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Solo Contendere: Fighting over meaningless minutiae

I fall into patterns pretty easily. Even though my practice isn’t concentrated in any one county, I tend to go to the same places before or after court. After a morning in Scott County, I go to the Donut Connection — still one of the few good standalone donut shops in the Twin Cities (get here, Dunkin Donuts!). I tend towards Caribou in Hennepin, or if it’s a convenient time for lunch, Andrea’s Pizza. And after those 8:15 hearings in Ramsey, I head up the street to Nina’s Coffee in St. Paul. It’s close to home anyway, and they know me there. I get a mocha without whipped cream. So when I went to Nina’s this morning and saw a new barista reaching for the whipped cream, I was confused for a second. Only a second, though. I clearly could have stopped her; just asked her not to put whipped cream on my mocha. I didn’t.

Now, I’m not a fan of whipped cream as a rule. There are some things on which it’s OK; certain pies, I guess, or a sundae. I don’t mind it on a mocha, when it melts in and makes the mocha creamier. I just don’t prefer it.

I don’t know why I didn’t say something to the barista. If she had been putting something truly wrong in it, I certainly would have said something. At the same time, I didn’t want whipped cream. But she had made her decision, and it didn’t matter that much to me. So I watched her put whipped cream on my mocha, thanked her, and went off to the rest of my work day.

It’s silly. It’s stupid. It’s the worst kind of Minnesotaism. Actually, it’s the third-worst, behind passive-aggression and the phrase “Do you want to come with?” that gives you that vaguely dissonant feeling of waiting for them to finish their sentence. Point was, I didn’t care enough to tell her no.

I had a similar conversation with a retiring lawyer not too long ago, who was imparting words of advice to me.

“Everything is a power play,” he told me.

“No, it isn’t,” I replied.

He rolled his eyes. “Every time you say ‘yes’ to opposing counsel, you give them power.”

“But what if I don’t care?”

“You should care,” he told me. But I don’t.

He was also a solo attorney, with decades of dealing with power imbalances. He’d litigated against top law firms and pro se parties alike, and certainly had much more experience than I do. I can understand the idea of trying to maintain some sort of balance of power between the parties, especially when litigating against large firms. The problem is, for most things, I just don’t care enough to say no.

I don’t care if we meet Tuesday or Wednesday; I don’t care if we meet at their office or not; I don’t care (usually) if someone needs a brief continuance or to reschedule a meeting. Obviously there are some things I care about very much. There are some things that would prejudice the client or weaken the case. But if I don’t think it’s important for trying the case and it won’t hurt the client, whatever you want is fine with me.

I’m not sure I’m right about that, though.

I’m not great at settling cases because I don’t like settling cases. I like trying cases. And it’s possible that somewhere, in that great class called “negotiations” that I never took in law school, there’s a section on power dynamics. It’s likely, in fact. Maybe if opposing counsel always gets what they want in the run-up to trial, they will be less likely to give in during a settlement conference. I don’t know if that’s true, but it’s at least possible. Or maybe it’s useful to push back on something innocuous once in a while just to see how your opponent fights. Maybe my retiring friend was right. But it sounds exhausting.

I want to fight about statutory language and contract interpretation. I want to fight about facts, and who is guilty and not. I want to fight about things that interest me — that’s half the fun about solo practice, after all: (mostly) choosing your own cases. I really don’t want to fight about whether we meet at my office, my opposing counsel’s office, or a neutral location (I suggest Nina’s).

Reasonable minds can disagree on whether fighting over meaningless minutiae is a good idea, or for that matter, what is actually meaningless in the first place. I’m perfectly willing to accept that I might be wrong on this. I’m also willing to admit that I don’t have a strong preference, when maybe I should one way or another. I wish I had a solid answer, but I don’t.

Except about mocha. Don’t get the whipped cream. It’s better that way.

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