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.