Litigating in “Easy” Mode

Recently, I did a settlement conference. My client and I met at the courthouse. We also, of course, encountered the other lawyer for the first time, and the opposing party who had sued her, me for the first time, and for my client, the most recent of many, many times as they have known one another for a decade or more before this dispute arose.

We lawyers exchanged professional pleasantries, and then I told him that I had prepared a countersuit, and that my process server has been very frustrated trying to get the other party served.  As it happens, I have a service copy of the lawsuit right here in my briefcase.  So here you go, you’re served now.  He thanked me, coldly, and then we awaited the attentions of the judge.

The help and settlement guidance we received from the judge was swift and minimal. “There are two rooms by the doorway, I’ll be out to help you when I can. Go. Next item on calendar ….”

EasySo we retired to the rooms that the judge had indicated, and there I was vaguely horrified, and my opposite number was equally horrified, to see our respective clients hugging and exchanging friendly, warm greetings as though it were a family reunion.  I asked if we could maybe get to work, so that later everybody could get back to being friends with the suit settled. We gathered in a single, tiny conference room to speak together, and my client suggested the idea of everybody dismissing their respective lawsuits, and everybody just walking away. No one take any money. The other party said that she thought that was a good idea, too. Then my client turned to me and said “Do you think that’s OK?”

What I wanted to say was, “Hey, Other Party? That lawsuit I just served you with? Point at it and tell me that it’s frivolous. Get mad! Shake it in my face and call me a name! Tell me you’ll defend it to a jury and on appeal if need be and that there’s no evidence and you’ll hide your assets from me even if I win. Threaten me! Say you’re going to report me to the bar! Then I can tell my client that this deal is a good idea.”

HelloBut I didn’t. I’m not Inigo Montoya (though sometimes I wish I were, that would be fun). The mutual walk away is a good result for my client for a lot of reasons. And I barely had to say or do anything that morning — everything I’d needed to get the result I wanted, I’d done before I walked in the door that morning. Such is the practice of law sometimes: when you do it right, you demonstrate spezzatura. This is what a lawyer’s spezzatura looks like: say nothing when you’re winning.

Bonus question for the non-lawyers: why did I want the other side to threaten me and mock my lawsuit? After all, I sincerely thought it had substantial merit and would have enjoyed prosecuting it. And it is never pleasan to endure such a harangue. But I wanted it anyway. (Lawyers, or at least litigators, give the others a chance to answer before you tell them. I want to see how unique this is to our profession.)

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40 thoughts on “Litigating in “Easy” Mode

  1. I doubt I will ever see this as a litigator.

    That being said, I’ve been thinking about the adversarial process and motivated reasoning. I’ve been responding to a lot of discovery from defense counsel lately.

    I can’t tell you how many times the Defense ask more than 35 specially prepared interrogatories and tack on a boilerplate declaration that the unique nature of the litigation makes it necessary to ask more than the required amount of declarations. I once had well over 100 requests for admission from defense.

    I think this is BS. The number 35 was come up with for a reason and most litigation including complex litigation should be douable with 35 specially prepared interrogatories. At least on the first set. This is especially true in my field which has a small bench and a lot of general orders and standard docs that lay out a lot of the information.

    Yet the defense counsel ask away and try to abuse the discovery process. We are required to zealously advocate for our clients but I wonder how much cognitive bias/motivated reasoning is going into defense counsel’s head to make them think they need to ask more than the legally mandated amount of rogs. How much is this a game of “I need to annoy the plaintiff for the sake of my client and ask about things that are already equally available to me because of standard rogs and forms.”


  2. Officious is a word I would use to describe when defense counsel go well above the limit on rogs and other requests for production. Certain firms seem to be known for it in my field.


  3. My theory is that if they were jerks it would feel much more satisfactory to make them suffer, and would in some way retroactively PROVE the righteousness of the (totally justified) harm your lawsuit would inflict on them. (I think this because it is a nasty little opinion that tends to creep into my head in MY job, where it doesn’t really belong, and then I need to exorcise it.)


  4. Because you are Inigo Montoya, and you always try to goad opposing lawyers into punching you so you can count their fingers.

    Or, because the more the opposing lawyer rants about what a dirty trick the countersuit is, the more you know it’s had the desired effect.


  5. I would guess its because then your client would know you are totally worth the money when you actually give them the bill. There is the proverbial tradesmans story that basically goes something like this: you show up, do 30 seconds work and then present a bill for two thousand and five dollars. Customer screams that you only did one little thing. You say “right, that is what the $5 is for. The other 2k is for knowing what to do.”



    • My father once, early in my career, asked me what I did that day.

      I told him I removed a semi-colon from a large coding project. That was my entire day.

      He looked shocked and asked how that had taken a degree and a full day. It was finding the stupid thing and realizing what it was doing that took all day and a degree. :)

      Of course my bosses got told “Cleared Bug XXX. Problem was caused by if/then logic failing in cases X,Y and Z” because “Some idiot wrote if(X<10); { STUFF}" sounds less professional.


      • Yeah, that’s actually a pretty good cognate to what I did.

        You’d acquired a massive and specialized education, and garnered substantial experience using that knowledge. Thus you possessed the skill and expertise to know that the semicolon was out of place. This was the real value you deployed. That and the painstaking, exacting, detailed, eyeball-boiling scrutiny you gave the code in order to locate that single damnable character.

        Deleting a single character is obviously a trivial exercise. Knowing how to find that single character to delete? Impressive.


          • As I understand it, the hourly billing rate did not exist until the 1950s. Firms used to charge flat fees before then. In the post WWII era, lawyers felt that they were losing out of income to doctors and other professionals and the billable hour was born.

            A professor of mine in undergrad had a lawyer father. His brother in law was also a lawyer. My professor said that his dad acted in absolute horror when the brother in law suggested switching to the billable hour model,


            • his dad acted in absolute horror when the brother in law suggested switching to the billable hour model,

              And rightly so. I have worked under billable hours, and loathed it. I hate everything about it: the mechanics of recording and coding my time, the perverse incentives the practice creates, and the gamesmanship it entails. No billables is one of the many reasons I much prefer the plaintiff’s side.


                • Litigate paranoid! You should be contemporaneously recording your hours on every case you work, whether contingent or not, in which there is even a tiny a potential for making an attorney’s fee motion. However it got to be that way, the hourly rate model is now the standard upon which attorney’s fees are awarded by courts as a remedy. Failing to track your time consistent with the general standard of care is grounds for denial of such a motion and therefore to deprive your client of a remedy to which she is entitled — and there would be only one person at fault for your client not recovering that remedy, the person you LEAST want to be at fault for that sort of thing.


              • One of the great things about immigration work is that billable hours doesn’t really translate. Your clients are usually not wealthy enough to afford it and the way immigration proceedings go, it doesn’t make sense to charge by the hour.


            • Sure, but in the sense that the bills were just “for services rendered” in an amount they lawyer thought fair. Not that all legal costs were flat-fee by prearrangement.

              The billable hour model was a considerable LOSS of authority for attorneys, as it meant their clients no longer trusted them to bill fairly.


              • An interesting factoid, one of the ways that Bar Associations sought to work against Jewish lawyers in the early 20th century was to prohibit the listing of prices for various services. Apparently Jewish lawyers in early 20th century America would have a standard list of prices for different services. The Bar Associations did not like this and acted accordingly.


      • I just billed a client about $4000 for 4 lines of code. But oh, boy, those 4 lines.

        I think we embedded programmers are the most extreme version of the “full day for one line of code” type of work. So much of what we do is figuring out where one bit in one register is wrong.


        • Everyone few months, when compiling, I turn the warning flags up to “warn me of all the things” and do a cleanup. I’ve got a few assignment statements that should have been equality statements that way. :)

          Mostly I compile it “Just the big warnings, please” mode.


    • I think it was Isaac Asimov who had a version of this as a joke. A society lady goes to her hairdresser and begs him to do something special for the upcoming soiree. He takes a ribbon and arranges it through her hair doing a little of this and a little of that. When she looks in the mirror she raves about how marvelous it is, and asks what she owes him. He states a figure, at which she exclaims “That much for just a ribbon?” He then unravels her hair and hands the ribbon to her, saying “The ribbon, madam, is free.”


        • Every firm I worked for required me to say I spent X on Case Y even though all are contingency fee cases. Though I suspect most fee disputes in contingency fee cases end up being about reducing the percentage of the contingency fee.


          • I work mostly in personal injury and workers comp. In theory there might be attorney fee discussions. In practice, there aren’t. At least not around here. We do in fact track hours in the oddball other sorts of cases. Also, and this might be key, is the “every firm I worked for” bit. I work for a guy. Yes, it is a firm. It has his name. He doesn’t want to track his hours on some theoretical-but-not-really possibility of needing it for a fees motion. This also might be regional. I have had the “it is so much better not tracking billables on the plaintiff side” discussion with any number of lawyers and paralegals in this region. I have never had someone tell me they track their hours on the plaintiff side for PI cases. But maybe in other jurisdictions they do.


    • This is really interesting and touches on something I’ve struggled with in the education world for sometime. Many young or not-so-experienced/talented teachers will look at what they see better or more experienced teachers do and think, “I’ll just copy that.” But they can’t. You can’t just copy my room design or use the same words with a child that I did or grab a copy of my lesson plan and follow it… even to a T. You can’t just know the what and the when and the where. You have to know the why and the how. And this is far more complex than it often seems. But these new/poor teachers — being new/poor teachers — don’t know this. So rather than engage with their more experienced colleagues and ask the questions necessary so they can then emulate a successful approach, they just observe, borrow, and go. In fact, an industry has popped up around this, with teachers selling lesson plans and activities to one another online. And while there is ample value in collaborating and there is no reason to re-invent the wheel, this particular mindset seems really damaging to me.


  6. In immigration work, I’ve had more than a few cases where the government lawyer decided to give my client legal status without much of a fight in Immigration Court. They either had few or no questions on cross examination or in one case said to me before the hearing that they had nothing on my client so why don’t we just do it on the papers after my client swore that everything in his application and evidence was true.


  7. Quick questions I’d need answered.

    How much of an indicator would mockery be of the lawsuit resulting in further litigation?

    Would this further litigation result in more money in your pocket?


    • I strongly suspect what you’re considering is incorrect. It was not (and never is) my desire to “churn” a file so as to extract more attorney’s fees to myself in pursuit of a resolution that is more satisfactory to a client. My philosophy is that the happier my client is, the more work that client will steer in my direction in the long run, and the bitter taste of a high attorney’s fee bill melded with the memory of an opportunity for a more-economic settlement is going to be an enduring source of client unhappiness. So “churning” a file is ultimately counterproductive and not my goal — not only out of a sense of professional ethics but also out of an understanding of my long-term business interests.

      To answer your questions, mockery of the nature described herein is actually zero indicator of further litigation between the parties. Early in my career, I would have interpreted it as a sign that yes, more litigation would be coming down the pike, but experience tells me that this isn’t true. If there were more litigation, yes, I’d be paid more than I have been. As I indicate in the previous paragraph, though, I’d fear that the greater money in the short term might diminish client loyalty in the long term.


      • Well, from a non-lawyer perspective, my first thought was that of “why would I want my opponent to engage in a particular behavior if I were a lawyer” and one of the answers was “I get paid by the hour and so the more hours, the more I get paid”.

        An opponent who said “hey, we’ve got a situation where we can all just settle here and go home” followed by someone saying “why would this have made me vaguely disappointed” could plausibly be explained by the whole money money money oh I love money money money homo economicus thing.

        But, as you point out, the mockery is not an indicator at all for further litigation.

        So I can throw out that answer without needing an answer to the second question and see that you’ve already answered the third one I’d ask when you said: “My philosophy is that the happier my client is, the more work that client will steer in my direction in the long run, and the bitter taste of a high attorney’s fee bill melded with the memory of an opportunity for a more-economic settlement is going to be an enduring source of client unhappiness.”


      • Maybe it was more a case where you were unable to demonstrate your expertise — in short, you got paid for work, but never got a chance to demonstrate to the client that it was worth it. You know intellectually that it was and know how much work you put in, but you’re also aware that the client (in this case) more or less took all that on total faith because it never got used.

        Not as a point of pride or showing off, but simply like anyone who builds or creates something — and then finds it’s not needed. “But I did all this work…..” is not an uncommon feeling.

        There’s been project prototypes, interesting or good ideas, all sorts of stuff I’ve built for various jobs that never got seen. Because we did a 180 somewhere in the design phase, or the client changed their mind, stuff like that.

        So I’m left with work that might have been 40 or 80 or 100 hours of my time, some of it really good, solid, awesome stuff — stuff I got paid for, and it’s just sitting there. Of no use to anyone, just packaged up as part of ‘related work products’ to a client or archived against some odd future need.


  8. I expect the answer is something like what I used to encounter during talks with equipment vendors that stretched out over a period of weeks. If they ranted that the questions I was asking on behalf of my company were nonsense, that only an incompetent would ask them, I knew that either (a) they knew the answer and knew how bad it was or (b) they didn’t know the answer and were terrified of how bad it might be. Engineers who know they are selling you a solid system don’t rant and rave, they just answer the question, or tell you that they don’t know but will get back to you by a specified date.

    So, lawyers who rant and rave and threaten know they have a weak position?


    • This is a lot like dealing with an audit, too… on both sides.

      When you see someone respond to an audit with bluster and “how they just don’t understand how we do things here” you usually have a case where either (a) they didn’t know that they were messing something up and the audit was a nasty surprise; or (b) they knew they were messing something up but they didn’t tell anybody because they were afraid of the fallout, and now they’re going to actually have to do the non-technical part of their job (convincing people to change) which is icky to them.

      Whereas the negative audit findings that are accepted with, “Yes, we’ve told department Y that there are serious security implications with their business process and we’ve been directed not to force them to change” means (a) they know it’s broken, (b) they’ve tried to fix it, and (c) they have figured out through experience that if they’re not allowed to fix it they need to get Some Authority to Put That in Writing, and they Have It in Writing.


  9. why did I want the other side to threaten me and mock my lawsuit?

    Because the degree to which the opposing lawyer threatened/mocked it was directly correlated with its strength and the hugfest prevented you from ever finding out?


    • This is pretty much it. As I explained in another forum:

      [W]ithout the ritual temper tantrum, I have substantially less emotional assurance that a settlement reached so easily actually represents the full value that was available to my client. Given that the other side agreed to our opening offer so easily, I have to wonder if I left money (or something else of value) on the table. I probably didn’t, and knew that rationally, so I didn’t interject, but I’m haunted by it a little bit.


      • ah, but as so many of us so quickly forget, It’s Not Our Money! all we can do is advise the client that she may be giving up a little too easily.

        ETA: and especially if the two parties know each other, they likely have values other than money at issue.


  10. why did I want the other side to threaten me and mock my lawsuit?

    You like contentious settlement conferences because they help keep your skills up.


    • This is actually true!

      It isn’t the principal reason that I wanted to go through the ritual temper tantrum, but it is a true statement: I didn’t feel like I got to sharpen and practice my skills with the easy agreement we reached. I did get to exercise my patience: shut the hell up when you’re winning lest you say something that inadvertently changes the favorable prevailing dynamic. That’s an exercise in willpower that can be difficult at times.


      • I’m not sure what “skills” would have been kept up, but those of us who actually prefer to try cases do so because there’s a drug-like high to the argument with an (often) quick payoff. Here the settlement (especially an easy one) is sad because you don’t get that high from this case.


  11. When I write a script, and I think it’s a good one, I make it available to the other admins and tell them that I wrote a script that makes it easier to do that one thing we always have to do.

    And then a week later I walk in and they’re doing that thing by hand instead of using that script that I invested my time and effort into making and I’m all like, “Hey, why aren’t you using my script?!”


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