Small Law Firms

Up All Night: Trial Eve

“What the hell is their argument?”

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sleepless Insomnia conceptual illustrationI had a half-day trial scheduled last week. It was a very simple breach of contract/unjust enrichment/quantum meruit case. I represented the Plaintiff, a corporation located in one of those big cities on a coast where they produce commerce and self-defeating electoral strategies for the Democratic Party. The Defendant is a local corporation. The value of the case was no more than a few tens of thousands of dollars.

It was one of those cases that always irks me when it’s time for trial. Given the small value of the case, and relative lack of complexity, we did virtually no discovery except that we served some Requests for Production of Documents and Interrogatories; those yielded very little information that we did not already have. There were some earlier discussions of settlement, but ostensibly, they were for a payment plan that was much less favorable than the contract terms of which the Defendant was in breach. All evidence in the case demonstrated to me a very clear meeting of the minds for a specific written amount of money and a clear breach.

This brings me to the day before trial. I prepped the direct of my client, my only witness. I then moved on to prepare my cross-examination of the witnesses listed on the Defendants’ witness list. I outlined (I use an outline and not specific questions) the subjects I wanted to press him on and quite easily shored up all of the minor deficiencies in our case. In doing so, I paused and asked myself, or one of my cats, or whatever inanimate object may have been within close proximity, “What the hell is their argument?”

I don’t know about other litigators, but the most uncomfortable moment I have in preparation is not being able to decipher what the other side’s argument is going to be. It is what I imagine it would feel like to be in charge of the Velociraptor cage in Jurassic Park and looking into the cage but neither hearing nor seeing Velociraptors.[1] Our job, at its core, is being able to figure out how to respond to things. It is, therefore, no wonder that the greatest discomfort comes with trying to prepare to respond to something to which we will need to respond without knowing what it is we will need to respond.

So I puzzled and puzzled ‘till my puzzler was sore.[2] No grand theory of the case, or trick, or even remotely coherent counter-argument came to me. The next morning, prior to trial, I called opposing counsel and offered to settle the case for the amount due paid via bank check. I did so for no other reason than to poke and prod similar to a poker player sitting at the table hypothesizing as to the other side’s cards so as to get a read. Over the course of the conversation, the Defendant’s attorney did not offer any real tells as to the strategy of the case. He did make some vague comment about seeking Rule 11 sanctions for one of the counts of the complaint, but didn’t reject the idea that his client would possibly accept such an offer. As I was putting the finishing touches on preparation with my client, I received an email. It was a counter-offer from Defendant’s attorney to show up at Court with a bank check for a portion of the settlement and consent to judgment as to the remainder. After a few emails back and forth, some phone calls, and a brief meeting at Court, we were putting on the record a comprehensive Consent Judgment enforceable with options for attorneys’ fees and interest.

There is a chance that this is just an instance of Occam’s Razor, and that perhaps the Defendant really didn’t have an argument. That won’t, however, stop me from fretting next time I am lying in bed the night before trial trying to figure out what the hell the other side is going to say.

[1] If you find this analogy inapt or a bit extreme, that’s because it is.  But I couldn’t come up with a better one.  If you have a better one, email me at [email protected], I’ll give props to the best one in my next column.

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[2] Obligatory Grinch reference to honor the season.

Atticus T. Lynch, Esq. is an attorney in Any Town, Any State, U.S.A. He did not attend a top ten law school. He’s a litigator who’d like to focus on Employment and Municipal Litigation, but the vicissitudes of business cause him to “focus” on anything that comes in the door. He can be reached at [email protected] or on Twitter

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