The Litigator must be a Counselor

Counsel is the third of the Three-C’s—those essential skills that a Litigator must do with excellence if he wants to be an excellent trial attorney.

The first C is Cross, which is the conduct of a cross-examination during a jury trial. The purpose of Cross is twofold—first, to call into question hostile witness testimony on material facts in dispute to enable the Litigator to meet or defeat the burden of persuasion during the Close; and second, to gather evidence to meet his burden of production at the close of evidence. The second C is Close, which is the making of the closing argument to the jury in a way that persuades the jurors to deliver a positive outcome for the Client. The third and final C is Counsel, which is the provision of legal, ethical and practical advice to a Client through the course of litigation.

Litigation is the process of taking a case to trial so that a Judgment is rendered. Although there are slight variations by jurisdiction, every Litigation features the same essential five phases that lead towards the ultimate outcome:

• The first phase is Pleadings, during which the parties give and test notice of the Claims and Defenses they seek to prove in the Litigation.

• The second phase is Discovery, where the parties seek information that may lead to the admissible Evidence they need to carry their burdens of proof.

• The third phase is Pre-trial Resolution, whereby the Dispute is terminated short of trial by mediated settlement or summary judgment.

• The fourth phase is Trial during which the Litigator prepares for and conducts a jury trial of his Client’s Claims and Defenses.

• The fifth phase is Appeal, where a higher court reviews the decisions made by the Trial court in order to finalize the Judgment.

For the Litigator, each of the five phases of Litigation is a necessary predicate to the final resolution of the Dispute. In his view, there are no momentous events in the process, only a series of incidents that (depending on their result) positively or negatively impact the odds of a favorable ultimate outcome for his Client. As his experience grows, he comes to see Litigation almost as a part of life (like death or marriage) with a rhythm that gradually becomes natural to him.

The Client sees Litigation in a far different light. Unless he is an experienced litigant, each incident of of the process is a daunting step further into an unknown world governed by an arcane set of rules and an impenetrable language. Because it comes with the anger of being unfairly dragged into a lawsuit, or of having to initiate one, Litigation is likely the most emotionally charged and agonizing experiences of the Client’s life. For him, there is no discernible rhythm to Litigation, natural or otherwise. Rather, it is an alien and out-of-body experience.

It is this disparity between the Litigator and the Client’s view of the process that makes Counseling one of the three essential skills of the Litigator. As with Cross and Close, it is not taught well in law school—if it is taught at all. Law school students learn the law by reading appellate decisions that treat the parties like medical schools treat cadavers. It is the law that is alive and breathing with the judges at the center of the stage. The Clients (and the Litigators who represent them) are mere faceless props that provide the issues for the judges to resolve. It is not until the law student graduates and passes the bar that he is confronted with the reality of the flesh and blood Client. It is only then that he begins to learn the essential skill of Counseling.

When I got my first job as a lawyer I looked at the words “Attorney and Counselor at Law” on my newly minted business card and told my boss that wanted the word Counselor removed. “I”, I confidently (and ignorantly) stated, “am a trial lawyer, not some kind of psychologist. I’m not going to be counseling anybody”.

My boss laughed and said, “buddy, by the time you’re through you’ll think the card is backwards, that it should read Counselor and Attorney at Law. Either that, or you won’t last long because you won’t be very good at it”.

How right that man was.

The Litigator must be a Leader

A Leader is a person who influences movement to advantage. There are several facets of Litigation that require Leadership. The most obvious is with the jury. To be effective, the Litigator must influence the jurors to move towards an advantageous verdict for his Client. He must also influence the judge toward an advantageous Judgment. With both judge and jury, the Litigator’s primary tool is the skill of persuasion, which the Litigator uses to convince them that his Client’s cause is more righteous than that of his Adversary.

Of equal importance is the Client, who the Litigator must Lead through the Litigation process in the same way that a frontier scout would lead a wagon train of pilgrims through the dangerous wilderness. Having placed their very lives in the hands of a man they barely know, the pilgrims are completely dependent upon him to steer them clear of the dark canyons where the Indians lie in wait and to find water when the rains don’t fall.

Likewise, the Litigator steers the Client down the Litigation trail, instructing and encouraging him through each phase of the process so that the Client can make the difficult decision that he will continually encounter—whether to settle or press on towards a final Judgment.

For the Client to make that decision rationally he will need to know three critical pieces of information about each phase of the Litigation process as it unfolds, which are: 1) expected duration, 2) probable cost and 3) likely outcome. Without this information, the Client’s decision whether to settle or press on will be anything but rational because it will be influenced by emotion rather than information. The Client’s emotions (primarily fear and anger) are bad guides, but they will rule his decision making unless the Litigator tempers them with as much information as possible. As a result, the Litigator’s skill in forecasting duration, cost and outcome is critical to effective Counseling.

Not coincidently, duration, cost and outcome are the very things that the Litigator finds most difficult to forecast because they are so heavily impacted by three powerful forces that are largely outside of his control: the emotions of his Adversary, the skill and aggressiveness of his Opponent and the idiosyncrasies of the Court . Because they are beyond his control, the Litigator must rely on his experience and understanding of human nature to predict their likely actions and the probable effect each will have on the Litigation process.

Although there is more to Counseling than forecasting duration, cost and outcome, if the Litigator doesn’t do it well (or at all) he will cause his Client unnecessary anxiety and lose his trust, such that nothing else he does do well will matter much. An anxious group of pilgrims will likely lose heart and turn back towards home if they lose trust in their scout.

In the same way, an anxious and distrustful Client will not make it to the end of the Litigation process. Or, perhaps worse, overcome by anger, he will press on when he should settle.

The Litigator must build trust to Counsel effectively

If the Client and Adversary were once in business together, the Dispute that emerges between them will not only sever their working relationship but will also destroy any basis of trust they once shared. Likewise, if their relationship was merely contractual, there will not have been any trust between them to destroy, as they were simply parties to an agreement that is now broken. But if their relationship was personal, the Dispute will not only destroy their trust, it will also leave them hating one another.

Regardless then of the nature of the relationship between the Client and his Adversary, the Dispute will isolate them in a sea of mistrust, with no means of crossing to the other’s island in search of a resolution. From their perspective, the waters will be too shark infested to even try. This is how the Litigator and his Opponent will find their respective clients at the outset of the Litigation—wary, mistrustful and incapable of movement to their mutual advantage.

To initiate movement, the Litigator’s first step must be to establish trust between himself and his Client. A lawyer reading this might say, “wait, of course my clients trust me—I’m their lawyer”. That’s true, to an extent. A client will have some basic level of implicit trust that is founded upon his understanding of his attorney’s professional and ethical obligation to help him, and the fact that he is paying him to do so. But that is not the kind of trust required for the Litigator to effectively influence his Client to move toward advantage. Leadership requires more than that.

To establish this deeper level of trust, the Litigator must convey to the Client that he has both a clear understanding of the Dispute (and the fear and anger that accompanies it) and a clear vision for its resolution that won’t destroy him (or his company) in the process. To influence the Client to initiate movement away from his island in the sea of mistrust (where he at least feels safe), the Litigator must first convince him that he knows the way to a better place.

I have a five-step process that I use to build this deeper basis of trust with my Clients. I learned it gradually (through failure—like every other aspect of Litigation) and by watching other more experienced lawyers do it. I didn’t know that it had five steps, or that it was a process at all, until I began trying to explain it to less experienced lawyers. This led me to see that what I was doing wasn’t random or instinctive. Rather, it was systematic and unnatural, and completely necessary if I wanted to be effective.

STEP ONE: Set Oneself Aside

To build trust, the Litigator must be trustworthy. Not only to his Clients, but in his own eyes. To believe himself trustworthy, the Litigator’s sole motivation must be to serve his Client’s best interests.

I’m not saying that we lawyers shouldn’t insist on being paid for our work, because we won’t be practicing long if we do that. Nor that we shouldn’t care about the advancement of our careers, as ambition in the right measure is a good and natural thing. But money and glory are about the Litigator, not his Client. If they are his primary motivators, he won’t be able to hide that from himself or his Client. He will be neither worthy of his Client’s trust, nor capable of earning it from him.

I know from experience—to build the level of trust necessary to effectively Lead my Client I must first set myself aside.

STEP TWO: Ask The Client What The Problem Is

Setting myself aside helps me focus on my Client’s view of the problem instead of my own, which may well be very different. As a commercial Litigator, my tendency is to see a Dispute primarily through the lens of dollars and cents, so my first instinct is to determine how much money is at risk. But my Client (quite often) has not given that much thought and cannot provide the information I need to make a determination about damages.

Early in my career (before I learned to set myself aside) I would continue to press my Clients about their damages even when they weren’t ready to talk about them. This, I learned, was frustrating for them. “Why,” they would ask themselves, “does this lawyer keep talking about money instead of what actually happened?”

The answer, of course, is that the amount of potential damages will usually dictate the size and scope of the problem, together with the amount of effort the Client should be willing to make to do anything about it. “Why,” I would ask myself, “would this Client want to talk about liability for three hours before determining the extent of his potential exposure?”

The answer is, of course, trust—or lack of it. While a Client understands at some level that damages matter, what’s most important to him at the outset of the case is liability: the issue of right versus wrong. Or, more accurately, whether he is as right as he thinks he is and his Adversary is as wrong as he knows him to be.

Moreover, by the time I talk to him for the first time, most Clients have already told their story to their spouse, friends and coworkers, and maybe their non-Litigator attorney. Because they are not Litigators, these people are sympathetic to the Client’s focus on right and wrong rather than damages and, because they reinforce his feelings, have the Client’s trust.

Then the Litigator comes along and rudely insist that the problem is primarily about money not justice and forces the guy to talk about damages. It’s not a winning strategy for trust-building.

Which is why STEP TWO is to Ask The Client What The Problem Is. I generally do this when I feel the inevitable lull that comes after the preamble about who the Client is, what business he is in and the complaint with which he has been served (or the lawsuit he wants to file). That’s when I say “tell what you think the problem is”, or ask “what led up to this?” or “where do you see this going?” It doesn’t matter really, as long as it leads to my Client telling me how he sees the problem.

I listen carefully to his answer. I will have the rest of the Litigation process to tell him what I think it is.

STEP THREE: Ask The Client How He Feels About The Problem

If I read what I just wrote twenty years ago (maybe even ten) I would have thought I’d lost my mind or gone soft. I would have said, why would I ask the Client about his feelings? I assume he’s unhappy, who wouldn’t be in his situation? I’m not his psychologist or his friend, I’m his lawyer. Talking about his feelings is somebody else’s job, not mine. It’s a waste of time.

Now I have learned otherwise. Asking the Client how he feels about the problem results in three effects that are indispensable to effective Counseling.

First, it gives me insight into his motivation and risk tolerance, both of which I need to have if I am going to help him to periodically decide whether to settle or press on toward Judgment. When faced with that decision the Client is going to ask me what I would do in his situation, but what he really wants to know is what I would do if were him. To help him with that I need to know who he is. I already know who I am (I hope), but that is not relevant to his decision.

Second, it allows the Client to vent to someone who is ethically obligated to keep what he says confidential. I’m not a Catholic, but I assume that to be a great part of what confession provides, the opportunity to get your fear and anger out to someone who won’t put it on the internet. The Client is going to vent to someone, or bottle it up until he explodes at the wrong time, like in his deposition. Encouraging him to do it early on behind closed doors is like putting a control joint in a sidewalk. Concrete always cracks—the trick is getting it to crack in the right place.

Third, and most importantly, it builds trust. It conveys to the Client that the Litigator cares about him as well as his legal problem. I wouldn’t trust a dentist who treated me like I was just a mass of cells surrounding a set of otherwise disembodied teeth. Nor would I expect a Client to trust me if I treated him like a faceless prop in an appellate opinion.

Asking him how he feels is critical to understanding who he is.

STEP FOUR: Validate The Client’s Viewpoint

Through STEPS TWO and THREE, the Litigator will have learned what the Client thinks the problem is and how he feels about it, and he may well find himself disagreeing with the former while failing to emphasize with the latter. In fact, both are quite likely.

Because the Client is not a lawyer (and even if he is) his lack of objectivity will lead him to analyze the problem differently than the Litigator will. As I said before, his focus will likely be on right and wrong rather than on potential exposure, which to the Litigator’s brain is backwards. Likewise, because he is not a lawyer, he will not view Litigation as an inevitable part of doing business, while the Litigator (being in the business of Litigation) will see it exactly that way. Thus, it will be unlikely that the Litigator will share the Client’s feelings of injustice at being forced to sue or to defend a lawsuit.

And yet, despite sharing neither his Client’s analysis of the problem nor his feelings about it, the Litigator must validate both to build trust. If he is dismissive of either he will squander the opportunity to do so at the outset of the process and make it very unlikely that he can build trust later on. He will always be swimming upstream.

Fortunately, validation is easy. All the Litigator has to say is “I see why you feel that way”. He doesn’t have to agree with the Client’s analysis or share his feelings to be able to say that. It only requires sincere understanding.

All the Litigator has to do is understand his Client in order to validate him. And that one small act will reap trust in great measure.

STEP FIVE: (Start to) Establish The Benchmark Of Success

My vision of a successful Litigation is always the same—to obtain the best outcome I can for my Client as quickly and inexpensively as possible. How many phases of Litigation that requires depends both upon my Client’s vision of success and how much work my Opponent and the Adversary will force us to engage in to obtain it.

The easiest way to determine my Client’s benchmark of success is to simply ask him. If he is the plaintiff I ask “if I call my Opponent later today and get him make a settlement offer, what is the lowest amount you would accept and call it a success?” If my Client is the defendant, I flip the question. “What is he most you would pay today if I could get my Opponent to accept it?”

There are times (many) when my Client has not been ready to answer that question because he doesn’t have enough information. Or, even if he does (and is the defendant), has said that he will never pay the plaintiff a cent no matter what it costs him in legal fees. Or, if plaintiff, has said that it is not really about money but the defendant’s recognition of what he has done wrong and willingness to acknowledge it.

These are perfectly reasonable reactions from Clients who have not been through protracted Litigation and thus have no experience with the pressure they will come under to settle rather than go to trial. First, there are the fees and time required. Even though I try diligently to forecast the cost and duration of Litigation, both are hard for the Client to fathom and accept before they become a reality.

Likewise, the Client will be surprised at the pressure the mediator (and ultimately the judge) will put on him to compromise. They, because it is their job to do so, will make it sound to the Client like there is something wrong with him if he doesn’t make a “reasonable” demand or give his Adversary’s counteroffer “good faith” consideration. Yes of course (they tell the Client) you have the right to a trial, but why would you ever want to do something so crazy?

Because I know that is coming, I tell the determined defendant that he might feel differently about not settling after he has actually gotten a few attorney bills. Likewise, I tell the principled plaintiff that he is unlikely to feel vindicated by the verdict of twelve strangers; that even if his damages cannot fully be reduced to a dollar figure, that he should concentrate on the portion that can be because that is really the only satisfaction the jury can give him.

How much benchmarking of success the Litigator can accomplish during the first phase of Litigation is primarily dependent upon the Client’s nature. But he has to try, because when the Client realizes the truth for himself, the Litigator will want him to recall that it conforms to what the Litigator told him at the outset of the process.

Telling Clients (gently) the hard truth from the beginning builds trust. Failing to the tell them the truth (no matter how pure the Litigator’s intentions may be) erodes trust.