To understand what a litigator does and why he does it, I went back to the drawing board—well, back is not really the right way to put it. Actually, I went to a place I had never been before, which was the general understanding of how this system of dispute resolution came into being in the first place. Why, I asked myself, do we even have trials?
That may seem like a funny question to ask, given that I had been trying cases for thirteen years. How could I have engaged in something that long without thinking about why I was doing it? Somehow I had managed to focus very intently upon the trees without giving the forest much consideration at all.
It was very different with my first career as a soldier. Then, I knew exactly why I existed—to prepare for and fight in combat, because war is inevitable. You train for war, because if you don’t you will be in trouble when war comes, as it inevitably will. Despite near universal acceptance of the premise that war is bad and should be avoided at all costs, sometimes (too often) it just can’t be—because nations cannot resolve their differences peacefully. And it is at those times that soldiers becomes necessary.
At my lawyer drawing board, I realized that something similar was true of litigators. We exist because we become necessary at certain times, and those times are when people cannot resolve their own Disputes, those intractable legal controversies that periodically arise. Trials are how we resolve Disputes. While (like wars) they are inevitable and best avoided at all costs, sometimes they just can’t be—because people cannot resolve their Disputes peacefully.
A trial, like a war, is a costly exercise that yields a single winner and loser. And, just as the fear of losing a war can defuse bellicosity, the threat of an adverse judgment that might result from a trial can induce the parties to resolve their Dispute by settlement. Just like war, a lot can go wrong in trial. The closer people get to either, the more clearly they can see the virtue of compromise.
Understanding this helped me realize that my job as a litigator was not that different than it had been as a soldier. Preparing for and (when necessary) engaging in trial was analogous to preparing for and (when necessary) engaging in combat. Both are processes of dispute resolution, the key difference being that soldiers march toward the sound of the guns while Litigation is the process of advancing a claim toward trial so that judgment can be rendered for the sole purpose of resolving a Dispute.
Litigation is effective at resolving Dispute because it leads to a finite and unalterable set of possible outcomes. There will either be a Judgment, a Settlement or the full and unilateral surrender of one of the parties. Any one of these three outcomes will put the controversy to rest because it will have exhausted the legal rights of the Parties, and exhaustion is a key component of Litigation—in more ways than one. Disputes, like wars, don’t truly end until the parties themselves are exhausted from fighting, and Litigation provides a non-violent forum for that battle.
If people could resolve their own Disputes, Litigation would be unnecessary and Litigators would not exist—but that is not the case. People need a skilled advocate to guide them toward Resolution as quickly and efficiently as possible. Sitting at my drawing board, I realized that this is what an effective Litigator is—a skilled advocate whose primary objective is Resolution.
Resolution requires both a high degree of skill and commitment to purpose. Not all Litigators are Effective. Some are Novice Litigators who have not yet obtained the necessary skill to advance a claim toward trial so that Judgment can be rendered. Others are Process Litigators who, while perhaps skilled, lack commitment to purpose because their focus is on the process of Litigation itself, rather than Resolution.
I had to admit to myself that I knew too much to be a Novice Litigator, but I wasn’t purposeful enough to call myself an effective Litigator. I recognized that, at least at that moment, I was a Process Litigator. It wasn’t a very good feeling.