One Tack On Avoiding Surprises In A High Stakes Matter - Get A Cosell

In Monday's post I ended by discussing how a top law firm and a sophisticated client had sorely missed the mark in not settling a weak case at a more opportune time - before the jury verdict that nailed them with enormous liability far beyond what they had been offered to settle prior to trial.  We all have seen this happen. 

Afterwards, the party nailed and the Wall Street Journal may grumble about the arbitrariness of the jury system and our civil justice system as a whole.  This may make them feel a little better in licking their wounds, but it does nothing to change the result in their case.  In other words, regardless of your views on the state of our civil justice system, when you are confronted with a high stakes matter, you better not count on any sea changes happening to our legal system to bail you out before your case concludes.

As much as I love trying cases, the advantage that our open discovery system provides is that if both sides' lawyers know what they are doing [e.g. they have sufficient experience preparing and trying contested matters], then a case should not go to trial.  When a civil case actually goes to trial, it usually means that one side's team [the lawyers, the clients or both]  has made a big miscalculation.  But errors are also made in prolonging litigation past the point where it may be the most advantageous to settle for a particular side.

This has lead me to conclude that in every case there lurks on each side something that exposes the litigants to the risk of sorely missing the mark when it comes to evaluating the real prospects of their case - the inability to objectively evaluate what is happening to them. 

So here it is - what can help you avoid getting shocked with an unexpected surprise - at least in your high stakes cases?  You need to hire an independent counsel - not involved in the heat of battle as counsel of record - to view  and analyze the case from the beginning and as it progresses - someone whose job is to "tell it like it is."

Putting aside that it is not in their economic self-interest to cut short a big new piece of litigation and assuming only the purest of motives, many litigation counsel may be more reticent to be the bearer of bad news at the outset of a case for fear that the client may interpret this as a lack of guts or litigation savvy.  Moreover, as they get more and more involved in the case, the trait that makes litigation counsel as good as they are - the belief that they can win - can get in the way of an objective assessment of the case's progress.  We all like to think that we can be objective, but there is not a one of us who hasn't at least once fervently believed in a case only to be surprised at the end result.

Thus, from the beginning and as the case progresses, while both outside counsel and the client get embroiled in the heat of the battle, it is worth the incremental cost, at least in high stakes cases [and maybe for companies that have high case volume], to have an independent counsel evaluating whether particular strategies are actually winners and whether the case is heading toward a successful conclusion or should be settled.

Many a party would have fared far better in many a case if they had someone independent of the litigation providing them with a cold dose of reality.

Comments

[Zach Kitts]

Brilliant post, as always. I also think too many lawyers simply lack the ability to communicate the potential for liability--never mind the risks of trial--to the client. It isn't always easy to look someone in the eye that is paying you and tell them that they broke the law, and it is almost never received well. So, I suspect some lawyers lack the ability to openly and honestly have this sort of talk with clients. Others, I suspect, just figure they will have easier client relations and bigger revenues if they avoid discussing hard issues like the fact that the client screwed up. They do the same thing after trial, of course--i.e., blame the jury or the judge or system or the greedy plaintiff's lawyer who is obviously responsible.