Finding Deeper Meaning in Litigation

Hi All,

Through our podcast, website, and social media we have been thinking a lot about the law and being lawyers. It is so easy to get caught up in the day to day grind of being a lawyer that often you cannot see the forest for the trees. This week we decided to zoom out a bit and look for a deeper meaning in litigation.

So much about the way we think about the law centers around the drama of the courtroom and that is where litigators practice.  Civil law and civil litigation is deeply rooted in our society.  To quote a classic movie “litigators are the scariest kinds of lawyers.” (Hopefully you know this, but if you do not this is from Clueless.") 

Litigators are often portrayed as sharks or villains in the media.  And sometimes on the other side they are portrayed as fighting for the underdog.  But no matter the portrayal - it is usually fighting. Although a relatively small percentage of Haley’s time is spent actually fighting or advocating for her client’s position, the other time is so often spent preparing for the fight that it feels like the fight is the only thing sometimes.  But this week, we are going to look deeper into three common aspects of litigation from a different perspective.  We are going to explore the purpose behind them as well as their practical function.  

Court Rules

This is not an obvious one, but as we were thinking about it, the deeper meaning really resonated.  Court rules obviously and necessarily provide a structure to civil litigation from inception to final appeal.  We as humans crave structure and clear expectations.  This is one of the things that really has been difficult since 2020 is the uncertainty.  But in the court rules we find structure and we can lean on the safety of that structure.

Court rules offer so many things, they offer the ground rules and boundaries for all parties involved.  They provide the framework by which we as attorneys make decisions.  They also provide a framework for discussions with your client.  You can lean on the court rules and give you client scenarios - if this, then that.  

When you go into a courtroom, whether in person or virtually, there is an order to things.  There is an order to the way things are handled and, these rules and order are accessible and applicable to everyone. Amidst the uncertainty of the ultimate outcome of litigation, attorneys can find comfort in the expectation of certainty in the order of the court rules. There is comfort in these expectations.

Briefs

Briefs represent a format to simply be heard.  Whether you are pro se, or if you have an attorney representing you, a legal brief is an opportunity to be heard.  This actually can be found in many places other than briefs, depositions and of course trial.  People want their day in court. But, why is that? It is fairly basic - they want to be heard. 

Having the opportunity to be heard is powerful.  Even if the ultimate outcome is not exactly what the client (or their attorney) hopes it will be.  

It can be vindicating for the client to review the facts and legal argument with their attorney and have their attorney agree with them, what the other party did was wrong.  You were not treated fairly.  This should not have happened to you.  

Think about this outside the law, in your personal life.  You were treated unfairly and feel frustrated and call a friend.  Your friend gives you the opportunity to be heard and justifies how you feel.  Think of how much better you felt just having someone hear you and agree with you.  They may not be able to offer you a solution or justice, but they’ve given you the opportunity to be heard.  

This can be a very powerful tool if you allow it to be.  

Mediation

Mediation is a non-binding process where the parties negotiate through the help of a neutral third party.  Mediation gives the parties and their counsel the opportunity to maintain control over their future by negotiating a settlement that all parties agree on.  To come to an agreement, both parties have to give up something.  If you are engaged in mediation, you may not get everything you want, but you get to decide what you will and will not give up.  You get to remain in control.  Control is powerful.  

Oftentimes people end up in litigation because there was a loss of control. They were not treated fairly or justly. On the other side, defendants do not chose to enter into litigation - it was out of their control. Mediation is an opportunity to regain control as well as to be heard. 

As we said at the top, it is so easy to lose the forest for the trees when you are in the day to day grind of a professional life. Our intent is that this brief look from above might help you adjust your perspective when you land once again within the trees and take something with you to serve your practice.

We would love to hear what you think! Reach out on Instagram, LinkedIn, or via email.

Have a great day!

Haley & Amy

Photo by Sebastian Pichler on Unsplash

Please keep in mind that your jurisdiction will have rules of professional conduct that you must follow. This discussion does not focus on the any such rules, including the rules from the jurisdiction where we practice. Rather this is a discussion of tips we have found helpful in managing client expectations in our own experiences. This should not be taken as legal advice.

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