & risks of their position. For most that will require “processing” to reach that understanding. Second, is seeing the positive picture of their life without the lawsuit as a major part of it, draining (more like “sucking out”) their energy and good health. It helps to focus on their positive goals beyond “revenge”, giving themselves their own redemption, not relying on someone else such as a judge or jury, to give it to them, which will often be disappointing; or focusing on getting a job, or performing better in their personal and business lives, or putting their energy back into running their business without employees distracted by depositions , “gossip”, or their own fears. I have often said that litigation is negative energy. I enjoy mediating for the opportunity to bring people and businesses back into the positive energy of life, rather than the drain of a lawsuit.”

Jan Frankel Schau (www.schaumediation.com): “Be prepared to be flexible. You can’t map out your strategy until you know what or who is driving the conflict, what path will work best for an exchange of communication and until the necessary emotion and anger and disappointment is expressed–to somebody–even if indirectly to the other side of the dispute.”

Mike O’Callahan (www.mocadr.com): “My single best tip for a successful mediation is for counsel to budget and make time and properly prepare for a pre-mediation call with the mediator. The call is independent for each party involved in the litigation and lets them know you have read their brief and you can question specific areas without the posturing that some lawyers feel they must do in front of their clients. Too many times counsel submit their briefs less than 5 days before and throw something together at the last-minute or they send a 160 page brief the night before the mediation. Either way the brief is not very useful. An opportunity missed to educate the mediator by counsel. The mediator has to be proactive and make sure the parties know there is a deadline for the briefs to be submitted that will allow the mediator time to review before the pre-mediation call. The call can then be used to determine what, if any, settlement discussions have taken place and the potential range of exposure for the parties before they walk in the door for the mediation. Also, it allows the mediator to ask for supplemental information before the mediation and focus on common ground to form a global resolution at the mediation.”

Hon. Michael A. Latin (ret.) ([email protected]): “The mediation, though designed to bring the parties together, is still part of an adversarial process. Therefore, appear fully armed and loaded with all of your ammunition. Bring all of your critical reports, documents, deposition transcripts, and even a critical witness if necessary. Remember, that while you have been living with this case for a year or more, the mediator has very little concrete information when the mediation begins. Often, the two sides give completely opposite versions of the state of the evidence on the same issue. One side may be more truthful than the other or there may be information gaps that prevent one or more parties from making a fair evaluation of their case. If the mediator doesn’t have anything tangible in front of him or her to evaluate the relative strengths of the parties’ positions or representations, resolution becomes problematic – particularly where one side is either incorrect or misrepresenting facts. Give the mediator the tools to flush out those issues during the mediation by bringing everything you have in your possession that may refute misrepresented or contested facts. This includes documents and information that has not yet been turned over. Your opponent cannot evaluate those things about which he or she is unaware. I have had several cases that have settled because one side, which had information about which the opponent was unaware, decided to share the information at mediation. Appear with all your ammunition!”

Even though you tuned in to hear from experienced mediators, I’ll add my own three cents. First, I completely agree with the suggestions that counsel take advantage of the opportunity to have a meaningful pre-mediation call with the neutral. This can be HUGE. Second, if there is a way to create and communicate to the opposition the illusion that you are fully prepared to start trial tomorrow, this can create leverage. (Obviously this is not possible in a pre-suit mediation, and difficult if there’s no joint session.) Third, unless and until you really know and trust the mediator (or settlement conference judge/magistrate), I would resist requests to prematurely share your final, bottom line offer or demand. The neutral’s top priority is to reach a compromise, not to act in your client’s best interests (that’s your job); unless you know from experience you can trust his or her promise to keep your final number confidential, I wouldn’t risk sharing it.

My college roommate and Venture Capital Badass Mark Suster maintains a well-respected VC blog, Both Sides of The Table. He recently quoted some advice his wife, Tania (brilliant, beautiful, Wharton MBA, ex-consultant, serious media chops), gave to a friend who was starting his first real job. I have no idea what kind of job. As I read it, however, I couldn’t help thinking it was the kind of sound advice we all wish we’d received (and, more importantly, followed) when we were brand new lawyers. I can’t resist sharing it. With kind thanks to Tania and Mark, here’s what she said:

Secrets of the real world – stuff I learned the hard way

General Advice

1. Don’t expect constructive feedback without asking directly for it. Most businesses have formal programs in place to give you feedback. Most bosses are too busy to put in the real effort to help you. Many just ask you to fill out the forms for them. It becomes more administrative than constructive. If you ask for feedback in a pleasant, non-defensive way you will likely get it.
2. You won’t really have a mentor unless lightning strikes. But if you seek one out, most talented employees would gladly become your informal mentor. This can be your most valuable career management tool so use it. It can be a great way to build advocates that will move mountains for you in the future.
3. People won’t communicate expectations clearly (you must ask, clarify, ask again). Knowing the expectations of your senior employees (and peers) is invaluable to your success and asking people’s expectations is the clearest way to get them to think about it in the first place. The easiest way to beat expectations is for you and your boss to agree them two-ways and check on progress periodically.
4. Constructive criticism stings, but we all need it. So seek it out, push for real feedback and be open to hearing it whether you agree or not. If you’re defensive you’ll never get real criticism. It’s much easier for your boss to avoid the confrontation or putting the time into thinking through what you could do better.
5. Don’t overly rely on HR. Make your boss and her boss your primary allies. Your career is best navigated though line managers. HR should be able to manage the sensitive information you give them separate from your line managers but in my experience they do not so be careful. They are not your free psychoanalysts.
6. Show up early. You may be a morning person – you may not. But nothing gets noticed more than which employees constantly turn up late. Even if bosses say they don’t care – they do. Nothing tarnishes your reputation more quick than being THAT person. The one always slipping in late.
7. Be humble. Nobody cares where you went to school or how great of a student you were. Get over yourself. Don’t be arrogant. Don’t try to act like a managing partner from day 1. It’s OK to be junior. Nobody expects you to be managing the whole division. In fact, they’ll resent you if you try to act like you are.

Working with Your Boss

Sit down with your boss asap and tell her you want to do an amazing job. Ask her:

• What could I do to exceed your expectations? What have past employees done that made your life much easier? What tips would you pass along from the most successful employees who have had this job?
• What is the worst thing I could do in this job that you want me to avoid?
• Whom should I emulate? Who is great in this role that I should learn from?
• How can I best help you?

What to do in Your First Weeks

• Interview your peers, people in your role/team: set up a meeting and ask them same questions as above, plus:
• How can I best work with my boss, what does she love/hate?
• What mistakes did you make that I can avoid?

What is Your Job, Really?

• Your job is to make your boss’s job easier – to help your boss succeed.  Always have that in mind even if it’s not in your immediate job description
• NEVER bring your boss a problem without bringing him a few potential solutions. Be associated with problem solving, not problems, it creates a positive halo around you
• Say “yes” to work even when don’t want to. Everybody loves employees who take on projects with enthusiasm. The world is filled with people who sigh when assigned work.
• BUT if you do become overwhelmed with work it’s ok to say “I need your help prioritizing my tasks because I have too much on my plate.”  Make it a positive thing. The worst thing is to take on too much work and under-deliver.

Other Notes

• Schedule in your calendar and in your bosses calendar a few check in meetings and ask for feedback and make it a formal conversation. Prepare them in advance by providing a list of the things you’re working on developing and tell them you’d love feedback on how to improve at those things.  You might want to preface with ”I want to learn how I’m doing so I can improve, please give me constructive criticism!” Mostly you don’t want them to feel like these meetings are obligations, reasons for hours of preparations or ways for you to be defensive about your job.
• So take the feedback on and don’t get defensive. The more you get positive measurement on your work the more likely your boss will be aware of it at the annual review time. Make sure to thank you for his time (he is likely busier than you are, after all!)
• After you feel stable in your role and with your relationship with your boss – make sure to get to know your boss’s boss. Don’t let your boss love you but his boss not know who you are! This WILL come in handy in your career but you have to manage this cautiously.