PREPARATORY ADMONITION: 
Litigation is somewhat like war.
“L” means “Lawyer” 
“C” means “Client”

Preface 

There are type-size variation problems in this essay I can’t seem to solve. 

Sometimes clients need to get an introduction as to how a type of lawsuit will work. Sometimes this can be done gently. Sometimes it has to be done bluntly and in detail. 

The following script was designed for a legal malpractice case. It involves L’s representation of C. It is a drama of sorts–or better an intimate speech addressed to C. The speaker is another lawyer representing C against L. 

 The script is an outline of how a plaintiff’s lawyer might wish to address the coming storm right from or near the start. The story presupposes that resolution is not just around the corner. L is not tactfully “pleading guilty of malpractice.”

Analogs of this script can be developed for other types of cases. It is being passed along so that you can think of ways the ideas or the presentation can be used. Or, it is being passed along so that you can determine how and to what extent you wish to avoid it, use bits and piece of it,  refrain from using it as it stands completely. In which case, it can be used as a guide for a better way. 

The Talk

L is a lawyer who is (or shortly will be) the defendant. You were his client and you are now the plaintiff. You’re are attacking him. You want something of great value from him, even if it all actually covered by insurance. L is not likely to bend over gracefully. He does not regard this as an act of you profoundly seeking impartial justice.
Of course, L will have his own lawyer(s). There is nothing really personable about this. You are on the attack, and they are hired to resist and defeat.  You and L have been friends for a good many years.  


You have believed firmly for a good number of years L has served him well.  C, you have, for a long time,  regarded L as your friend. Maybe L was never really your true friend, although that was not obvious. Or maybe he was but something went wrong somehow. 


  L’s lawyers are NOT your friends now and probably won’t be ever,  forevermore. They are your enemies, thoroughly and completely, although they will likely consistently be civil, polite, even affable. This is true even if you ane they are members of the same clubs, even if they went to high school together, even if they know many of the same people. (Think General Lee and General Grant.) The word and idea “enemy” is chosen on purpose

Lawsuits are adversarial encounters, states of affairs, or events that are complex and usually–even often– lengthy.  Thus they may be long events that include other, shorter events. (Think “play” and different “acts.”) 

Because lawsuits are adversarial in nature, they resemble war in some ways and to some degree, so its principles and characterizations can be usual for analogical purposes. Some of the aphorisms will be the same. Don’t press that idea too far. 

(Some lawyers will try and attack opposing counsel. Sometimes they believe that will help their case in a variety of ways.  C should usually pay no attention to them. Do not advise me to do that. I won’t, and it is not in your interest for me to do so.)


  An ultimate mission of opposing counsel is to see to it that you get no positive result.  Their mission right now—and for the remainder of this lawsuit–is to prevent us from getting evidence even slightly harmful to their client if they can.  

 
L’s lawyers are not going to actually or really cooperate, except as required by law, although they will try and look like they are. Thus, when they are legally required to perform his or that action, they will not be cooperating out of a sense of justice but out of strategic or tactical reasons. 

While they will be trying to appear as if they are cooperating,  that should always be thought of as a ruse. Expect them to resist and obstruct.   Sometimes they may conduct themselves as if they do not really recognize people like you as having actual existence. Often so far as they appear attentive or concerned, your lawyers are the only actual human beings in the room, except for themselves. 


Do not expect them actually to lie. They may but probably will not, though, they will come close. After all, they are in the shoes of their client, the defendant, your enemy, so they will be depending on the weakness of our proof and how we will come across to the trier of fact, whether court or jury. 

They will try to make us appear and feel weak.  This point applied to arguments, what we think are facts and facial inferences. It is also true with respect to self-confidence and self-image. Finding and exposing our weaknesses and our self-perceived witnesses are their glory. 


(If we conclude someone is lying for L, we must put together as good a case as possible to prove exactly that to the extent at all possible, and if we cannot, we’ll need to write the matter off, unless there are a lot of such instances. If L himself lies, so much the better. We will probably catch him.)  


L’s lawyers will also be tempted to believe (i.e., hypothesize without inherent doubt) that when we (you or your surrogates) say “Don’t remember,” we (or they) are lying and the other side will try to impeach our claimed loss or absence of memory.  If we say “Can’t remember” very often or when saying that doesn’t seem reasonable, they will out-and-out conclude that the witness is lying.  Sometimes they will be right unless we are very careful to try hard to speak only the truth. 

They will try and use “Don’t remember statements” for impeachment in three different ways. First, they will suggest that the speaker does remember, or remembers part of what is being discussed. Second, they will try and say that if the witness says he doesn’t remember X, then he probably can’t remember Y either, though he says that he does. Third, they will try and argue that if a witness doesn’t remember quite a lot of things, then he is simply unreliable because his memory system is unreliable. 


You should assume that L hates you and wishes you all sorts of harm. In his mind, you are betraying him, eating up his assets, and making him psychologically miserable. Do not be confused by his gentility, if there is any. In his heart and some of his mind, you have become Satan’s minion: dishonest, untrustworthy, and vicious. Think of all the ways that you can be insulted, hurt, and be troubled. Realize that your former friend L will manipulate him all, if he can think of them, and remember: He has known you a long time. Lawsuits often last a long time, and you will be under attack (at least in your own mind)

There is only one exception to these general rules. If they become accommodating in any  real sense, ask yourself if this might be because they have concluded that we, our case, or both have become so weak that they can appear kindly. Then again, try the opposite and ask “What are they trying to get out of us?” 

Am I sounding cynical here? Uncharitable? Maybe so, but make no mistake, they intend to win if at all possible, and to settle for the lowest sum possible. This is what rational adversariality means in a competitive culture. In litigation, be skeptical of all surface appearances. Underneath them lies a will to win. 

Keep in mind that winning may mean different things to different people. Lee left Gettysburg thinking of himself as having won. Then again, before you think that is simply absurd, remember that the Civil War lasted a long time thereafter.  Winning may mean to L settling for half of your damages, which he doesn’t think of as his fault anyway. Or maybe he doesn’t really think of them as losses.  

We should assume at all times that they have maximal faith in the strength of their case. If we are to win, we must overcome this bias of their—believe me: that bias is in their heads and in their hearts. Assume they have a passion for their position in this case, no matter how miserable this lawsuit is making L, or you,  or any of us. 

Now for a surprise. What I’ve just said about their passions and their assessments could be false. They may be play-acting. Never mind that. Assume that they have faith in themselves and their views. In this situation and on this point,  a false assumption is probably better a complex view of the other side’s labyrinthian mental and emotional states. 


The fact that this lawsuit will make you miserable and eat up your time must be ignored, overcome, and  in-effect destroy all negativities if you want to win the case. You should think about this case as a speculative investment. It may pay off; then again it may not. Get used to it and don’t let it grind you down.

Sometimes lawyers tell their clients to come to love the case. Make it your friend, your companion, your lover. I don’t go that far, and I don’t even understand what it would be like for a case to be a lover. The metaphor is lost on me. Still, maybe that helps some clients. 

 
At present, do not even think about settlement. It’s not going to happen soon, and that kind of wishful thinking impedes getting the job done. The idea that opposing counsel is presently looking for cooperation and justice as to recovery in this case, must be discarded, except under extraordinary circumstances.  

Never completely trust a suggestion of negotiation when it comes from opposing counsel.  This caution does not imply that one should not proceed based on a suggestion of opposing counsel. Just be ye careful.  Look for minefields. Create your own levers while you are expecting him/her to use the ones s/he’s already invented. Look for “tell signs,” though don’t trust your own imagination.

So much for the script. Think of it as an experiment. If you find it useful, use whatever parts you think might work. Godspeed to each of us. 


Michael Sean Quinn, Ph.D., J.D.
Practicing Lawyer
Austin Texas 
Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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