To quote one of the foremost legal scholars of our time, Kenny Rogers, all seasoned attorneys must,
“know when to hold ‘em,
know when to fold ’em,
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know when to walk away,
and know when to run.”
His counsel is as sage today as it was when he first offered it back in 1978, and it rang especially true recently after I watched the first few hours of a preliminary injunction hearing chaired by two of my colleagues.
Within the first few minutes of the hearing, it was clear we were out-lawyered and underprepared.
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In-house resources being what they are, our attorneys are lucky to get a few days of uninterrupted time in which to prepare their case.
Before you think we routinely commit malpractice, for sizable and/or engagements of significant import to our organization, we engage outside counsel. However, for more routine litigation matters, we tend to handle the case in-house. This was one such case.
Opposing counsel opened near flawlessly. It was clear she had spent many, many weeks, if not months, preparing for this day. She effortlessly demonstrated her knowledge of the facts of the case, controlling law, and her prayer for relief all without so much of a glance at her notes.
Our counsel proceeded at a bit more labored pace. He loudly flipped back and forth through the pages of his legal pad which displayed hastily scribbled notes. He misstated the timeline of the case and had to correct himself more than once.
To be fair, our counsel did a respectable job. If anyone had seen him on his own without the stark contrast of his opposing counsel, you would have thought he did fine. Not good, not great, but about average.
Unfortunately, after the first few minutes of the case, it was clear the die was cast. The judge was left hanging on every word that came from our opposing counsel.
And to seal our fate even further, the judge responded to an answer provided by our counsel with five little words that struck like daggers.
“Whoa, that’s hard to believe.”
Quickly recalling the sage wisdom of Mr. Rogers, we collectively realized the time to fold ‘em had long past — it was time to run. And run we did, straight to opposing counsel during a recess to inform her we were willing to reconsider the terms of the last settlement proposal she had sent our way prior to trial.
As attorneys, we are a prideful bunch by nature, and in that moment, it was difficult to swallow our collective pride and admit an early defeat. But as sworn defenders of our client’s best interests, a quick settlement was the only viable path forward.
By the time trial rolls around, it is easy to think settlements are out of the question. In fact, our pride generally blocks thoughts of a settlement from entering our mind after opening statements are delivered. But never forget, your duty to your client reigns supreme.
Don’t be afraid to fold ‘em, walk, or even run away. Service to your client sometimes demands it.
Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at [email protected].