Elsewhere on this website are articles detailing the legal methods and procedures of the two main types of litigation in the United States and the reader is invited to review the article on American Litigation and the article on Arbitration for a detailed description of the legal tools and requirements to bring a civil matter to hearing or trial in the United States.
The Unique Power of the Litigant in American Litigation
Like so much in the United States, our laws grant the individual tremendous power and freedom to interact with the political and legal system and allows individuals powers within the court process that are seldom encountered around the world. In the United States one can freely use the courts to seek monetary damages, to halt some one, including the government, from taking improper action, and to compel persons to appear and testify under oath and compel them to produce their documents. And it must be stressed that one is granted this tremendous power not because one is a government official or a police officer, but merely because one is a litigant and elects to use the courts to exercise such power.
Equally unique in the American system is the relatively passive role of the judge in most trials. Litigants almost always have the right to select a jury to hear their case, a random selection of six to twelve citizens who will decide who wins and the amount of damages awarded, if any. The judge's role, in such trials, is to act as an impartial referee, to instruct the jury on the law, but NOT to make any findings of fact, not to investigate, not to instruct the jury how to decide the facts, and not to assist the parties in presenting their case. Most judges will simply indicate to the parties and their attorneys that it is "their" case and they must decide what evidence to put in and how...so long as they conform to the rules of evidence and the procedures of the law and the court.
Thus it is the litigants who use the system to try their cases, the judge merely assuring compliance with the law, and it is the litigants who have the burden (and benefit) of determining how to collect the evidence, how to present it, and how to convince a judge or jury that they are "right." The court or the arbitration proceeding is, in short, a forum available to the litigants to demonstrate through their own efforts that they should win; it is not a governmental inquiry with an investigating judge. This is often called the "adversarial system," in that two or more contending parties are locked in combat and an objective trier of fact is to listen to their arguments and evidence and determine which of the adversaries is right. (In most other nations, the court takes an active role, charged with the duty of finding the truth by its own efforts of investigation and questioning with the parties merely stating their points of view and the court having the right and duty to call witnesses, demand documents to review, and question the parties. The court in those countries is the active investigator and trier of fact, the parties often passive participants in the process.)
Giving litigants the tremendous power to compel the delivery of evidence prior to trial by various discovery tools is the most unique aspect of American litigation and usually its greatest expense . Only in the United States can a litigant compel persons, whether parties or not, to testify in the lawyers' office or other location outside of court and outside of the judge's presence, but still under oath, answering all relevant questions posed by the attorney, with the answers being recorded in a transcript which may or may not be used later in court. (These are called "depositions.") Equally powerful is the ability of the American litigant to compel parties and nonparties to produce documents, answer questions about them, and/or allow inspections of physical premises. Parties can compel other parties to answer under oath in writing written questions, a discovery device called "interrogatories."
All these powers are granted to the person who elects (or is compelled) to enter the world of American litigation and long before the trial or hearing begins, one is confronted with tremendous drains on energy, time and money as the discovery process continues. Ultimately one commits more and more of one's time and even more money as the trial date arrives and it is not uncommon for an American trial to last weeks...or even months. There are rare trials that last years.
The reader is invited to read the various articles described above and elsewhere on the website for the details of how discovery and trial and law and motion work. This article shall now seek to educate the neophyte litigant to what to expect in terms of one's personal and business life when that process is commenced.
But the first lesson to be learned as one begins the case is to understand that one suddenly has power and rights to force other persons to respond to questions and open their records that exists almost no where in the world and are only available to a United States citizen once he or she enters a court room. The power is remarkable and, while it is expensive and while all the parties have roughly the same power, it is what gives American litigants the unique power to enforce their will upon witnesses and parties thus achieve results seldom available in other legal systems. As one client put it, "I have never had such power...more than the average police officer who is limited by the Constitution as to what they can search! The only problem is...the other side can do the same thing to me."
The Case Begins...The Ten Rules to Remember.
Someone has damaged you or your business or someone has sued you. You want your day in court and you want it as soon as possible. You would not be sitting there hiring a lawyer if you didn't need legal relief and since you know you are right, you are not willing to settle (or the other side is unreasonable in their demands) and you are in a hurry to get justice done.
You look around the lawyer's office at the elegantly bound thick law books, expensive furniture and listen to the description of the powerful tools of litigation that are available if you can afford them. You listen to the quick mind of the lawyer analyze your case and the facts, describe the law and the procedures you can bring to bear and you already know from newspapers, movies and television what courts look like and how judges act. In your mind the main question is how long will it take before you get your day in court and just how much it is going to cost.
In reality, over the next six months to three years you are about to learn what Queen Elizabeth of England said about war: that it is inherently unpredictable, that dire or wonderful events occur that are unforeseen, that those you hire do not always win every battle-and, most important of all, that when engaged in conflict your opponent controls your life and plans as often as you control his. In short, a battle, whether in war or in the court room, involves risk, strategy, some wins, some losses, flexible thinking...and most of all, determination to see it through despite setbacks, delays, and successful maneuvers of the opponent. You have in effect declared war on another person and as any good general will tell you, do not underestimate your opponent and do not assume that your conflict will be easy or conform to your predictions.
A primary task you confront is to create intelligent and appropriate strategy as to how to win your claim and your attorney will be working with you to formulate plans and proposed tactics. Flexibility will be required as will constant alterations to the plan as the case develops. However, before you and your attorney can form an effective team, it is important to understand some basic facets of litigation which form the basis of the process you are commencing.
Certain truths not often found in law books or in movies have to be learned from the beginning: Lessons such as the following are garnered as the litigation progresses. We normally advise our clients of the following ten practical truths of litigation:
RULE NUMER ONE: MUTUALITY OF WEAPONS EXISTS SO BE PREPARED.
YOU ARE GOING TO HIT YOUR OPPENENT IN WAYS THAT WILL CAUSE HIM OR HER SIGNIFICANT INJURY. HE OR SHE HAS THE SAME WEAPONS AT HIS OR HER DISPOSAL IF HE OR SHE HAS THE MONEY AND THE WILL TO USE THEM. YOU ARE ABOUT TO BEGIN A PROCESS THAT WILL INCONVENIENCE, ANNOY, AND ULTIMATELY CAUSE SIGNFICANT COST AND DAMAGE TO THE OTHER SIDE. BUT IT WILL ALSO DO MUCH THE SAME TO YOU. LITIGATION IS DEFENSE AS WELL AS OFFENSE: YOU ARE NOT ENTIRELY IN CONTROL OF THE PROCESS AND YOUR OPPONENT'S STRATEGY IS AS IMPORTANT AS YOURS...PLAN ACCORDINGLY AND DO NOT EXPECT TO WIN EVERY BATTLE.
One enters a court of law or arbitration normally convinced of the rightness of one's position and anxious to gather evidence supporting one's case and get it heard as soon as possible by the trier of fact. Whether in court or arbitration, it is common for the litigant to anticipate with eagerness how the opposing party or witness will be damaged on the stand before a righteously angered judge or jury and quite often the movie version of the dramatic court room scene will creep into one's day dreams with the opponent squirming on the stand and slowly being destroyed by razor sharp cross examination.
Equally appealing is the thought of compelling an opposing party to attend depositions or produce documents, to compel the opponent to suffer the embarrassment of long and detailed questioning by one's own attorney as the evidence is collected that one day will destroy the opponent before the jury.
Seldom does that day dream take into account the counter moves and strategies of the other side and the fact that they will be deposing you and building up their own case, often with equal enthusiasm and commitment. The right to a jury trial, the right to depositions exists equally for both sides and one must assume that the opponent will develop excellent countermoves and maneuvers and spring them on your case at the most inconvenient time.
A good attorney representing you will spend as much if not more time analyzing the opponents' best options and plans as your case and will often develop brilliant arguments for the opponents to advance or deadly strategies for them to use that could ruin your case. This can be very frustrating for the client who feels somehow "betrayed" that their own lawyer seems to be questioning the case or discovering weaknesses that the other side has not even advanced. In reality, such legal thinking is vital to success, for one cannot overcome the adversary's moves without carefully planning in advance how to avoid them and the best strategies are structured around anticipating opposing moves.
Usually, evidence will be developed by the other side which hurts your case. You will make errors in deposition. They will win some discovery fights and win some rulings of the court. They will not break down and admit they are wrong in front of the jury under withering cross examination and quite often they will develop arguments and evidence that truly hurts your case and weakens your chance for success. Victory is seldom easy and most cases go to trial precisely because there is evidence and arguments that supports both sides.
The other side can interfere with your carefully planned strategies and business plans. The other side can suddenly serve you with discovery that will take tens of hours to respond to during your busiest time or when you had planned a vacation. The other side will force you to spend money countering their moves or answering motions they file in court and the other side may very well delay discovery you wish or the trial you hope for long beyond the time you consider reasonable.
That is the nature of battle, of trial, of conflict and no system of law would be fair if it did not give equal access to the tools of litigation to both sides. Inherent in the system is the ability of the other side to inconvenience you and force you to respond just as much as you may inconvenience them and force them to respond.
In short, you are no longer in full control of the dispute the moment you file suit. You are locked in combat and must remain flexible, resilient, and aware that the court is NOT seeking to make life easy for you or to make your case fast and inexpensive. The court only seeks to create a fair forum in which both sides have equal rights and powers and the chance to plead their cases before an impartial jury or judge. The other side has the same tools as you and the court is not going to limit them. That, reasons the court, is how justice is done.
So expect to confront surprises, deadlines, missteps, setbacks, long hours, expense, great successes and apparent defeats. At all times understand that only when verdict is rendered is the matter really resolved and the process of litigation is one of continuous struggle in which each side exchanges blows with the other, with varying success. Keep your eyes on the goal and do not be distracted by day to day frustrations or the seeming unfair countermoves of your opponents or their counsel.
RULE NUMBER TWO: ADVANCE PREPARATION WINS CASES
FOR EVERY MINUTE OF ARGUMENT OR CROSS EXAMINATION, EXPECT TO SPEND AN HOUR IN PREPARATION. THE SIDE WHICH PREPARES THE BEST USUALLY WINS
You know you are right so you should just get on the stand, tell your story and any intelligent judge or jury will grant you victory, right?
Preparing a case for trial or arbitration, especially a business case, requires more time and document analysis than the lay person who has not been in court can possibly imagine. The rules of evidence in the United States are strict and before a document or testimony can be delivered to the court it must be "authenticated" and reviewed and often challenged in discovery by the opposing parties .
All possible ways to impeach either a document or witness must be fully explored by each and every party. The litigants are allowed to review any and all documents that may be remotely relevant to the trial and to examine under oath any possible witness.
And if your opponent engages in discovery, you must do the same, for you will have to have counsel present to defend you in your deposition or ask questions of third party witnesses in their depositions and you must attend document production since you must be sure you know what documents opposing parties may have that could hurt your case in trial. One thing you must avoid is to be "surprised" by a damaging piece of evidence not known to you suddenly being presented to a jury, whether forgery or not.
Despite television or movies, it is usually by arduous and boring review of documents and examination of seemingly unimportant witnesses that key evidence is discovered that can win or lose a case. Indeed, quite often it is the failure to find evidence...failure to discover the documents or warning...that can make the difference in the case, and often one reviews piles of documents hoping NOT to find a dangerous or damaging document. With e mail becoming so common, the review of electronic evidence may often include wading though thousands of e mails, often scattered all over the world.
Equally vital is the need to carefully prepare witnesses to withstand both cross examination in depositions and trial. Lawyers are trained to trick witnesses and even a witness telling the truth can often end up delivering evidence that, if interpreted incorrectly or answered ambiguously, can hurt one at trial. All the preparation requires careful planning, often mock trials and examinations, often repeated over and over.
This writer had a sobering experience in his first major jury trial in California. We had prepared well before the trial, spending hundreds of hours in preparation weeks before the case began, and the District Attorney, who had been assigned the case only a week before trial, began with a tremendous disadvantage, only interviewing his witnesses a few minutes before they took the stand, not fully knowing the facts and the documents at issue. As the case progressed over the weeks, however, he spent each night reviewing the case, working until midnight to master the documents and interview the witnesses. Already prepared, we did not put in the same night hours and the balance of the battle began to tip in his favor as his preparation each night outmatched ours. Only when it became apparent to us that he was putting in the hundreds of hours needed to win did we realize that we must match him and begin to work as hard during the nights of the trial as he...and only then could we win.
In civil cases the preparation begins not close to trial but long before the case is begun and it is a true fact of litigation that preparation is the key to success in almost every case. This takes time and trouble for the client...and costs a great deal o f money. It is also the reason why most cases are won.
RULE NUMBER THREE: BE FLEXIBLE AND ADJUST YOUR CASE TO EVENTS AND EVIDENCE
There is no point in preparing for a battle you planned long in advance, even if carefully crafted and meticulously prepared if you do not also mentally prepare yourself to alter all the plans if events require it. If the opponent has been smart enough to change tactics to avoid your planned mode of attack or if the evidence has altered so that the original case must be rethought, you must adjust your case accordingly and abandon previously held positions if that makes sense. The litigant who maintains maximum objectivity and can replan the case based on new developments or events will prevail over the litigant who is blind to events that transpire after suit is filed.
Few cases, like few battles, proceed according to plan. There are simply too many variables. Of course there is the opposing party who is seeking to develop their own case, gather their own witnesses or influence the witnesses to support their position. But there are many more than that. Economics of the situation can alter so that outside forces make the case either less valuable or more critical. (For instance, a key customer of both entities goes bankrupt so that their future business would have been lost in any event. Or, a customer reveals to a third party that they will now cancel you because of what your opponent has said to them that you did not know when the case was filed...)
Evidence can be discovered that was unknown or a key witness (your key sales manager for instance) can quit and become hostile or unavailable. Your opponent can develop an argument or produce a witness that never even occurred to you which radically alters the parameters of the case or demonstrates that your previous interpretation of evidence was simply dead wrong.
All these factors must be constantly updated and the case constantly reassessed in conjunction with the latest developments. Flexibility is how all battles are won as history attests and the rigid commander who fails to alter plans to conform to new realities will ultimately face disaster. Reality cannot be ignored.
After Pearl Harbor President Roosevelt realized that he could not defend the Philippines, ordered Macarthur to forgo his long planned method of defense of the Philippines that Macarthur had created carefully for the past ten years and, instead, to retreat to Australia (over the General's ardent protests). Roosevelt and his general had to delay the counterattack for at least two years until his other theaters of war were successful and the fleet rebuilt. Roosevelt ultimately won because he radically altered his tactics based on his opponent's moves. After Trafalgar, Napoleon never again sought to dominate England by sea but adjusted his goals and instead concentrated his efforts at land. For the next ten years his alteration at plans was a complete success. Why did he ultimately fail? Because he became rigid in his plans. Indeed, in Russia and at Waterloo, it was Napoleon's refusal to face the fact that he could not bring the Russians to decisive battle or break the English line, and to try, once again to commit to a frontal assault, that lead to his doom. Perhaps due to his own earlier successes, his arrogance made him blind to the need to alter his tactics from his Russian campaign onwards and the lack of flexibility was his downfall.
All strategists, from the greatest leaders to your lawyers, must alter plans to conform to realities, both good and bad. Your plan of strategy is a map...but a map which must be changed from time to time as events transpire.
RULE NUMBER FOUR: IT WILL TAKE LONGER AND COST MORE THAN YOU LIKE OR PLAN. TAKE YOUR BUDGET AND DOUBLE THE TIME AND DOUBLE THE COST AND YOU WILL PROBABLY NOT BE SURPRISED.
Courts are clogged with cases, each judge sees two dozen matters a day, even the arbitrator, who is probably only handling your case, does not only do arbitrations and has his or her own job or cases. The other side, if your case is strong, will seek to delay or will use expensive wasteful motions and maneuvers to try to delay the day of reckoning or wear down your resolve. Events beyond the control of any...illness, other cases of the judge not finishing, witnesses going away on vacation...will all cause delay, expense and annoyance. Your opponents failure to conduct an intelligent cost benefit analysis, thus spending too much on his or her own case, may force you to spend more on your own case. Factor that into your thinking or you will become too frustrated to keep at the struggle. Your budget of time and money must have a reserve for the unexpected.
A corollary to Rule #3 that your case will probably not go as you originally planned and that you will have to react and alter your own strategy as the case progresses is that such alterations will probably cost additional time and money. Merely reacting to the maneuvers of the other side will cost you additional time and money and that is true whether their maneuvers are successful or not.
One client, distressed that a deposition called by his opponent and which had actually hurt his opponent's own case had still cost our client thousands more than he had budgeted, commented, "If they are fools and waste their money, they force me to waste mine." That is a truism.
RULE NUMBER FIVE: CAREFULLY ALLOCATE YOUR RESOURCES AND DO NOT SPEND MONEY MERELY TO MAKE THE OTHER SIDE SPEND MONEY
When you are the side with more money, there is a tendency to spend a great deal knowing that it will often force the other side to match your expenditures. The idea seems appealing to commence a war of attrition hoping the other side will run out of money before you and succumb. That very seldom works.
This writer has been instructed perhaps fifty times in the last twenty five years to "outspend" the other side, to force them to their knees and bankrupt them long before they have a chance to get to trial. In our system, with so many powerful and expensive discovery tools available, and with justified discovery always being possible even if expensive, it is not difficult to concoct methods by which already expensive litigation can become remarkably expensive, often far more than most people can afford.
In those fifty or so instances, this writer can only recall half a dozen in which that method, often called "scorched earth litigation" actually worked. Indeed, the opposite effect is often created, with the opponent becoming increasingly committed to the fight as he or she spends more and more. People are inclined to become increasingly committed to the case, not give up, and even sell homes and assets to "fight back." As Hitler discovered when he bombed London, and Napoleon discovered when he burned Moscow, the usual result of such unbridled tactics is to solidify resistance, not break the opponent.
Sometimes such tactics can make sense if coupled with truly valuable discovery. For instance, a deposition in a foreign nation of a key witness, a process which can easily cost upwards of ten thousand dollars, may very well help the case and strain the resources of the other side. Having a larger litigation budget can be extremely valuable and is one more tool to be used to advantage...but it, alone, seldom results in victory and is just as likely to hurt yourself as the other side.
RULE NUMBER SIX: BEFORE THE BATTLE BEGINS, CONDUCT A VIGOROUS COST BENEFIT ANALYSIS OF WHAT THE CASE IS WORTH TO YOU...PUT IT DOWN ON PAPER AND REFER TO IT DURING THE LITIGATION
Sooner or later most litigants become emotionally committed to the case, quite often despite the case no longer making economic sense. Yes, you should adjust your goals and plans based on new events...but always keep in mind that litigation is not a game...you started it to obtain an end and you must maintain awareness of your underlying goal.
Few people can engage in the intense combat of litigation without becoming emotionally committed to the battle sooner or later. Either success in a motion in court, or some ruling that one considers wrong, can overcome the litigant with competitiveness and a desire to "win" regardless of the continued viability of the original goals. While determination and perseverance is certainly required for all but the easiest litigation, to consider the contest as a proof of prowess or a way to demonstrate who is the "better competitor" is usually misguided...and a very expensive mistake. Litigation is a tool and the weapons of litigation exist from the court's point of view to allow a fair hearing at which the judge or jury may discover the truth. Skill and hard work is required and the greater the skill, the better the chance of winning...but that still does not mitigate against the fact that the process is a deadly serious contest before a very powerful tribunal, not a game to be enjoyed or to be used for ego gratification. Remember what is at stake and budget accordingly.
And avoid the "Vietnam syndrome." That is the name for the idea that once one spends a great deal of money on the case, one cannot settle since one has spent so much to achieve the current posture. That same rationale was used by the United States to justify remaining in Vietnam despite increasingly obvious evidence that the war's gains could not possibly be worth the cost. One heard television pundits claiming that after spending "Fifty thousand lives," we could not withdraw.
Of course the truth is that the case is worth what is worth and the fact that you spent too much to get there does NOT increase the value of the case. If it costs you fifty thousand dollars to be in a position to win thirty thousand dollars, the case is worth...thirty thousand dollars. If it cost you ten thousand dollars to be in a position to win thirty thousand dollars, the case is worth...thirty thousand dollars. Do not confuse your costs with the value of the case (unless there is an attorneys fees clause awarding fees to the prevailing party which alters the cost benefit analysis considerably.)
RULE NUMBER SEVEN: KNOW YOUR ADVERSARY AND PLAN ACCORDINGLY
Dealing with a business adversary who is unemotional and will examine the case objectively is significantly different than dealing with an adversary who is extremely combative, extremely well funded, or emotionally involved in the outcome. Do not assume that apparent self interest will necessarily guide your adversary or that your case is the only matter on the agenda for your opponent. Attempt to view your case as they would view it and prepare your own plans taking that into account.
Perhaps fifteen years ago one particular auto insurance company decided that they would achieve an industry wide reputation for being "tough" so that over time claims against them would decrease since the cost benefit analysis for each particular plaintiff would not pay for the cost of trial that the company now insisted occur in almost every claim. They assumed that while initially expensive for them, ultimately lawyers would be too frightened to go to trial against them since they were so "tough." Their agenda was industry wide...but the agenda of each plaintiff was to seek money for a single claim. The difference in agendas was catastrophic for the plaintiffs since the insurance company routinely refused to make settlement offers more than fifty percent of what a case was worth and would quite often spend more to defend a case than the money in dispute. While the procedure eventually backfired (since their sales plummeted since no one wanted an insurance company that forced costly trials for even minor claims), there was a period of time in which unwitting plaintiffs would find themselves facing massive discovery and prolonged trials that, from the point of view of the particular case, made no sense.
This can occur in any case. Your opponent may have an agenda in which your case is only one small part of an internal "political" war that is ongoing within the power structure of the opponent. Your opponent may be involved in a prolonged negotiation with a third party thus cannot settle your case for reasons unconnected to your particular case.
Before filing suit is it thus critical to attempt to learn as much about your opponent as you can, to keep that information as current as you can...and not to make the mistake that your perceived logic is the guiding light for them. In every strategic decision it is vitally important not just to consider how the judge or jury will react, but what countermoves will be made by your opponent...and how much such countermoves will cost you. In another case known to the writer, a decision to force the opponent's hand by scheduling a long series of expensive depositions resulted in the adversary noticing even more of his own depositions to prove he could afford to match our move and more. It turned out that the adversary had just merged with a much larger company, had his litigation budget doubled, and our client had known of that fact but forgotten to tell us. He did not think it mattered. Obviously, it did since the budget now had to be increased by over thirty thousand dollars.
RULE NUMBER EIGHT: THE CASE WILL LAST A LONG TIME...GET ON WITH YOUR REGULAR LIFE AND DO NOT MAKE IT YOUR FIRST PRIORITY
You would not have filed suit if it was not important to you and the case must be carefully moved along. However, you are not in business to run a law suit, nor do your friends and family want to hear about the latest development day by day. It will take months or years before the matter is concluded and you have your business life, your personal life, and your other priorities to consider. The case is not the most important thing in your life, however important it may seem. Your business, your job, your family, etc, cannot be put aside for the months or years of the case; let the lawyers put in the total effort, that is their job. Stay involved; do not become fixated on it.
This writer has known at least three failed businesses and perhaps four divorces caused by a litigant becoming so preoccupied with the case on hand that matters that actually mattered much more were ignored. In one of those cases it was our own client and he committed an equally dangerous folly. All the litigant's energy was poured into the case and strategizing same; family problems were shunted aside and even critical sales calls were delayed for months while our client made long written analysis of each and every possible scenario at trial. Our opponent eventually collapsed (filed bankruptcy) to the delight of our client who claimed a victory-but his own business had been ignored for so long that it never fully recovered and his family was ruptured with his wife eventually leaving him. The case was a total victory, yes-but our client's life was effectively destroyed.
Your allocation of resources includes yourself, your time, your energy. The case will come and go, in fifteen years you will probably hardly remember it. Your family will hopefully last forever and your business is designed to support you forever. Keep your priorities straight. If you find yourself boring your family or friends with discussion of the case...if you find that it occupies most of your waking hours or you are dreaming about it...stop and try to reassess your state of mind.
RULE NUMBER NINE: ENJOY THE CHALLENGE AND STAY INVOLVED
No one cares as much about the case as you. The lawyers care, but it is one of many combats for them. For you, it is probably close to unique. While you should not become totally fixated on the matter (see Rule 8) you also should not ignore it. You should budget several hours a month to keep up to date on the events in the case, to keep in contact with your counsel, and to offer them instruction and information as to any developments that you have learned about the adversary. Keep your calendar marked with critical dates and make sure you are free to attend the truly important hearings in court.
Most of us will be in court only a few times in our lives and seldom will we have the raw power that the tools of litigation allow us to impose on an adversary. The maneuvering, the strategic planning, the courtroom or arbitration intensity can be electrifying which is why so many television shows and movies concentrate on the drama of the court room. Yes, it is expensive and yes it is exhausting; but it is also a tremendously challenging and exciting challenge and like any adventure, can be both thrilling and frightening. Recognize that...and enjoy it if you can.
The above may seem odd: how can one enjoy litigation? Actually, many of our clients do. It is intense, there is the excitement of working with a team to outmaneuver an opponent, the thrill of victory, etc. As Robert E. Lee stated as he looked over a battlefield after one of his great victories, "It is good that war is so terrible since otherwise we would enjoy it too much." That wise man understood that there is something alluring and compelling about conflict which can be addictive and focuses one much as an exciting game of sports or any adventure oriented activity, be it rock climbing, tennis, sky diving, etc.
You are in court because you have to be and your direct involvement is vital to the success of your lawyers. You are going to spend time, money and energy and you are going to experience remarkable highs and lows. You are probably only going to be in court, if you are in business in the United States, perhaps half a dozen times in thirty years. Yet, it is likely that those few times will be the most vital memories you have about your activities. As one client put it to this writer, "Litigation is the business equivalent to a hot war while mere competition is the business equivalent to the Cold War. It's nice once in a while to take off the gloves and really hit back hard."
To be effective in litigation, both defending and starting your own, is one aspect of business skill in this nation. It is a skill that must be mastered sooner or later and should not be considered a catastrophe but one of those aspects of American business life that is both unique and...compelling. Learn how to litigate, how to interact with your lawyers, how to evaluate a case..and you will have a tremendous advantage over your competitors who do not.
RULE NUMBER TEN: TELL THE TRUTH TO YOUR LAWYER AND THE COURT: DO NOT PLAY TRICKS, DO NOT VIOLATE THE CODE OF ETHICS, DO NOT PLAY GAMES.
Your lawyer must be told the entire truth or he or she cannot adequately represent you and you will find yourself at a severe disadvantage. Perjury cannot be allowed in the case nor can evidence be destroyed. This is not a game, as President Nixon and Clinton can attest...both men ultimately destroyed because they failed to heed the power of the courts and tried to evade and play games rather than merely tell the truth. Your lawyer can usually plan your case around those aspects that may seem to hurt your case...but if you do not confide in your attorney, the usual result is disastrous loss after great expense.
The most powerful "privilege" in the United States is not the doctor patient privilege or the husband wife privilege which are both rife with exceptions-it is the attorney client privilege which prohibits the attorney from being able to talk or testify about anything you tell him or her with the sole exception that if you say you are about to commit a crime (such as commit perjury or destroy evidence) the attorney client privilege may be abridged. That means that if you already committed a crime, the attorney is NOT allowed to tell anyone without your prior consent...including the government or the police, even if he or she is subpoenaed into court!
Why does such a privilege exist? The courts recognize that a client must be able to talk to the attorney to obtain adequate advice and must know that anything can be said without the client fearful that such information will be communicated to third parties or governmental authorities. It is vital for the attorney to know what the other side is going to discover and reveal and to discover it before trial so that the case may be adequately prepared. This writer learned that as a law student in his very first jury trial when, after hearing absolutely destructive testimony from the other side, the client leaned over before cross examination and admitted it was all true. To my astonished question as to why he did not tell me before trial, he stated he was too embarrassed. If I had had time, I could possibly have created a viable alternative defense, but by the time of trial it was far too late to get the right witnesses. Since then I have learned to communicate effectively to clients the most important lesson-I cannot represent you adequately if you do not tell me the truth, the whole truth and nothing but the truth...and that is true for all lawyers.
Equally vital is not to play games by "losing" evidence, evading telling the truth, or seeking to hide evidence or witnesses. One need not help the other side prepare their case-one can force the other side to ask the right questions-but to affirmatively eliminate evidence or not tell the truth under oath is to commit a crime (often) and usually makes a tactical problem into a major problem that is far far worse. Nixon was destroyed not by approving the break-in at Water Gate but by seeking to obstruct justice and destroy evidence. Clinton was destroyed not because of his affair with a woman but because he committed perjury by refusing to admit it under oath. In both cases a bad situation was made disastrous by violating the ethical and criminal law in a misguided effort to avoid the much lesser effects of misjudgment.
At the beginning of this article we emphasized that the courts are powerful and imbue the litigant with tremendous power. The corollary is that they protect their rules with tremendous power...and you must obey the rules and adhere to the law or you may face catastrophe...whether you are a person filing suit...or the President of the United States.
In other articles we discuss the various aspects of litigation from what occurs in a trial to handling a deposition correctly. If you fully grasp the implications of the ten rules above, you should be able to concentrate on the particular skills of the various aspects of litigation and maximize your chances not only to win...but to win without disruption to your life and your peace of mind. Litigation is a process both exhausting and exhilarating, requiring skill and determination, imagination and flexibility. It is the closest thing to battle one can confront in civilian life and, like battle, can be uplifting or destructive. It is what you make of it and the intelligent litigant will learn the skill of handling litigation and seek to master it long before the day of trial.