A MATTER OF JUDGMENT

           

Image of lady with covered eyes and a scale                With each passing year of practice, I have come increasingly to appreciate how important experience is in the successful practice of law. It’s not enough simply to ply the trade for many years, since a mediocre or poor lawyer can sell the same shoddy wares for 30 years. It’s vitally important to have a wide range of experience, and, more crucially, to learn from it so that the next client and case benefit. These ideas were loudly and clearly brought home to me as a result of spending 4-1/2 years—no typo—defending a case for two clients. In the midst of the war, I lacked the perspective and clarity on which to base mature conclusions. Now, having settled the litigation very favorably, just a day before a jury trial was set to begin, I have had the luxury of prolonged contemplation about the case, the issues, the opposing lawyer, and the adversary client, such that I feel confident in offering some observations that may be useful to litigation counsel and their clients. I hope to memorialize these ruminations in occasional future posts.

 

               One of the overarching principles I learned is that nothing is more important in the lawyer’s quiver than the possession and exercise of sound judgment that good experience should bestow. In this hotly contested lawsuit, in which the plaintiff seemed irrational and punitive, although the fight was over money due under a promissory note, I was always intent on resolving the dispute quickly and economically. Why did this uncomplicated case not settle quickly rather than metastasize into an inoperable tumor? It seemed clear to me then, and is even clearer now, that the cause was essentially my adversary’s poor judgment. He was a relative neophyte when he took on the case; I do not  believe he had worked for a firm or been mentored by a successful senior litigator who could have taught him the ropes and how to behave. His first mistake seems to have been to adopt his client’s wish to punish my clients for not paying back a loan on time. Experience and even a bit of judgment would have revealed that the case was a simple contract dispute—period. But when I thoroughly and admittedly debunked, with a ream of documentary evidence, his theory of “fraud,” rather than recognize something was rotten with his client and end the case, he simply proffered a new fraud theory—which the judge duly dismissed. Unwilling to bend to the truth, common sense, and economic reality, the lawyer devised yet a third theory—which the judge and jury would have laughed out of court.

 

               I don’t know which decisions were the client’s and which were the lawyer’s. But the lawyer is ultimately responsible for the case and what is argued and what may be proved. A lawyer who is properly serving his client, who owes the court and opposing parties not to bring pointless litigation or to prolong it once he recognizes its pointlessness, should not and will not be the progenitor of a travesty such as this case. The plaintiff’s lawyer, who always struck me as an emotionally immature bully with an axe to grind that had nothing to do with my clients, availed himself of every opportunity to cause legal and factual problems, which forced me to resolve those problems in court. The upshot was more legal brawling, with more written motions and court appearances, than I have faced in cases of real complexity that were based on good faith and involving many times the amount of money. We won nearly every fracas; the court awarded significant monetary sanctions against both the lawyer and his client; and we would very likely have prevailed on all issues at trial—as several judges suggested along the way. The extraordinarily poor judgment of the lawyer rendered the entire judicial system and its participants losers. It is fitting that my opponent took the wettest bath of all.

 

               It is critical that clients seek out and retain only those lawyers who have proven experience, who possess and exercise sound judgment, and who are emotionally mature enough to make appropriate decisions about the case as the cards are gradually revealed. I doubt that our plaintiff--an elderly man with a heart condition--who would have been much better served without filing a lawsuit at all, would have hired his lawyer had he known that he would be led for 4.5 years down a very long and dark tunnel. And if it was the client rather than the lawyer who drove the action, then shame on the attorney for abrogating his proper leadership role.