The second step in positive change is diagnosing the Problem. If you get the Problem wrong, you will only get the solution right by accident.
Although PTE (Post Trial Exhaustion) and financial insecurity had caused me to recognize that I had a Problem, I knew that neither was the Problem itself, they were only symptoms of it. Glaring as they were, they were merely the effects of my underlying dilemma, not its cause. I knew that there was something deeper that was bothering me and had been for a long time. Somehow, the Big Case had brought it to a head.
As the last vestiges of my PTE were fading I tried to determine what the deeper something was, but I couldn’t seem to do it by myself. Finally, realizing that self-diagnosis wasn’t working, I turned to my friend Kevin for help. I described the trial of my Big Case to him, together with my resulting bout with PTE, my financial insecurity and the nagging certainty that something wasn’t right.
“Well,” he said after hearing me out, “it sounds like you need to either hire some folks or go back to law firm life.” Kevin knew that I had spent the first ten years of my career in law firms and that it was only in the last three years that I had been practicing as a solo.
“Yeah, that seems like the obvious solution, but PTE is only part of it. I also have this gnawing feeling that I’m not doing things right, and I’ve always had it, regardless of the size of the firm I’m in.” I said.
“So you think something has to change because this can’t continue?” He asked.
“But you don’t know what ‘this’ is?”
“You got it.”
“Well,” he said, shifting gears, “tell me something, what do you mean by effective?”
“What?” I asked.
“When you said the other lawyer in your Big Case wasn’t very ‘effective’, what did you mean? Did you mean he was incompetent?”
“No,” I responded. “He was competent. He did what he had to do. It was more that he wasn’t . . . (I had to search for the right word) compelling. He wasn’t compelling.”
“What does that mean?”
“It means he wasn’t able to compel the jury to buy his client’s story. More than that, he never compelled me to believe that my client was at much risk of an adverse judgment, so we never had any real settlement discussions.”
Kevin looked at me for a second and asked “are you effective?”
“Yes. I believe I am. People have told me that anyway.”
“So what makes you compelling and the other attorney not? What’s the difference between the two of you?” Kevin had me there.
“I don’t know. Or maybe I just don’t know how to put it into words. We don’t really have a measure of lawyer-effectiveness.”
“Isn’t it just the difference between winning and losing a trial?” He asked. A pretty reasonable question from a non-lawyer.
“Not really, because the playing field isn’t even. Litigation is like duplicate bridge, you’re not playing against your opponent as much as you are the other people who have played your same hand.” Kevin looked perplexed—obviously not a bridge player.
“Explain that to me.”
“Well, you could be the plaintiff in a very strong case and come away with a small judgment. Technically, sure, you ‘won’. But the defense attorney is the actual winner because he kept you from winning as much as another lawyer who might have tried the same case to the same jury and done better. Its more about outcome relevant to possibility rather than just outcome itself.
“In fact, it’s even more complicated than that because you really have to assess effectiveness before trial as well, since most cases settle. To get a good settlement for your client, you also have to be effective. But that would never show up as a win or loss in a trial, because the trial wouldn’t happen.”
“So it’s not the outcome of the trial itself so much as the entire process that determines effectiveness?” Kevin asked.
“Yup, that’s it. Litigation is a process. To be effective, a Litigator has to be compelling throughout the entire process.”
Kevin thought for a moment, and asked “doesn’t that mean that you should have a least tried to settle the Big Case with your opponent, even if you didn’t think he was compelling?” Kevin asked.
That was a really good question. I should have at least tried. I had told Kevin that I wasn’t very concerned about the risk of an adverse judgment, but that was only half-true. The full truth is that I just had never gotten around to it.
As a solo-practitioner with no employees, I personally performed every task in the litigation process—and I never had enough time to get that all done. To survive, I prioritized the tasks that I deemed had to be done over those that only should be done.
So, for example, while I had to write the check for my office rent by the tenth day of the month or be evicted, there was no equivalent and direct adverse consequence if I didn’t initiate settlement discussions with my opponent prior to trial. While it was a thing that should be done, it was also something that I could put off in favor of the things that had to be done, right up to the moment that the trial would be called. And then it would be too late.
I also had to admit something else to myself. It’s easier to write a rent check then it is to negotiate settlement with your opponent. All I needed was a pen and my checkbook to pay the rent, while settlement negotiation involves a far more difficult, time consuming and frustrating set of tasks. And, like most people, my tendency was take the easy path, unless some outside force compelled me to do otherwise.
I suppose that explains the emergence of the court-ordered mediated settlement conference in most states. Lawyers should initiate their own settlement negotiations, but they don’t because it is a hard thing to do that can be procrastinated without direct adverse consequence. By ordering it to be done by mediation, courts elevate settlement negotiation from a should to a have-to.
Because the court didn’t do that in my Big Case, there was no outside force compelling me to initiate settlement with my opponent, so I didn’t. Had I done so, there is a chance that we might have settled without a trial. That would have saved my client from paying me that big bill and would have ended the Big Case sooner, which might have netted out to a less costly and more efficient solution to my client’s problem. We’ll never know because I didn’t try, and I didn’t try because I wasn’t effective.
That, I realized, was the diagnosis of my Problem: I was an ineffective litigator. Even though I had some skill in trying a case, I was not an effective litigator, because litigation is more than just the trial. It is a process that starts the moment the client first walks through the litigator’s door, and I had to be effective throughout its entirety, not just at its culmination.
The second step of positive change is diagnosing the Problem. With Kevin’s help, I had done that. Now all I had to do was find a way to fix it.