Every once in awhile I have to take a step back and remember that just because I am a litigator, it doesn’t always mean that I am simply a hired gun. The sign on the door says “Attorney and Counselor at Law.” (Ok, so I don’t really have a sign on my door, and if I did it wouldn’t say that, it would say “Dodger Fan Parking Only, All Giants Fans Will Be Shot on Sight.” But that is neither here nor there.)
During a litigation matter, the litigants will take on numerous psyches. They will be determined and adamant that they are right, they will inevitably become cost-conscious and willing to throw in the towel simply to stop the economic bleeding, they will resign themselves to the fact that they may lose, and when the matter is finally over by virtue of a settlement they will second-guess their decision to allow resolution without actually putting their case to the test.
And it is the job of the litigator not only to vigorously represent the client, but also to manage these psyches, because sometimes the goal of the litigant is not the option available through the litigation process, however litigation is the only option. For example, I had a client who accepted a settlement that would pay him basically the same amount of money that he had spent thus far in attorneys’ fees, but he was thrilled because in the process the other side admitted that he was wrong. That apology made the rest of the litigation process worthwhile to my client.
I bring this up because it happened just this past week. Unfortunately it took a trip to the hospital to make it happen, but the world works in mysterious ways. Without getting into the minutiae, my client was sued for a business deal gone badly; a business deal between friends. A mere two weeks before trial, after a year and a half of fighting and tens of thousands of dollars had been spent, the parties settled. And all it took was getting the two parties into a room without the attorneys.
During a deposition of one of the other side’s key witnesses, a medical emergency forced the deponent to the hospital. And an amazing thing happened: the parties worked together to care for this ill individual. It was the next morning, as the deposition was set to resume, that I mentioned to the other side the unusual demonstration of teamwork. Usually, the parties cannot stand to be in the same room with each other, however here, the history of friendship and the common focus of the witnesses’s well being, prevailed. When I remarked to the other side my perceptions, the response was amazing: unqualified agreement.
I took my client aside and asked him what he really wanted to happen. Want to know what he said? He wanted his friend back. I asked him if he thought that the other side wanted an apology and he said no; he figured that he wanted to be told that there was no malice in the breakdown of the business relationship, that it was all a misunderstanding. I told him that based on my conversation with the other side, if there was ever a chance for that to happen, this was it. So I suggested that he take the other party outside and try a heart-to-heart. And that was all she wrote. The two of them worked the dispute out amongst themselves and they walked out arm-in-arm. Do you believe that??
As I said earlier, being a litigator also means being a counselor, determining what the client really wants and taking all available opportunities to achieve those goals. In my instance, this was not a process that could have been short-cut, but the opportunity presented itself and the counselor part of the job took over and achieved the best result for the client. In the end, the goal of the other side was not money but confirmation that my client did not intend to cause him damage (although they did get money and were happy to do so).
So, there you have it. Rob Cohen, “Counselor At Law” and attorney… I am not saying that all litigation matters have happy endings, but it can happen, you just have to see those opportunities and take advantage of them.
Have a great week and keep your eyes open for opportunities.