The Litigator advances toward Trial to resolve Disputes
Litigation is the process of advancing a Claim toward Trial so that Judgment can be rendered. Its purpose is to enable Litigators to resolve Disputes, which are the intractable legal controversies between parties. Above all, it is Resolution (and nothing else) that should be the objective, primary function and underlying impetus for everything that a Litigator does. An Effective Litigator is a lawyer who employs Litigation to reach Resolution as quickly and inexpensively as possible. In contrast, a Process Litigator is a lawyer whose focus is not on Resolution, but on the process itself.
Litigation begins with the initiation of a Lawsuit by the filing of a Complaint by the Plaintiff . Once initiated, Litigation will only terminate in one of three ways, by unilateral surrender, Judgment or Settlement.
Unilateral surrender occurs when either the Plaintiff abandons his Claim by taking a voluntary dismissal of the Lawsuit (or by some other action or inaction that permanently bars him from reinitiating it) or when the Defendant unconditionally and fully capitulates to the Plaintiff’s Claim. Unilateral surrender is rare and usually driven primarily by the surrendering party’s lack of the required resources (money, time and/or emotional fortitude) to continue Litigating. While it terminates the Lawsuit, it doesn’t reach Resolution because the surrendering party perceives that circumstance has denied him his day in court. In his mind, the Dispute persists even though the Lawsuit has terminated.
Judgment is a full and final binding decree. It can arise during the Pleadings phase by Default when the Defendant forfeits his right to defend the Claim by failing to file a timely answer to the Complaint. It can also arise when the Court grants Judgment as a matter of law (JML) based upon the legal insufficiency of the Plaintiff’s Complaint, the lack of material facts at issue or upon Plaintiff’s failure to meet his evidentiary burden during Trial. Finally, Judgment can be rendered upon the verdict reached by the jury on the Issues presented to it by the Court. However it is rendered, a Judgment is only final when all Claims have been adjudicated and the parties’ Appellate rights have been fully exhausted by disposition or the lapse of time.
Settlement is Resolution by mutual consent of the Parties . It generally results in a voluntary dismissal of the Lawsuit prior to the rendering of Judgment and can occur (and often does) at a Court-ordered mediated Settlement conference (Mediation) or through negotiations between the parties’ respective Litigators outside of the presence of their respective Clients.
Settlement requires mutual recognition by the Parties that future Litigation is less advantageous than current compromise. This will not happen unless (at least) one of the Litigators has advanced the Claims vigorously towards Judgment. Languishing Claims do not Settle because the Parties have neither been invested with a palpable fear of looming adverse Judgment, nor been subjected to the sharp edges of Litigation, like Deposition and the payment of attorney fees.
Theoretically all Claims should Settle, and if Litigators move competently toward Judgment and Counsel their Clients properly they will—unless one of the Clients is crazy, because only a crazy person would choose to go through the expense and emotion of Trial unless he had no other choice. Settlement, on reasonable terms, is always a better choice for Resolution than Trial.
Resolution is the Litigator’s essential purpose
When I was a newly-minted Junior I got my cases from older lawyers who had too much work to do themselves. The busier they were, the more work they had to give me—which was good, because I needed work. But being busy also meant they had less time to supervise and train me—which was bad, because I didn’t know what I was doing. Law school had taught me what a lawyer is supposed to know, but not what a lawyer is supposed to do and certainly not what a Litigator does. I was largely left to figure that out for myself.
In retrospect, I have realized the typicality of my situation. Effective Litigators attract Clients and end up with more work than they can handle, so they hire Juniors to help them. But they don’t have (or don’t make) the time to teach their Juniors what a Litigator does and train them how to do it. One reason for that is economic—training and teaching aren’t billable events. But another is a matter of skill—training and teaching are not things most Litigators are good at doing. Having a skill is not the same as passing it on to another person.
Exacerbating this problem is the tendency of Effective Litigators to view Litigation as a matter of instinct that a lawyer must obtain through experience rather than a set of transferable skill and best practices. They know what to do and when (ideally) to do it by virtue of having learned it the hard way through trial (literally and figuratively) and error. Thus, while an Effective Litigator could readily explain a discrete part of the Litigation process, like the taking of a Deposition, if you asked him to explain how all the discrete parts fit into the overall process he couldn’t do it very well because it is just something he knows in his bones and has never reduced to a systematic scheme. Because he is Effective, and thus busy, he doesn’t have the time to give it that much thought.
As a Junior I had a very Effective Senior who would exhort me to always “stay active in the file” but would never tell me what that looked like as a practical matter. Because he was a busy man (who I didn’t want to bother) I would just do what looked to me like the next most logical thing, but since I didn’t know what a Litigator does it would really only be a matter of luck if I got it right. As a result, seeking to stay active in the file I often did the wrong thing, leading my Senior to look at me blankly, scratch his head and say (charitably) “OK, I guess I can see why you did that, and here’s what we’ll have to do to fix it.”
I didn’t know enough to say it then, but I would have been far less likely to have done the wrong thing had I understood the Litigation process in general and had a view of the strategy that my Senior saw to Resolve the specific Claim. But, not having been trained that way himself, that is not how my Senior trained me. Instead, he generally let me drift along until circumstances forced him to task me to do something specific.
So, for example, I took my first big Deposition when my Senior had to appear at a hearing on a temporary restraining order that he did not anticipate. Since he couldn’t be at both places simultaneously, he sent me to the Deposition because it was the less important event. That is not the ideal way to learn how to take a Deposition. It is also not the best way to learn how to draft a Complaint, defend a motion for summary judgment or pick a jury—but that’s pretty much how I learned to do all of those things, by trial (literally and figuratively) and error.
Ultimately I did learn how to do the things a Litigator does, but without any global understanding of how those things fit into an overall process that led to Resolution. Unlike my first career as an infantryman (where I learned on my very first day that my purpose was to close with and destroy the enemy) nobody ever taught me that a Litigator’s purpose is Resolution—first and foremost. Like must Junior Litigators I bounced from task to event, haphazardly over-preparing for the things that scared me and under-preparing for the ones I was too inexperienced to fully understand.
At some point, probably about my seventh year of practice, I found that I was no longer having to plow new ground. Pretty much everything I was doing was something I had done before. This allowed me to relax and try to improve. It also led me to begin questioning why I (and my fellow Litigators) did some of the things that we did. I realized how difficult it was to know what to do without first knowing why you are doing it.
Now, as a Senior myself, I can see that there is really no way for a Junior to become an Effective Litigator without first understanding that his essential purpose is Resolution, to firmly and finally end the Dispute. Only then will he be able to understand that Litigation is nothing more than the process we use to advance Claims to Trial because that is how Disputes are Resolved. If he doesn’t understand those two things he is likely to become a Process Litigator for whom staying active in the file is the primary objective. I don’t want that for any lawyer, because it is a soulless place full of mindless drudgery.
As a result, the first thing that I teach my Juniors is that our essential purpose as Litigators is Resolution, and nothing else. The second thing I teach them is that to be Effective e must reach Resolution as quickly and inexpensively as possible. The third thing I teach them is that advancing Claims to Trial in search of Judgment is the best strategy for Effectiveness. The fourth thing I teach them is that the fastest route to Judgment is along the Critical Path.
The Effective Litigator always stays on the Critical Path
The Litigation process is comprised of five distinct phases: Pleadings, Discovery, Pre-trial Resolution, Trial and Appeal. While each phase is common to every Litigation regardless of jurisdiction, the particular Functions that take place within each phase will depend up the nature and size of the Dispute, the preferred tactics of the Litigators and the requirements of the Court.
Functions are things done to advance a Claim to Trial. They are comprised of Tasks (actions performed during the Litigation process) and Events (occurrences during the Litigation process) or the combination of the two.
The performance of a Task is governed by Court-imposed rules and the prevailing standard of care. For example, the propounding of interrogatories is a Task done during the Discovery phase. The applicable rules of civil procedure will limit the number and nature of the questions that can be asked and the scheduling order will set a deadline for their service upon the Opponent.
However, while the Court’s rules and orders must be followed, they provide no useful guidance about the quality of the interrogatories, or whether they must be propounded at all in a particular case. This will only come from the standard of care which, unlike rule and order, is not written down anywhere other than appellate decisions arising from malpractice cases—which are rare. As a result, a Junior can only learn the standard of care applicable to a particular Task either by gaining his own experience (primarily through failure) or through the instruction of a Senior.
Events are different than Tasks in that they are activities involving other people that take place at a particular time and location, rather than actions performed by a single person at a place and time that is immaterial (as long as it is prior to any applicable deadline).
The taking of a Deposition is an example of an Event in that it requires the presence of the Litigator, his Opponent, the deponent and the court reporter and is conducted at the particular time and place designated in the notice of Deposition. In contrast, preparing for a Deposition is a Task that can be performed by the Litigator alone at any time or place as long as it is before the Deposition starts. Ultimately, the preparation for (the Task) and taking of (the Event) of the Deposition join together in the overall Function of a Deposition itself.
Like Tasks, Events are also governed both by Court-imposed rules that the Junior can read for himself and the prevailing standard of care which he must learn through experience or instruction.
Tasks and Events both lead to Outcomes, which are things that happen (both good and bad) during the Litigation for which the Litigator is responsible. A bad Deposition (just like a good one) is an Outcome. Resolution, whether by surrender, Settlement or Judgment is the ultimate Outcome—for that to be positive, the Litigator must stay on the Critical Path.
The Critical Path is the route formed through Litigation by the Functions that are vitally important to obtaining Judgment. While there are many Functions (probably hundreds), only eight are vitally important. They are: 1) drafting the Complaint/Answer ; 2) drafting Instructions; 3) propounding Requests; 4) building the XBox; 5) taking the 30(b)(6) Deposition ; 6) obtaining/defeating Summary Judgment ; 7) conducting Mediation; and 8) Trial.
This is not to say that Functions that are not on the Critical Path are not important or necessary, just that they are not vitally important. For example, if the judge orders a scheduling conference the Litigators must attend it. In that sense it is an Event that is important, and because the Court has ordered it, is also necessary. But it is not a vital Event because the Claim can still be advanced to Trial even if it is not conducted.
At this point, it is necessary to define more specifically what is meant by Advancing—it means initiating competent and deliberate movement toward Trial, instead of just being carried there like a passenger on an airplane. It is not enough for a Litigator to sit back and let things happen, even though that will likely end up in a Trial, because approaching a Lawsuit that way is not competent. Advancing means performing those Tasks and initiating those Events that put pressure on one’s Opponent by raising the looming specter of an Adverse Judgment and exposing the Adversary to the sharp edges of the Litigation process. This is how Resolution is reached, either through unilateral surrender, Settlement or (if necessary) Judgment.
As with a construction project (from which we borrowed the idea), the Critical Path in Litigation is determined by the identification of the longest stretch of dependent activities and the length of time required to complete them. Each Function on the Critical Path requires a significant amount of time and effort by the Litigator (and his team), but also the cooperation of both his Opponent and the Court. Because his Opponent and the Court are independent agents outside of his control, the Litigator focuses on the aspects of the Critical Path that he can control and performs those Functions as quickly as he can without being distracted by non-Critical Path Functions. In other words, it is the Functions on the Critical Path that the Litigator always does first.
Additionally, each Function on the Critical Path is dependent upon the performance of the preceding Function. The Instructions cannot be drafted before the Complaint or Answer is done. The Requests are based on the Instructions and the documents and information they produce are what the Litigator uses to build his XBox and take his 30(b)(6) Deposition. The testimony he culls from his Deposition defines his motion for Summary Judgment and whatever is left becomes the basis of negotiation at Mediation and defines the Issues for Trial.
Staying on the Critical Path requires discipline. Not surprisingly, it is comprised of the Functions that are the most time consuming and difficult for the Litigator to perform. Also, they will be the Functions that his Opponent will seek to frustrate if he is a Process Litigator because his goal is not Resolution. However, if he wishes to be Effective, the Litigator will not be thwarted. He will stay on the Critical Path because he knows that it is the fastest and most inexpensive trail to Resolution.