Every seasoned trial lawyer and litigator has experienced what I describe as the “perfect storm” in handling a matter. In my view, the perfect storm consists of the following:
- an unappreciative client who expects nothing less than a miraculous result;
- bad facts, including undisclosed damaging facts;
- rude and discourteous opposing counsel; and
- an impatient judge focused solely on docket control.
Most recently, despite being caught in the raging eye of the perfect storm, I somehow managed to find sunny refuge. To protect confidentiality, client information and other revealing facts have been changed.
The storm began early last year when I was somehow roped in to take on a great “can’t-lose” contingency-fee case involving more than $500,000 in property damages, clear liability, and an insurance carrier that was bound to pay up. The case at first blush, or at least as it was described to me, appeared to have great value and merit. Little did I know that storm clouds were forming beyond the horizon.
On its surface, the case was a simple breach of contract action involving property damage. Liability appeared to be obvious. The suit was filed, and the defendant tendered the defense to its insurance carrier which, coincidentally, was the same carrier for my client.
At first, the case appeared to be rather simple. Defense counsel “Alan” and I agreed to mediate after exchanging some basic written discovery. We each would get an expert and take the case to mediation for resolution. Not too hard. Having no idea of what was about to happen, I convinced the client to agree to an hourly arrangement going forward. I honestly believed the case would settle quickly and the client would pay far less in hourly fees rather than a contingency percentage of about $500,000 in damages.
Not too long thereafter, the storm grew angry. Alan switched firms; I was now dealing with “Richard,” who had taken over the defense. Suddenly, the case took on a life of its own. Contrary to the professional understanding that I had reached with Alan, I was hit with numerous document subpoenas. Depositions were scheduled unilaterally without any cooperation. In one instance, Richard refused to reschedule a deposition date to allow me to attend a medical procedure.
During one deposition, Richard served me with a baseless discovery motion in which he falsely stated that I had denied concurrence. I tried to resolve the issue, but Richard refused to discuss it with me. Of course, we were sent to the discovery mediator, where I explained that I had already provided what he requested well before the hearing.
While juggling the adjustment to Butzel, handling many other cases and appeals, and navigating the unilateral scheduling and cancellation of multiple depositions, I was then hit with certain “facts” and “documents” — none of which I knew about previously. Let’s just say that the facts were damaging, almost to the point of potentially rendering the action frivolous. Richard was practically salivating at a sanctions motion.
I almost withdrew, but I persisted in exploring one additional avenue of discovery to mitigate the damage. A break of sunlight seemed to appear when an independent expert hired by the carrier confirmed liability. But little did I know that another blow was coming.
Despite having that good report on my side, subsequent depositions, unfortunately, damaged the good stuff contained in my report. We would be lucky if we were offered a nickel. The client, likewise, understood that monetary recovery was highly unlikely — at least that is what the client led me to believe.
We proceeded to mediation, which turned into a multiple-day affair. With self-righteous confidence mixed with arrogance, Richard attempted to channel Michael Corleone from The Godfather Part II: “My offer is this. Nothing.” My client, on the other hand, had somehow managed to find a renewed, yet displaced, sense of confidence in the case despite the damaging facts.
A resolution did not look promising, to say the least. But I had done some reconnaissance work on Richard and learned that he had not tried a case in more than 10 years. I used that to my advantage at the mediation. Despite the damaging facts, I pounded the table (yes, I literally did this) advocating for my independent liability report.
In an attempt to make this too-long of story short and honor mediation confidentiality, Richard turned into Fredo Corleone and put an offer of more than $100,000 on the table to settle only with the carrier, leaving his client exposed for further liability. Richard also agreed to dismiss the case without prejudice only because the judge refused to give us any further time to settle. Once Richard was out of the picture, the defendant had to hire a new lawyer out of pocket and is trying to offer us additional benefits. Somehow, the rabbit had surprisingly popped its head out of the eye of the storm, and I feel like I had nothing to do with setting up the trick.
I had survived this perfect storm, but learned some good lessons, a few of which are rudimentary, but have become distant after many years of practice:
- Before you file a case, don’t just take your client’s word. Explain that time will be needed to thoroughly research and review documents, emails, and more, especially since such materials are likely to be produced in discovery. New discovery rules provide for early disclosure, so you might as well perform as much discovery work before filing as possible to avoid the fret of deadlines.
- Follow every phone call with opposing counsel with a confirmation email. Most good lawyers honor their word; better practice requires documentation. This is especially true when opposing counsel violates your trust. Document. Document. Document.
- For the first status conference, always ask for as much time as possible. You’re going to need that time and it’s going to be much harder to get a judge to cooperate later on, even if extra time is needed to complete a settlement. Cases today are document intensive, especially with emails, texts, and social media. No matter how simple you think a case might be, there really is no such thing as a simple case anymore.
- Get help when you start to feel overwhelmed. To paraphrase noted trial lawyer Joe Jamail, a lawyer who is not emotionally invested with his or her client is not effective. I believe that statement, but only to a certain degree. I perhaps overthought this case and focused too much on what I thought were damaging facts. More often than not, it’s a good idea to have a second pair of eyes look at your case, especially after you’ve become entrenched in its handling. As much respect as I had for the late, great Joe Jamail, becoming too emotionally involved is not always a good thing.
- Remember that perception is everything, especially at mediation. Even a bad case has one sliver of a good fact. Dig deep, find that fact, and use it. It could be your proverbial rabbit.