Thursday, November 19, 2009

Underestimating Your Opponents

"There are not Indians enough in the country to whip the Seventh Cavalry!" George Armstrong Custer

Custer made the above-quoted statement eight years before the Battle of the Little Bighorn. The photo at the left illustrates the perils of such bravado.

For trial lawyers, it’s easy to get caught up in the adrenaline rush that usually occurs shortly before trial. The witnesses have been lined up, the trial team has marshaled all the facts and legal arguments, and the lawyers are eager to bring all of their months of effort to fruition. "We are, by God, ready! Bring on the trial!"

Confidence in one’s abilities is, of course, as necessary a trait in trial lawyers as it is in surgeons. Just as patients don’t hire surgeons who faint at the sight of blood, neither do clients have confidence in lawyers who shy away from the courtroom.

But too much confidence can overcome good sense. Leaving settlement discussions to the last minute can cause even the best and most cautious lawyer to overestimate the strength of his or her case and to underestimate the strength of the opponent’s case. This is one of the reasons — in addition to saving costs of trial prep — why serious settlement discussions should be planned for a time well in advance of trial.

From the beginning of a case, the lawyers should be planning for resolution in addition to trial. Discovery should be programmed in advance so that enough information to make settlement negotiations meaningful is expected to be known months before the combatants immerse themselves in final preparation.

But even with the best planning, things have a way of coming out differently than originally anticipated. If it is impossible to mediate a case until the eve of trial, the parties should consider engaging the services of separate settlement counsel to conduct the negotiations. It is usually much easier for such counsel to see things objectively than it is for trial counsel, a/k/a, the people who are more likely to be saying: "Bring on the Indians!"

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