Inside Straight: The Route To Victory
What should a good litigator's preliminary case assessment look like? In-house columnist Mark Herrmann explains what outside counsel should do -- and what they should NOT to do -- in an early case assessment.
As outside counsel handling a new piece of litigation, where do you start?
At closing argument.
That’s an oversimplification, of course, but it’s a valuable one. When you’re retained to defend a new lawsuit, you have to figure out how your client can win. What’s the other side’s weakest point? What are your strongest points? Where’s the emotional appeal in your case? What legal angles can you exploit? You put all that together and then spend a couple of years developing an evidentiary record that builds your path to victory.
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It’s not rocket science: Figure out how to win; get there. Good lawyers do it intuitively.
As in-house counsel, when we receive preliminary case assessments from mediocre outside counsel, we don’t get the route to victory. What do we get?
Summaries.
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“We’ve reviewed the key documents. They say the following. We’ve interviewed likely key witnesses. They tell us the following. We’ve looked at the law. The elements of the plaintiff’s claims are . . . .”
Sometimes, it’s even worse than that. We ask for a case evaluation, and we get back a chronology, seemingly prepared by a legal assistant, that recites in tedious detail, email by email, the documentary trail. There’s no indication of which documents matter (or why) or where this trail leads us. The case evaluation ends with a paragraph, perhaps written by a lawyer, that tells us that the investigation is continuing, and the firm will tell us more as things develop.
This is not a good way to attract repeat business.
Of course we’re interested in the underlying facts and law. We must understand the case, and we’re relying on you to help assess it.
But we’d also like to know how we can win. What, if anything, will we say on motion to dismiss? Do we have anything that might develop into a decent summary judgment motion? If we’ll be trying the case, what will we say in closing argument?
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We need to know how we win for three reasons. First, this lets us think about the case. It lets us estimate settlement values, take appropriate financial reserves, and the like. Seeing a summary of the facts is nice; knowing how we can win is critical.
Second, if you can explain to us how we win, it’s more likely that you can explain to a jury how we win. I had the misfortune to attend, several years ago, some jury research and was dumbstruck to see a lawyer (well-respected in his or her local community) give an “argument” that contained no argument at all. I watched for more than an hour as this lawyer told mock jurors that “I thought you might be interested in this” and “there’s an email that says that,” but never gave a coherent explanation of why the lawyer’s make-believe client should prevail.
That’s breathtaking (to me, at least), but it’s absolutely true. This guy (or gal) discussed fact after fact, and I couldn’t for the life of me figure out why the lawyer’s client should win.
Explain to your client how you’ll win simply to give your client some comfort that you’re a real lawyer.
Finally, your early case assessment should explain the client’s route to victory for one other, more personal, reason: Some in-house counsel like to sleep at night (without needing a nightcap). If a client picks up a new case with a menacingly large maximum possible exposure, counsel may start to worry. Sending your legal assistant’s undifferentiated summary of all of the relevant documents does nothing to ease the client’s mind. The client still doesn’t know what appealing story it can craft, consistent with the documents and anticipated testimony, that leads to victory. If you’ve come up with a way to win, speak up! If you can’t craft a way to win, say so expressly — we’ll have to think harder.
Maybe we’ll decide that we can’t win, but we can undertake some specific discovery that we anticipate will minimize damages.
But don’t do this to me:
“Plaintiff rejected our zillion-dollar settlement offer and wouldn’t even respond with a new demand. So this gajillion-dollar case will move toward trial.”
“What’s our plan?”
“We’ll do more discovery and see what happens.”
Is that supposed to give comfort? Confidence? A faint hope that outside counsel is a sentient human being?
We don’t play this game to knead the dough; we play the game to bake the bread. Figure out what we’ll do to win (or minimize damages), and plot a course to get there. Then share that thinking with your client.
That’s being a lawyer. All the rest is just running your fingers through the dough, so to speak.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
