Trials: a Failure of Lawyering?

In a recent mediation, an attorney shared with me the interesting comment that: “Trials are the result of failed lawyering.”  While that may overstate the case, it struck me as a pretty wise perspective.

While trials have a sacred place in our constitutional, historical and jurisprudential legacy, for most clients they are expensive and terrifying, with uncertain outcomes.  They are a roller coaster with a propensity for ejecting riders from great heights.   

As counsel, we are somewhat inured to the terror of public speaking.  We forget what it is like for a client lying sleepless at 3:00 a.m. facing the prospect of being cross-examined in public the next day.  If you give most people the choice of:  (1) being up in front of a judge and jury for hours answering a lawyer’s questions, or (2) being locked into a dark basement full of snakes, they start asking how big the snakes are.

I have taken a lot of clients through trial.  Some have had good outcomes.  Not a single one has ever said:  “I hope we can do this again soon.”  

So, how do we help clients resolve serious disputes without the torment, delay, and cost of trial?  

  • We become better listeners, trying to learn what the client values instead of what we, as attorneys, may value.

  • We become better negotiators, looking for convergent interests, creative solutions and opportunities for resolution short of the trial process.

  • We treat mediation seriously, bringing prepared decision makers to the table and working hard to find a path to resolution.

Trials may constitute the pinnacle of our professional achievement as attorneys.  In most situations, however, taking a case through verdict may represent a failure of our most important duty: to protect and assist our clients.