Have you ever tried to explain the civil litigation process to a client through metaphor or simile? In my experience, there are some comparisons that are apt, and some that are not.
Litigation is not like poker
In Abraham Lincoln’s day, lawyers would wait until trial to reveal their evidence, which likely made for good drama and unprepared witnesses. Since the 1940s, however, the American legal system has required pre-trial disclosure of evidence in the discovery system, ending the days of “gotcha” trials.
In poker, no player knows the strength of the cards in the other player’s hands. Often you will hear litigants, and attorneys, in a settlement negotiation say that they are reluctant to “show their hand,” meaning what they would ultimately accept. In this context, the comparison may be apt, as each side metaphorically lays down a card with each offer or counter offer. At the end of the process, however, it usually makes sense for both parties to show all their cards so that a rational settlement can be achieved. Sometimes you can even split the pot. Leaving mediation without getting the other side’s best number is not an effective use of the tool.
American Litigation is sort of like American football
Football is a game of inches. Litigation sometimes feels like this too, as lawyers review document by document trying to scratch out a first down. A lawsuit kicks off with a complaint and the opposing team returns an answer. The two sides then slog it out to an ultimate conclusion. Litigation, like football, involves offense and defense. I tell clients that when they are being deposed it is pure defense. You don’t “win” your own deposition. In football, however, you can score on the defense.
In civil litigation, the client is the team owner. He doesn’t have to be good at football. He doesn’t even have to know the rules or anything about the game. He will demand a win and may switch coaches if he doesn’t like how things are going. (If a team switches coaches in the middle of the season, or in the middle of a game, that is usually a sign of weakness.) Wealthy owners may be more likely to win, but the Green Bay Packers win lots of games too. Larger cases definitely require a team approach with a good quarterback. And, like football, the contest is played out in a large building paid for by the public. They way litigation is most like professional sports is that it has a referee in the form of a judge. Just as a football game can be lost with penalties and bad calls, a lawsuit can hinge on a motion for partial summary judgment or motion to compel evidence.
Litigation is like war
Not to be hyperbolic, but litigation really is most like war. War is to be avoided if possible. War is bad for all participants. War is unpredictable and new parties can enter the conflict on either side. Most importantly, war requires resources. It can be expensive and drawn out. It tends to escalate out of proportion to the initial dispute.
But, sometimes war is necessary. World War II was the equivalent of a bet-the-company litigation. Like war, litigation can be resolved at any time under any terms agreed to by all parties. And, these days, litigation is like trying to wage war with a very robust United Nations insisting on multiple peace conferences.
Jury trials are like elections
A party or her lawyer may state with confidence that she will let a jury decide the case. Former UK Prime Minister David Cameron was confident when he sent Brexit to a referendum, however, and it did not turn out as he expected. Jurors decide on emotion, spin, personal experience, and a hundred other unpredictable intangibles. If we are frank, most lawyers skew Hilary Clinton in terms of education, living in an urban area, and other demographics, while more than 50 percent of jurors probably skew Donald Trump. Trusting the polls and trusting a jury are equally dangerous.
Litigation is like life
Life’s not fair. Stuff happens. It is better to look to the future than the dwell on the past. Don’t hold grudges. The best revenge is a life well lived. Do your best and move on. Time heals all wounds.
V. John Ella is a litigator at the Minneapolis law firm Trepanier MacGillis Battina P.A.