(323) 652-9451(805) 845-1752
(323) 652-9451I used to think it was a worthy skill unique to litigators: the ability to be harsh and aggressive when it seemed appropriate in the course of representing a client (in a deposition, for instance), but turning immediately friendly and professional as soon as we’d gone off the record and there was no question or objection pending. After all, didn’t it show that, as lawyers, we were in complete control of our emotions when we could turn our temper on and off, like John McEnroe at a Wimbledon final?
I’ve come to think differently now. I just finished a deposition with a crusty older litigator and I found his penchant for blowing hot and cold disconcerting. I was not doing the questioning, but while we were on the record he would make frequent, loud outbursts at the female lawyer conducting the deposition of his client. She, too, was seasoned and seemed unfazed by his temper, though she did ask him a few times not to yell at her. When we took breaks, he would almost instantly turn cordial, asking her where she lived, about her kids, etc. She played along, as though such vacillation of temperament was the most natural thing in the world.
The rules of ethics and most judges expect lawyers on both sides of a case to treat each other with “civility.” Are loud, threatening outbursts transformed into civility just because we change from bad cop into good cop when aggressivity is no longer called for? I don’t think so. Certainly there are going to be times during a deposition, negotiation or even a hearing when zealous representation calls for us to “kick it up a notch,” and establish a line we don’t expect will be crossed. But I doubt the experienced lawyer making the loud outbursts during the deposition would have behaved the same way during a trial–even a bench trial. So, why should he behave any differently just because there’s no judge or jury present?
I’ve been guilty of this in the past, though I always found it more difficult to instantly change from nasty bad cop to friendly good cop. When our communications turned cordial, I usually felt inauthentic. At the end of a full day of this, I was invariably exhausted. I still get riled sometimes, but I try (not always successfully, I admit) to maintain civility even when I feel my opponent is being unreasonable. I suspect, though I have no evidence to back it up, that litigators would live longer, happier lives if we could just cut out the vacillation between hot and cold and just treat each other civilly all the time instead.
Learn MoreAn article in the June issue of For the Defense offers guidance on selecting the best mediator for a particular case. Among the different styles of mediator (evaluative, facilitate, hybrid), one that is often overlooked is a style denominated as the “transformative” mediator. Why is this style disfavored? I decided to dig a little deeper.
According to the oracle of all truth, Wikipedia, “the transformative approach . . . takes an essentially social/communicative view of human conflict, [in which] . . . a conflict represents first and foremost a crisis in some human interaction—an interactional crisis with a somewhat common and predictable character. Specifically, the occurrence of conflict tends to destabilize the parties’ experience of both self and other, so that the parties interact in ways that are both more vulnerable and more self-absorbed than they did before the conflict. Further, these negative dynamics often feed into each other on all sides as the parties interact, in a vicious circle that intensifies each party’s sense of weakness and self-absorption. As a result, the interaction between the parties quickly degenerates and assumes a mutually destructive, alienating, and dehumanizing character.”*
This all very Heideggerian and existential, but will it settle cases? Well, it seems that may not be the only goal. “Success is measured not by settlement per se but by party shifts toward personal strength, interpersonal responsiveness and constructive interaction. As parties talk together and listen to each other, they build new understandings of themselves and their situation, critically examine the possibilities, and make their own decisions. Those decisions can include settlement agreements, but no one is coerced into any decision or agreement. The outcomes are entirely in the parties’ own hands and subject to their own choices. Effective mediator practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging party deliberation and decision-making, and inter-party perspective-taking, in various ways.”*
There might be something to this. In my experience mediating disputes that are particularly emotionally charged, attorneys can walk away quite satisfied with a clean, buttoned-up settlement, but the parties themselves come away feeling they “sold” their case too cheaply (or “bought” their peace at an unfair price). Mediations that dispense too quickly with the “heart” of the dispute and rush into exchanging dollar figures based purely on estimates of damages or jury verdict potential can leave plaintiffs feeling like they haven’t been heard. While a fat settlement can sound appealing, it usually won’t heal all wounds. This is particularly true in catastrophic cases involving the loss of a loved one or legitimate sexual harassment suits where the plaintiff feels he or she was just “bought off,” or paid to shut up.
Other cases can be difficult to settle where (1) there is no real money available to fund a satisfactory settlement; or (2) there are residual questions that need answers money can’t buy (“What caused the car to catch on fire?” or “Why wasn’t he fired long ago if others complained?”) Taking the “usual” approach, focusing purely on dollars and cents, might not get the job done. In these circumstances, it can be very healthy and helpful for the mediator to engage in the kind of counseling approach unique to transformative mediation. I’ve also been involved in cases (some very serious) that went away with no exchange of money where the defendant’s counsel or a knowledgeable employee took the time to explain to grieving parties exactly what happened and how it happened. Plaintiffs may want most of all just to vent frustration or anger. A party that feels he/she has been finally “heard” can be more reasonable, making it possible to settle an otherwise impossible case to settle.
Transformative mediators certainly are not appropriate to every dispute. For example, when I’ve accompanied very skilled or sophisticated client representatives to mediations, they look for ways to control the negotiation process, and can be incapable of suspending the factual or legal controversy long enough to permit a wounded plaintiff simply to be heard. They want only to drive home the point that the plaintiff is wrong and she will lose at trial. In this environment, neither the plaintiff nor the defendant will believe their needs are being met and compromise becomes unlikely.
* Citing, Bush, R. A. B., & Pope, S. G. , “Changing the quality of conflict interaction: The principles and practice of transformative mediation,” Pepperdine Dispute Resolution Law Journal, 3(1), 67-96.
Learn MoreIn the last post I talked about the concept of a “managerial” judge. Some have suggested that having an overly involved or controlling judge may not be a good thing. Having litigated several cases before micro-managing judges over the years, I’ve come to believe that, in most instances, my clients will tend to benefit from our case being assigned to a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution.” Here’s why.
First, parties and lawyers involved in a civil dispute need someone to take charge and crack a whip. Picture, if you will, a giant sandbox filled with sand toys. In each corner there is a 3 year-old who is told by his/her parent to “do whatever it takes, but be courteous” to capture all of the sand toys. The ensuing exchange among the toddlers–admonition to “be courteous” notwithstanding–would soon turn ugly. This is what many lawsuits turn into, despite the involvement of lawyers who are reputed to be educated, ethically duty bound professionals. Without a strong, hands-on judge, a dispute over the breach of a contract will too often turn into the equivalent of a toddler sandbox fight. Even with a strong judge lawsuits frequently devolve into bare knuckle brawls. (I still have bruises.)
Second, I find that hands-on, managerial judges tend to be more consistent in their rulings than judges with a more laissez-faire style. It is much easier to plan and execute strategy when you know how your judge typically handles a particular issue. Managerial judges often issue their own set of rules regarding how they want pretrial matters handled. Get these rules and follow them religiously! You will likely remain in pretty good stead with the judge. In fact, following a managerial judge’s rules is a great way to gain an advantage over a disorganized opponent who fails to strictly follow the rules.
Finally, managerial judges tend to put a lot of energy toward settling cases. A laissez-faire judge will allow a case to take its own course and the parties to enter settlement negotiations whenever they feel the timing is right. This is almost always in the days or weeks just before trial. The problem with this approach, and the reason a managerial judge is better in my view, is that parties can save a lot of fees and costs if they are forced to explore settlement earlier. Also, when cases settle earlier it helps free the clogged courts. This, in turn, allows other cases to get to trial (or otherwise resolve) sooner, which gives judges freedom to give more individualized attention to their dockets.
Make no mistake, appearing before managerial judges can be difficult. They develop and impose their view of how the case should progress and the parties go along for the ride. On balance, however, I think there are benefits to a heavy-handed judge which outweigh the difficulties, and I’d pick one over a hands-off, laissez-faire judge any day.
Learn MoreFew would argue with the suggestion that a crucial skill for any lawyer who makes a living helping clients resolve disputes is the ability to persuade. Anybody can look up a case. And, while novel arguments or clever strategies can enjoy a certain symmetrical beauty, the ability to persuade, to sell, is ultimately what separates a good or great lawyer from the merely adequate. To this premise, I would add that the ability to write, to string together sentences in a clear, articulate and persuasive manner, is the most crucial skill of all and one clients should absolutely insist upon.
Why is writing such a critical skill to our trade? Conceptually, persuasive writing doesn’t just require a command of language, it compels organization. Even a point delivered orally requires a structure, if it is going to persuade. Clear writing always embodies this structure. It reflects the ability to conceptualize and frame an argument. Like the frame of a house, a clearly framed argument helps guide the reader—often a judge—follow on the journey to the desired conclusion. It lays a firm foundation for the real magic which, in the context of the law, is the synthesis, or interweaving, of evidentiary facts with a governing rule. There is no substitute for the ability to organize and frame an argument.
In modern civil disputes, it is always a written instrument—a complaint or claim—which sets a case in motion. While it’s certainly possible to win a massive verdict or coax a settlement out of a case premised on an inartfully drafted complaint, the complaint frames the issues, sets the tone of the case, and introduces the parties and their lawyer. If the complaint is sloppy, exaggerates or overreaches, it underwhelms both the judge and the lawyer on the receiving end. The judge may become prejudiced. Equally important, there can be a subtle, almost imperceptible, shift in the balance of power between the opposing lawyers. Respect between counsel must typically be earned; it is rarely presumed.
Most crucial of all, ask any civil trial or appellate judge and you will hear that, in all but the rarest instances, an argument is won or lost on the quality of the papers. This is not to discount the importance of having favorable law or facts. But good law or compelling facts are worthless if your lawyer has not articulated them in a clear and persuasive manner.
Clients should demand their lawyer have impeccable writing skills!
Learn More
