Litigators

Sometimes You Have To Fight

Sometimes, you just can't get to the settlement. Fine, then get over that fact and fight.

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Any good trial lawyer tries to resolve her client’s disputes before they become full on litigation. But some disputes cannot be resolved and have to be litigated. To serve your client know when you have to fight and then focus on that.

An experienced trial lawyer once told me that when a civil trial begins, “There are two lawyers in the room and at least one of them is an idiot.” I get it (if I don’t completely agree with it): at least when viewed in hindsight, every litigation should have been resolved before ever getting to a jury. Indeed, most disputes should never even get to the litigation or arbitration stage to begin with.

Emotions run high, though, and that motivates a lot of individuals, including those who run companies, to push for a fight and to sue or defend when they should just settle. The experienced trial lawyer is right that plenty of us should be pushing our clients to settle since it is in their interest.

Yet, while one of those lawyers might be, in my colleague’s words, “an idiot,” what about the other guy? You might represent someone in a dispute that you know should be resolved, but you cannot get your adversary to agree to it. Or, more likely, you cannot get the adversary to agree to what you and your client consider a settlement that is “reasonable” (one of the most fantastically over and misused words when it comes to settlement discussions). What do you do then?

The short answer: you fight.

Of course, if this really is a dispute that should be resolved — the amount of money doesn’t make sense; it will cause more agita and frustration to litigate than to deal with a crappy settlement; your client is just going to lose in the end; whatever — do whatever you reasonably (pun intended) can to resolve it. Don’t give up on pushing your client to settle. Don’t give up on pushing your adversary. While I don’t suggest begging, as such, I once heard one of the nation’s top criminal defense lawyers joke (or perhaps it was not a joke) that when he buys his suits, he gets an extra pair of pants for each jacket since he wears through his pants by getting on his knees to beg prosecutors to give his clients a good deal. It is not always thus, but this experienced lawyer makes a good point, which is that sometimes you really need to push to resolve a matter.

But sometimes it won’t work. You cannot get to the settlement. Fine, then get over that fact and fight. I’ve seen too many lawyers weighed down by how “unreasonable” it is to keep litigating a matter, or how “unreasonable” their adversary or the judge or client or whomever is being. Fine — everyone is unreasonable. Deal with it, put your fighter cap on, and figure out how to get the best result you can.

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We are not our clients, and we certainly are not our adversaries or judges. We cannot control what they want. We are obligated to bring about swift resolutions when we can. But when we cannot, as trial lawyers we need to fight as hard as we can to serve our clients.

john-balestriereJohn Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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