Sunday, May 18, 2008

If it Wasn’t for the Honor of the Thing . . .

I have a confession to make. I love to try cases. Most trial lawyers love to try cases. Trials allow us to put aside all of life’s other distractions for the duration, to occupy center stage, and to give vent to our swashbuckling tendencies, all while feeling incredibly pumped. People actually pay us to do this!

But our clients, as a rule, don’t share our passion. Their view of trials coincides roughly with the attitude of the fellow in one of Abraham Lincoln’s anecdotes. Upon being tarred and feathered and ridden out of town on a rail, the gentleman was reputed to have said: "If it wasn’t for the honor of the thing, I would just as soon walk."

By going to trial, plaintiffs are risking everything; insured defendants are taking time away from their businesses or jobs (not to mention facing a potful of bad publicity); and claims reps know that the "meter is running" and the bean-counters in the home office are watching.

We trial lawyers should keep firmly in mind that, while our clients don’t want to settle at all costs, their threshold for an acceptable settlement — once they understand all of the ramifications and risks — is usually different from ours. We are the players; they are the stakeholders.

Because of these differences in outlook, mediation tends to be more productive if it happens well in advance of trial, before the lawyers’ adrenalin kicks in, so long as there has been enough discovery that the clients "understand all of the ramifications and risks." See my previous post, "To Every Thing There is a Season."


Nancy E. Hudgins said...

I agree: trials are fun!
Years ago a colleague suggested putting two lawyers on every case: one would be trial counsel, the other would be settlement counsel. I haven't seen this often in practice, but I imagine it would be cost effective regardless of the side you are on, especially if you add client satisfaction into the mix.
Thanks for your kind words and generous link to my mediation preparation posts.

John Lassey said...

I've only experienced the dual counsel arrangement you mention once before, but it worked out rather well; I concentrated on preparing for trial, and my colleague handled settlement negotiations. For those cases that go down to the wire (we settled on Sunday morning, the day before trial) the technique can be very useful.