The Law Works for You
When I left the District Attorney's office in the early 1990's to join a civil law firm in San Francisco, I had never heard the term ALitigator. My frame of reference had been the number of jury trials a trial lawyer had to verdict, Bench trials didn't count, and months of trial preparation didn't count. It was all about jury trials. That quickly changed once I began practicing in the civil arena.
Now, with the number of civil jury trials steadily diminishing, the art of litigation has steadily surpassed, the art of trying cases. That doesn't mean there isn't a place for good trial lawyers, it does however mean the chance to practice that art doesn't present itself very often. The real game is in litigation.
There are a number of reasons why we are seeing so many cases resolve short of trial. Foremost on the list are costs, expert costs, and alternate dispute resolution (ADR), and don't forget costs.
Once one knows there is little chance a case will get to trial, the emphasis needs to be on posturing the case for resolution short of trial. That requires a strong discovery plan directed to gathering necessary information, carefully framing the legal and factual issues, and working with the required experts. What does that really mea? It means know your case and your opponent's case so well that you can resolve the case through ADR, to your clients' advantage.
I still believe a good litigator needs to know how a case will play to a jury, even if that case never reaches a jury. In some cases the litigation plan will also include focus groups and mock trials.
A judge once told me the first thing one does in preparing for trial is closing argument. I didn't get it at first. Now, I prepare that closing argument at the start of every case. It is the theme; the point one wants to make to a jury at the close of a case, or to a mediator during mediation, or to an arbitrator during an arbitration, or even to your bathroom mirror when getting ready for argument. The point is that theme. It helps to frame your entire case, and thus your litigation plan all the way through to the selection of experts, then resolution.
A very helpful tool in framing a civil case is the Judge in a AComplex Civil Department. Like a Federal Judge, that Complex Judge can act as a discovery reference, setting a discovery plan in measured steps. An agreed discovery plan is put into motion. The idea is to do only that discovery which is necessary, rather than a random or shotgun approach. Get to the real issues, rather than waste time on non-essential issues.
Once the litigator has developed a theme, gathered all the necessary evidence, retained the necessary experts and researched all the legal issues, what remains to be done? Typically the answer is settle the case. That is because the litigator has by that point nurtured that case into a ripe piece of fruit, ready for picking.
Judge William Cahill once told me, cases which go to trial, usually do so because one side or the other has miscalculated. His point was that a well-litigated case has framed all issues, both factual and legal. What will a trial accomplish under those circumstances? In how many cases is the wisdom of a jury required to let litigators and parties know, what most of them already know?
Earlier I mentioned costs as one reason cases are not proceeding to trial. By that I don't mean to infer that litigation is not costly. It can be very, very costly. Just think of that cost, coupled with trial costs, expert trial costs and an unknown result at the outset of a trial.
Litigation costs can be calculated and budgeted. The unknown cost of a jury verdict cannot be reasonably calculated nor budgeted in most cases. It is that unknown cost of a verdict which pushes cases to resolution prior to trial.
A litigator must also recognize the impact of well-crafted motions in limine, on case resolution. Part of a litigators preparation is the use of well crafted motions in limine. The development of issues during litigation which alert the litigator to potential motions in limine cannot be emphasized enough. And in many cases, the rulings on those motions in limine cause a case to resolve before a jury panel is even called up to the trial department.
So to wrap it up, I now know what the term Alitigator means. In the morning when I look in the mirror I see one staring back at me.