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Image Description: Chris Trebatoski speaking at the Clio Cloud Conference.

WHY GREAT LAWYERS MUST BECOME GREAT MEDIATORS

“A good lawyer makes a living, a great lawyer makes a difference.” Preet Bharara – September 26, 2017.

With our society mired in fractionalized discord. When people can no longer talk with each other. When positions replace interests. When no matter what happened, my view is superior to yours. When disruption and innovation lead to great wealth and permanently displaced workers.

It is time for great lawyers to step up and make a difference.

Until some form of balance is restored in our system of justice, great lawyers must, even at great risk to their comfortable lives as lawyers, step up to play their part in transforming the fractures that exist. 

Mind you, this will not be easy. With every tweet or Facebook post or just simple bar room chatter that espouses or encourages rancor. With every effort to suppress discussion of important issues through dismissal of opposing points of view. The task of restoring faith in any institution is weakened. 

Institutions are nothing more and nothing less than the sum total of the moral compass and integrity of those within the institution. 

When the momentum of “change” is to foment discord rather than to find commonality. 

Institutions suffer. 

Individuals suffer. 

Justice becomes a word without meaning rather than a result worthy of being sought. 

Backlash results from suffering of individuals and institutions. Backlash that makes the pursuit of justice ever so difficult. 

It is easy to take a position – even a position not supported by the facts. 

It is easy to write a fuck you letter – all good lawyers are experts at writing those letters. When has a fuck you letter actually worked to obtain a result – in reality – never. 

Presenting facts that are real and believable and advancing arguments that are principled is hard. Sometimes really hard. 

That is what being a great lawyer is all about. Rejecting the petty. Rejecting ad hominem attacks. Rejection the knee jerk reaction of fuck you communications. Refusing to present positions that have no basis in the law regardless of how much money someone is willing to pay. 

For all of those reasons, our society needs great lawyers to become great mediators. 

The justice system is in turmoil based upon disruption and discord. That is not good for anyone. Once way that great lawyers can help to restore faith in the system is to serve as effective mediators to allow individuals and companies to find solutions that are in their interests without sacrificing principles.

 Principled mediation can provide a bridge over the disruption and discord in society today – a bridge that provides access to justice, restores faith in the institution of justice, and restores trust is lawyers. A pathway back to a system where the rule of law is principled and not partisan – a system where faith that the results of disputes in society will be resolved in a just and accessible way. 

This will not be an easy transition for great lawyers. Even a great lawyer cannot simply read a book and become a great mediator. Great lawyers will need retraining and retooling to become great mediators. The time for that transition is now. Transformation of the justice system for good cannot occur without that transition. The transformation will start slowly at first but gain momentum with every great lawyer who chooses to make the transition for the purpose of making a difference. 

How will we know that transformation is occurring? We will see more and more “principled mediation.” 

Principled mediation does not exist in the mediation of forced or imposed settlements. Forced or imposed settlements are the antithesis of principled mediation. 

Principled mediator is not achieved through disparaging attacks on the positions of the parties. 

Principled mediation is not achieved through mechanical evaluations of legal arguments or factual belief or through shuttling of offers. 

Rather, principled mediator is achieved when a skilled practitioner uses probing questions and creative approaches to peel back the layers of discord and disagreement to find commonality based upon interests that are either common or interests that can harmonize to create a result. 

Through the process of principled mediation, the parties to a dispute can see the interests of the other party and understand the basis for the dispute. 

Only then, can the parties without the gloss of advocacy for the sake of advocacy, evaluate, or with the help of the mediator, the true implications, expense and collateral damage, of pursuing the dispute. Only then is does the value of resolution of the dispute arise out of the fog surrounding and arising out of disagreement. 

At the end of the process, the parties choose to either reach a resolution while maintaining their principled positions or to continue their dispute with a better understanding of the ramifications of the course they choose. Both results are positive and support the pursuit of justice. 

When great lawyers take on this challenge – Society benefits. 

Even the most expensive mediation is less expensive than trial – with far less collateral cost and damage as an added benefit. 

Society benefits because if pre-dispute mediation is available, justice becomes more accessible for those who are afraid of the costs of the system or simply unable to afford the costs of the system. 

Greater access to principled dispute resolution restores faith in the institution of the justice system and the pursuit of justice itself. 

There are no easy answers. 

No single answer solves all of the problems we face. 

Transformation Based Upon Inclusion

Image description: Chris Trebatoski and Haben Girma dancing at the House of Blues in New Orleans. Chris and Haben are in the process of completing a dance move known as a wrap turn. Their fingertips are touching to guide the turn. Both are smiling and enjoying the dance.

Post Text: At typical conference of lawyer conference cynicism is palpable. The typical legal tech conference is no different with the exception of frustration permeating the cynicism. 

Neither existed at the Clio Cloud Conference in New Orleans. I knew that would be the case before I even arrived. This was fourth time that I attended the conference presented by the Clio the software that I use to manage my law practice. 

Clio’s software has provided a platform for me to grow my firm and to provide a superior client experience to those that I provide legal services. 

This year positive energy was palpable. You see, the Clio team decided to redesign their platform from the ground up. The primary purpose of the redesign was to improve lawyer’s ability to deliver superior client service. Their mission “Transforming the Legal Profession, For Good.” To do that requires not only providing the best practice management tool for lawyers, but also the best platform from which lawyers can provide superior client experience. 

The software and integrations certainly provide both and will only become more powerful over time. 

The software is an amazing platform – the conference transforming. 

One reason I attend the conference every year is that my practice and my ability to provide legal services of the highest level depends upon discovery of the most innovative approaches available to solving problems. Every year I have found and implemented new and innovative solutions based upon presentations and keynotes from the Clio Cloud Conference. 

This year the solutions, inspiration and opportunities presented were so innovative and thought provoking that when I left the conference to return home I was exhausted mentally and physically. 

Exhausted but energized and inspired like never before. 

The most energizing and inspirational experience I had was one I could never have imagined possible. It began with the morning keynote speaker on the second day of the conference – Haben Girma. The first student to graduate from Harvard Law School who is both deaf and blind. 

She had the toughest speaking slot at the conference. The first speech on the second day after 1,200 lawyers had spent the night before partying in New Orleans. 

Her speech was the personification of transforming the legal profession, for good. 

Her life story is inspirational. 

Her style is humble and powerful. 

Her example defies explanation. 

As Haben spoke of the importance of inclusion of those with disabilities, important as she demonstrated because of what society misses when inclusion does not occur, she showed us a video. 

A video of Haben dancing Salsa with two different partners. 

The video was extremely powerful for me. You see, my wife and I are competitive Salsa dancers. We finished third in the world in the over 40 competition for amateur-amateur choreographed showcase at the World Salsa Summit. 

What I saw in the video was Haben executing perfect salsa dance movement dancing with a partner free style – no choreography at all. For those who dance Salsa, that is difficult for someone who can both hear and see. Haben was magnificent without being able to either hear or see. 

Haben explained that she was able to dance because she could feel the rhythm of the music through the body movements of her partner and the step patterns based upon being able to feel the movement of the body position of her partner. Her description is precisely the way that the best dancers in the world dance. 

That evening the conference had a networking and celebration event at the House of Blues in New Orleans. My wife and I met and talked with Haben that evening. (The way one talks with Haben is to keyboard there portion of the conversation through a keyboard that is attached via blue tooth to a machine that coverts the keyboarding into braille. Haben responds verbally.) I told Haben about our dancing and started to ask her if she wanted to dance that night in the House of Blues. I could not even keyboard the entire question and she enthusiastically said yes. 

 When we approached the dance floor, the entire floor stopped dancing and opened space on the floor. Every eye in the room was on us. The band even stopped for a moment to see what was happening. Haben and I danced three or four songs. I cannot tell you for sure because the dance was so enjoyable that I totally lost track of the time on the dance floor. I did not notice at all that Haben was either blind or deaf. Rather, the connection and experience through the dance was just that the connection of two people in the experience of dance. 

I did notice a change in me. Almost immediately when we started to dance. The weakest part of dance for me is movement in my upper body. For those who have not danced Latin dance, whether it be Salsa, Bachata or Cha Cha, it is may be hard to understand but the upper body movement in the dance is as important as the touch of hands in a lead, the body position in a turn pattern or the footwork involved in the dance. Communication of rhythm and timing of the dance to Haben had to come from upper body movement because that is where the connection would begin. As we danced, I noticed my upper body moved better than it had ever moved before. I am certain that without the experience of dancing with Haben and the understanding of connection and communication originating in both of our bodies I would never have been able to in an instant improve the weakest part of my dancing ability. 

The improvement was so noticeable that my teachers and coaches could see the change in the first practice/lesson after I returned.

In those dances, that night at the House of Blues in New Orleans, I learned just how much we miss if we do not include all human beings regardless of ability or disability. I learned dance movement that I struggled with for years in a few moments on the dance floor with Haben. 

That is a moment, an experience, I will never forget. 

My wife and I will be dancing in competition at the Canada Salsa and Bachata Congress in Toronto this weekend. I will be dancing with a part of Haben with me at every dance. 

My life will be better and forever changed. 

Mediation before Litigation – It works with the right Mediator.

When I first graduated from law school more than thirty years ago, I always viewed the dispute resolution provisions contained in contracts between business partners or businesses with continuing relationships to be a necessary evil to muddle through before the inevitable lawsuit would be filed and a “real” decision would be made. More than thirty years later, I find that many clients still view the dispute resolution provisions contained in their contracts to be a waste of time. After having observed many pre-litigation or pre-arbitration dispute resolution processes I believe that I know exactly why the necessary evil view of dispute resolution provisions is so prevalent. 

The primary reason – bad mediation experiences. Bad mediation experiences occur for two reasons. First, bad mediators. Second, lawyers that get in the way of their client’s expressing the true nature of their grievances thereby precluding exploration of solutions that satisfy the grievance but avoid litigation or arbitration. 

A good mediator can often navigate around the lawyer who gags their client in search of the fees that can be generated from litigation or arbitration. 

A bad mediator – or the wrong mediator for your case – there is no way around that problem. A bad result is practically guaranteed. 

Business relationships sour for many reasons. Some are obvious. Some are not. A good mediator teases out the reason for the relationship failure and seeks to find interests of the parties that can provide a mechanism that the various participants in the dispute may not be happy with but are willing to accept in order to avoid the risks and costs inherent in litigation or arbitration. 

The simple fact is that if the mediator views the only mechanism for resolution to be money – avenues of potential settlement are never exposed. Money issues should not be the first or only issue discussed in mediation. Especially mediation which occurs as part of a pre-litigation/pre-arbitration dispute resolution process. If it does – bad mediation experiences are bound to occur and frequently do. 

Parties in a pre-litigation/pre-arbitration mediation must be given the opportunity to express the true nature of the dispute and their own perception of why the dispute occurred. Only then can positions be separated from interests. Only then can a discussion that may lead to resolution occur. 

Every experience lawyer who has practiced as a trial lawyer or an arbitration lawyer have seen clients that are dug in to a position at the beginning of a case who later grow weary of the dispute or wonder why they got themselves into the dispute in the first place. Settlements frequently occur at that point. However, settlements at that stage of a dispute occur after substantial financial and emotional costs are incurred. It is impractical and sometimes impossible to achieve settlements which include anything other than payment from one party to another or both parties simply walking away from the dispute. Neither is very satisfying from a client standpoint. 

It is incumbent upon lawyers to encourage and facilitate satisfactory experiences in pre-litigation/pre-arbitration dispute resolution. The best way to facilitate a satisfactory experience – take the opportunity seriously, choose a mediator wisely, and explore options rather than rejecting all options out of hand. 

One of the difficulties in this process is the lack of trained, qualified, and experienced mediators. Too often lawyers are left with only mediocre to bad choices. That can be because of the process contained in the contract which encourages disagreement between the parties with respect to selection of a mediator which results in a race to the bottom in terms of mediator’s skill sets. But more often it occurs simply because there is a lack of experience both on the part of lawyer representing a client in that setting and on the part of a mediator whose experience comes from mediations, often court ordered, that occur well into the litigation process. Too few lawyers and fewer mediators are skilled in the process of mediating business disputes in the pre-litigation/pre-arbitration stage of dispute resolution. 

A mediator that mediates in the pre-litigation, pre-arbitration setting must be patient. The process will likely take longer. A mediator in that setting must listen more and speak less – facilitate more and evaluate less. Clients and lawyers must be drawn into the process and see that the mediator cares about satisfying their individual interests while at the same time being realistic about what can and cannot be done in light of the issues in dispute and the interests of all parties. 

The role of mediator in the pre-litigation/pre-arbitration is really important. At that stage in the process, through sifting and winnowing of positions and interests, the mediator stands in the position to have a positive impact on all parties to the process. That is true whether the matter resolved in mediation or not. If the matter resolves, it is the only stage in the process where both sides to the resolution can actually be satisfied with the result – although neither would probably admit it to anyone other than their lawyer or a close family member. If the matter does not resolve, the lawyers and the parties have the benefit of an outside look at their cases and the parties should come away from a failed mediation knowing what they are getting themselves into and why – thereby making a more informed choice. 

Engage in Mediation – Choose an Effective Mediator - Control Risk

I have been a trial lawyer for more than thirty-three years. For the first twenty-seven of those years I trusted every jury I stood in front of to listen to the evidence, follow the judge’s instructions and reach results based upon what was presented at trial. Five years ago, I started to doubt that process. The doubt began when a jury was out for several hours with a simple, one question verdict. When the jury returned, in my client’s favor I was happy for my client. What I heard in the hallway I will never forget. As we walked down the hall toward the elevator the presiding juror approached me and asked to talk with me. She told me, our first vote was 9 to 3 in your favor. “I had to starve out one of the three holdouts to reach what I knew was a just result,” the presiding juror said. “The three would just not participate in deliberations, did not listen to the instructions or the evidence but rather wanted to decide the case without any rational basis.” I later told my client about that exchange. The client was shocked and said, “good thing we had that presiding juror!” That was my first experience with juror anger and discord that is prevalent today. 

With each trial that followed I could see more and more erosion. Unpredictable erosion. The chance of obtaining a jury that was willing to listen and decide cases based upon the law became a matter of luck. When you are unlucky you either get a jury that for a crazy reason rules entirely against your client or a jury that for an equally crazy reason awards ridiculous amounts of money to your client. Justice? Hardly. Today, twenty trials after my first concerns arouse, I am convinced that juries are dangerous dispute resolvers who reach unpredictable and inexplicably wrong decisions. 

My concern is not a conclusion reached from anecdote but one held by a broad cross-section of trial lawyers. See, e.g., “Jury Selection in the Shkreil Fraud Trial Follows Trend of Favoring the Uniformed,” American Bar Association Journal, July 20, 2017. In that article the author posited that “lawyers are seeking jurors who are uninformed as well as unbiased.” The basis for that theory of jury selection? In today’s polarized society, “opinions” or experience “mean inflexibility.” To put it simply, lawyers are concerned that jurors who have opinions or knowledge will not be open to hearing the evidence and deciding the case upon the evidence and instructions to reach their conclusion but rather will rely upon their bias and predetermined opinions to reach their conclusions. 

Our system of justice requires not only jurors that are truly unbiased but also jurors that are flexible enough to hear the actual evidence and trustworthy enough to follow instructions to reach a group decision regarding their verdict. The system was never designed to require jurors who were “uniformed.” In fact, it relied upon just the opposite. Jurors are instructed to use their common sense and life experience to resolve the issues they fact. If a juror is truly uniformed – what life experience and common sense will they have?

Now imagine that you are the CEO or general counsel of a large company fighting another large company over a critical issue. Has the jury system devolved to the extent that companies cannot rely upon jurors to listen to the evidence and decide cases based upon instruction. Unfortunately, the answer is all too often “Yes.” That impacts not only large companies but small companies, families, and individuals who face the need for court intervention to resolve their disputes.

Jury action in cases was always difficult to predict. Lawyers who claim to be able to give clients a percentage chance of winning a case were always fooling themselves and their clients. However, in the past, ranges of results were more predictable based upon jurisdiction and jury experience. That is not the case today.

 Today, whether a case is won or lost and the extent of a victory or loss is tied directly to what jury is seated – the luck of the draw. 

Voir dire, which was a way to control against the pure luck of the draw in the past, is an impotent tool in most cases today. In many federal courts, lawyers are not even allowed to ask jurors voir dire questions. Judge’s conduct the entire voir dire. If you are in that situation voir dire is practically worthless. 

When lawyers are allowed to participate in voir dire, the questions asked are a really tricky subject, It is nearly impossible to know in advance, or maybe to know at all, what questions asked will alienate jurors who will ultimately be seated. It is also nearly impossible to tell when jurors are actually honestly answering questions. Simply swearing in a jury in voir dire is not adequate to assure honest and complete answers. Jurors with any level of savvy know what to say to be struck for cause; they also know what to say to get on a jury. Even if either desire requires some bending of the truth – for what is the truth anyway, right? 

What’s the solution? 

I believe there are three potential solutions. Only one of which is truly usable and effective in nearly any case. They are: 

(1)  In cases that justify the expense and where the expense can be afforded by the client jury consultants have become absolutely critical. Both in the process of mock trials or mock jury selections and in the process of jury selection itself. The cost consultants and mock trials are extraordinarily high and while indicative of results, or illustrative of approaches, do not reliably predict results. A potential solution but of limited application. 

(2)  Trial to the court instead of trial to a jury. That is not always a good option given the judge who is assigned to a case. It is also not always an option as all parties are entitled to make a jury demand. For example, it is common practice in certain jurisdictions for plaintiff’s personal injury lawyer to never ask for a jury, in those same jurisdictions, the defendants always ask for juries. Another potential solution again with limited application. 

(3)  Effective mediation. That is the only solution that can be used and effective in any case. A solution where clients control results and avoid altogether the risk of jury unpredictability. 

Effective mediation requires effective mediators. But how do lawyers and clients choose effective mediators? That is a difficult question to answer. Sometimes mediators are chosen by the judge – sometimes the lawyers make the choice. The choice of a mediator is hard. A mediator that is effective in personal injury cases may not be the mediator that will be effective in a family law or business litigation setting. 

My formula successful mediator selection and effective mediation is simple. Choose someone who has received extensive training in mediation skills. In most circumstances, choose a mediator that is an experienced lawyer rather than a retired judge. Choose a mediator who has the skill and qualities to keep people talking and the creativity to find potential solutions that the parties and their lawyers had not considered. 

Why is that my formula? Extensive and specific mediation training is very important. That is why before I ever offered services as a mediator I took intensive mediation training at Northwestern University. Simply stated, mediators need specific training. Just because someone has practiced law for a long period of time or has served as a judge is not enough. The skills employed by a mediator are learned tools that are enhanced by an individual mediator’s style. Not the other way around. 

Why use lawyers instead of retired judges? Judges have extensive experience in deciding cases. A mediator does not decide issues. A mediator can evaluate the matter before them if that is something the parties seek but for the most part a mediator is a facilitator and the consummate devil’s advocate. Evaluation that comes too early will result in mediation failure. Inability to facilitate or be the devil’s advocate cuts off potential avenues for settlement too early in the mediation process. Lawyers who have tried many cases and argued many appeals are in the position to evaluate when that is necessary but they are – because they have to be to be successful – skilled at facilitation, playing the role of the devil’s advocate, and serving as a persuader rather than a decider. 

Why choose someone who keeps that parties talking? There is often a substantial need for parties in the mediation to express their feelings and to air their grievances. Not through a lawyer necessarily but preferably directly. Once those feelings and grievances are heard and understood, it is fair more likely that the mediator can drive the parties through a combination of facilitation and evaluation toward a settlement that neither party will be likely to be happy with but one that both parties choose rather than continuing down the path toward the uncertain and unpredictable results at trial. 

July 4, 1776: “We hold these truths to be self-evident” Today’s Juries: What is truth?

There was a time – not so long ago – when Americans believed in truth and the viability of American institutions. We can all see from the national political discourse – one cannot call it dialog because that assumes two sides listening to each other – that what was once held self-evident is now distrusted by wide swaths of our citizens. When truth is illusory and institutions distrusted there is a direct and negative impact upon the jury system upon which we so heavily rely to resolve disputes that cannot be settled. 

We should all be worried. The jury system only works if jurors actually believe that truth exists. Juror’s only apply the law as instructed by judge’s if they actually trust the judge and the institution that is represented by a judge. Otherwise the jury system is a risk of devolving into a dystopian decision-making process based upon unfounded and unprincipled fact finding – unpredictable from jury to jury – unfair to litigants, whether individual people or corporations.

The impact of distrust in institutions, particularly the court system, science, and the media has had direct and harmful impact on the way juries function. There are simply too many myths and conspiracy theories held to be the truth by too many jurors for the vast majority of juries to actually make decisions based upon the evidence presented in cases as opposed to what jurors expect the “evidence” to be based upon misinformation generated in social media and the caricatures of lawyers, evidence and the court system that pervades television, theatre and movies.

Let me give you some practical examples from recent experience. After settling a case in the middle of trial, I talked with several jurors who were going to rule against my client, a business, that was a plaintiff in a lawsuit in a small county. The reason – they concluded without any evidence that no business transaction of the nature that we were claiming would ever have occurred without at least seven lawyers representing each side of the transaction. Mind you, Nike was formed and operated on a handshake. What’s worse – the county where the transaction occurred does not even have seven business lawyers – let alone seven per side. 

This jury had all reached their contrary conclusion and incorrect decision prior to the end of the testimony of the second witness before a single lawyer involved in the transaction testified. To do so, the jury obviously must have the judge’s instruction not to talk about the case until after all of the evidence and instructions were given – from the conversation it was clear they were all talking about the case from the moment they were selected as jurors and knew what the case was about. 

Fortunately, in that case, the case was settled in a manner that was favorable to my client. However, if the case had gone to the jury the result would have been a disaster for the client’s business and the local community. 

The actions of two recent local juries have further illustrated the problem. The first jury I heard about by chance. I was playing golf with a lawyer and a friend of his who was an accountant. The accountant had just sat on a civil jury involving personal injury claims. The accident and injury were very significant. The case involved plaintiff who had his feet run over by a defendant who was cutting the defendant’s lawn with a ride on lawn mower. The jury found the driver of the lawn mower 80% responsible for the accident – not an unreasonable result. But when asked if the jury awarded a significant sum to the plaintiff, the accountant said, “that depends upon what you mean by a significant amount.” “We awarded the $425,000 in past medical expenses and the projected additional $25,000 in future medical expenses.” “We awarded a total of $50,000 in pain, suffering a disability.” An absurd and indeed obscenely low award for the extent of life-long injury sustained. 

A second jury involved a criminal case where the result was a hung jury. The case was a felon in possession of a firearm case where the firearm was not recovered by the police. The jury deadlocked because many of the members of the jury thought the case was about a love story and a handful of jurors concluded that there was reasonable doubt because no gun was recovered with the defendant’s DNA on the gun. This hung jury resulted after presentation of evidence from more than six witnesses observing the defendant firing the handgun and a video of the defendant talking with his girlfriend at the jail pleading with her to “take the fall” for him on the firearm possession charge. 

Jurors are not the only people at fault in this trend. Lawyers who use actors with no apparent injury to be say “I hired Lawyer Smith and he got me $300,000” are partially to blame. Those advertisements make jurors believe that clients can settle cases for large amounts of money without actually being hurt in any way that is visible. Judges who take outrageous positions or issue outrageous opinions are also to blame in part. The general tenor of discourse among society in general bear some of the blame. Politicians bear some of the blame.

IN 2017, DON’T GET STUCK IN ROUNDABOUTS 

I was driving through Carmel, Indiana on Thanksgiving day the first time I saw this street sign – driving to a Thanksgiving dinner. I thought to myself, “How the heck do I navigate these roundabouts?” 

The sign made absolutely no sense – my destination was straight ahead but completely obscured by the series of circular paths that I would have to navigate to go straight.  

If that sounds absurd – it sure felt that way to me. I’m sure there is a good road engineering rationale for the roundabouts but to me it was a driving maze that was complicated and unnecessary.

I am certain that the process of litigation that ends in either a trial or settlement feels like an unending series of senseless roundabouts.

Every roundabout takes time and costs money.

In the end, the course toward resolution is a straight line obscured by circular motion.

 Dizzy yet? I am.

Here is the worst part, sometimes the roundabouts are necessary to build the foundation of resolution and sometimes they are not. Many times the value of the roundabout can only be determined after it has been traveled.

 Don’t let that cause you to throw up your hands and quit. Or fall into the trap of complaining about the system – neither produces satisfying results – often the opposite is true.

My advice is simple. The task is to find the most efficient and cost effective path to a straight line.

Sometimes that means choosing a course other than litigation.

Sometimes that means choosing mediation before litigation.

Sometimes you just have to buckle up and ride through the seemingly endless series of roundabouts.

One thing is certain whatever path is chosen. Choose a lawyer you trust. A lawyer that listens to your needs and provides advice that enhances your ability to meet your goals.

The best lawyers are not the ones who direct your course based upon what they think the best position is. Rather, the best lawyers, listen and then act. They are a player on your team not the owner of the team.

You always have some control, no matter what stage of litigation you are in. Sometimes your modicum of control is limited by choices made earlier in the dispute process. Sometimes control is limited by the sytem itself.

FINDING RAINBOWS AMID CHAOS

The Rainbow Bridge spanning the Niagra River from the American Falls to the Canadian Falls – a place, where when the sun is out, you can see rainbows formed in the mist created by the chaos of waters colliding in Niagra Falls. 

I view my job, whether functioning as a trial lawyer, or when serving as a mediator, to be a job that helps clients search for rainbows amid the chaos of legal problems. Most clients do not choose to be in legal chaos. Indeed, many come looking for a way to avoid or chart a steady course through what could become chaotic. 

Parties to a dispute so often are so caught up in the middle of the chaos of a trial or appeal that they cannot see a way out. Positions become entrenched. The sun is hidden behind clouds of uncertainty. No rainbows in sight – at least it seems that way. 

Sometimes I function in a role that seeks to identify a path through the clouds of uncertainty. The path could lead to a trial. Trials rarely result in rainbows. The path could lead to a settlement. Settlements are sometimes actually rainbows. Even though they are rarely seen that way. 

Through the nearly thirty-three years I have worked with clients to help them solve problems, I appreciate the many other resources that exist in our community to help to solve problems. Sometimes through education. Sometimes through volunteerism. Sometimes through philanthropy. 

Rainbows out of chaos – every one. 

This year we, as a firm, have decided to share from our financial blessing, with two organizations that touch the hearts of those in need – leaving a rainbow behind. 

The two organizations deal with very different issues: The K.I.N.D. Fund; and Erasingthedistance.org. 

The K.I.N.D. Fund was established by Lawrence O’Donnell of MSNBC and UNICEF. Seventy percent of students in Malawi have no desk or chair in school. They sit on the ground. Only 7% of girls finish high school because of the cost involved – families in Malawi have to pay for the children to attend high school. The cost of a desk for two to three children to use -- $55. The desks are made locally so that local jobs are created. The cost of one year of high school including room, board, transportation, books and uniforms -- $177. The program has delivered desks to more than 221,000 children in Malawi. If you’d like to join us in supporting the K.I.N.D. Fund, you can make a donation at https://www.unicefusa.org/mission/protect/education/kids-need-desks-kind. Ninety percent of every donation goes to desks and scholarships. 

Erasingthedistance.org addresses one of the most pressing issues in our society today – mental illness. The organization does this through collecting true stories from people whose lives have been impacted by mental health issues. The stories are then transformed into monologues and plays brought to life on stage before live audiences. Every performance is followed by a moderated, interactive dialogue with the audience to explore the play’s themes, and when appropriate, identify mental illness signs, symptoms, recovery options and community resources. The plays are performed in Middle Schools, High Schools, Colleges and Universities, in places of work, Hospitals, and to the general public. If you’d like to join us in supporting erasingthedistance.org, you can make a donation at www.erasingthedistance.org/get-involved. 

STRATEGIC DEPOSITIONS – A SIGNAL THAT MAYBE YOU SHOULD SETTLE YOUR CASE

A lawyer who has a strategy to win at trial can be spotted by the trained eye immediately. They do not waste time asking worthless questions at depositions. 

In the vast majority of cases who cares about the details of a witnesses education or work history? Who cares how long they have been married or how many kids they have? 

Yet, depositions of witnesses in nearly every case start with a lengthy “warm up” session of who cares questions. Sometimes those who cares questions take hours. 

The who cares questions are costly – the lawyer gets paid the same amount of money when they ask who cares questions as they do when the ask everybody cares questions. 

More importantly, those questions allow witnesses to get comfortable with the process and give better answers when the everybody cares questions are asked. 

If you run into a lawyer in a case you are involved in who starts a deposition with a question that is unexpected or drives right at a critical question – you need to listen carefully. You are dealing with a lawyer who has a plan. And that plan is not to run up costs. That plan is to set up the case so that his or her client has the best chance to win at trial. 

You, the client, or the witness have to watch for that type of lawyer. Why? Because in the vast majority of significant cases, young and inexperienced lawyers are sent with clients and witnesses to depositions, even critical ones. Young and inexperienced lawyers are unlikely to be aware of the risks a lawyer with a finely tuned plan and short depositions creates in a case. 

Imagine a situation where a lawyer asks this question to start a deposition, “What did my client do that was wrong?” In most instances, when that question is asked there is dead silence and a very uncomfortable time with the witness looking at his or her lawyer to help give the answer or at least object so that the witness has more time to think. Most times, clients and witnesses are not prepared to answer that type of question as the first question asked. 

Let me give you two concrete examples of very short depositions that were devastating at trial. 

This first example involves a software development case. Fraud claims had been made and the case involved numerous accusations of lawyer misconduct. The case was ugly. 

A critical issue in the case was who had written the software that failed. The software provider or a consultant who worked for the software purchaser. The whole case rested on the answer to that question. 

The day of the critical deposition came. The witness was the head of IT for the software purchaser. The first question – does your company have the software back ups for the critical time period. Answer, “No.” The second question, were the back ups destroyed? Answer, “Yes.” The final question of the deposition, when were the back ups destroyed? Answer, “One month ago in a routine destruction of back ups?” 

The witness, client and lawyer laughed on the way out of the deposition. There were high fives at the elevator. 

They had lost their case and did not even know it. Why? They had destroyed the critical evidence nine months after the case was filed and seven months after the back ups were requested in discovery. 

The result – much to the surprise of the client and the lawyer – the judge threw out the case for evidenced destruction and awarded $750,000 in sanctions. So much for laughing and high fives. 

The second case involved an email that could have been explained away. It said “here is the contract for signature, we are contemplating establishing a fixed price for the contract.” That email was sent by the lawyer who was the primary drafter of the contract to his client’s representatives. 

The lawyer and the client knew the whole issue in the case was whether the contract was a fixed fee contract or a percentage fee contract. The difference was more than $1.5 million.

At the deposition of the lawyer, the following two questions were asked. First question, “when was the concept of a fixed fee first discussed?” Answer, “We told your client at the first meeting we had that the contract had to be a fixed fee contract.” Second question, “what was the date of that meeting?” Answer, August 11. 

You can probably guess the date of the email – September 16 – not a single question was asked about that email and it was not marked as an exhibit until the trial testimony of the lawyer. 

The trial was held in a part of the state with a heavily religious jury pool. The opening statement of the lawyer who had asked about the fixed fee issue contained a Bible verse reference that the lawyer knew every person on that jury would be familiar with and one additional sentence which was consistent with the Bible verse, “We do not hope for things we already have; We do not have to have faith in things we can touch or see; and We do not contemplate making decisions that have already been made.” 

The witness had absolutely nothing he could do. He did not hear the opening statement. The lawyers involved in the trial were precluded from discussing what happened with the lawyer until after his testimony. By the time the email containing the phrase “we are contemplating establishing a fixed fee” was read to the jury, the case was over. 

Three questions worth $1.5 million.