February 14, 2014
“Accept only cases you would be willing to take to trial.” Ken Shigley, past president of the Georgia Bar, included this in his 10 Resolutions for Trial Lawyers in 2014. There are millions of ways that lawyers convince themselves to accept a questionable case:
- “The case might lead to larger, stronger cases in the future.”
- “I’ll settle it if it seems weaker when I learn more of the details.”
- “The client seems to have an ability to pay.”
- “I don’t normally take these types of cases, but any generalist could handle it.”
- “I’ll withdraw if the client relationship deteriorates.”
Every client with a meritorious case deserves a lawyer committed to zealous advocacy. To the lawyer, the case represents an investment of time, reputation and firm resources. The larger the case, the greater the professional investment. Unfortunately, in a competitive marketplace, lawyers frequently feel pressure to accept cases that aren’t a good fit for them. However, it might be easier to agree to take a weak case than to favorably withdraw or settle it later.
In many ways, Shigley’s #1 Resolution applies to clients as well. A client may go to a lawyer with a problem. The lawyer may respond with questions, insights and a litigation proposal not anticipated by the client. Moving forward with a real estate lawsuit is usually a major decision, requiring substantial investment of time and resources that tends to escalate over the months or years prior to resolution. An expert faces the same challenges.
How does a client, lawyer or expert know whether she is willing to commit to take a case through trial (and beyond, if necessary)? This is particularly important in real estate cases where the remedy may involve more than an award of damages to one side or the other. Present and future property interests may be at stake.
In the movie theater, lawyers like fixer “Michael Clayton” or divorce attorney Miles Massey from “Intolerable Cruelty” have glib answers. George Clooney, the actor portraying both of these fictional attorneys, recently gave an interview with the Washington Post to promote his latest film, “The Monuments Men.” Ann Hornaday, February 6, 2014, “George Clooney Uses His Star Power to Keep Part of Old Hollywood Alive.” Although Ms. Hornaday seems too glowing at times in praise of Clooney, I agree with her basic assessment:
“There might not be another actor alive who so thoroughly personifies movie stardom, or deploys it so adroitly — as commodity, means of production and public trust.”
In the interview, Clooney describes how he learned the hard way which movie roles to accept or decline.
1. Choose the “Screenplay,” Not Just a Role:
In 1997, Clooney starred in “Batman & Robin,” an admittedly disastrous installment in an otherwise successful franchise: “Until [Batman & Robin], I had just been an actor . . . I had only been an actor in a TV series, and then I got ‘E.R.'” E.R. made Clooney a household name. Batman set his reputation back:
“And after I got killed for ‘Batman & Robin,’ I realized I’m not going to be held responsible just for the part anymore, I’m going to be held responsible for the movie. And literally, I just stopped. And I said, It now has to be only screenplay. Because you cannot make a good film from a bad screenplay.”
Prior to Batman, he simply looked at the part offered to him in a film. Batman taught him how being a leader or a star requires a larger commitment.
A lawyer must present his client’s case compellingly for the jury at trial. Preparing for trial requires roles: client representative, witnesses, testifying experts, jury consultants, first-chair litigator, second-chair litigator, legal assistant, general counsel, insurance counsel, and so on. The litigation equivalent to a screenplay is the outline containing all of the arguments, statements and examination questions. Unlike movies and T.V., a lawyer cannot script the behavior of any actor in the drama other than himself. Neither the lawyer or the client have a complete trial outline to go over in the initial client interview. At that point, the lawyer may receive some anticipated witness testimony and exhibit documents, but probably not all of the facts and issues. The initial case evaluation is extremely important. There is no better way to make a preliminary evaluation than in an opening memorandum.
The challenges of initial case evaluation illustrate the value of a specialized litigator to the client. Preparing a detailed proposal or opening memorandum is a feasible time investment to a professional in a niche. Reducing the initial case evaluation to a written summary allows the lawyer and client to visualize the proposed role within the larger “screenplay” and the likelihood of a win-win. BIind acceptance of larger roles in big budget matters may lead to a “Batman & Robin” result.
2. Leading a Team Through the Darkness:
Law schools do not focus on leadership and management in the core curriculum. Law firms typically structure around collegial authority, originations and billable hours. How can lawyers become great leaders and team-builders?
In addition to choosing films based on the screenplay, Clooney forged relationships with great directors such as the Coen brothers and Steven Soderbergh. In 2006, Clooney and his partners formed Smokehouse Pictures for the purpose of making movies missing from Hollywood’s contemporary repertoire. “We want it to be low-budget, dark, screwy…..We like that world a lot.” These personnel decisions may not be based on the easiest way to fill roles. Nor are they dependent upon celebrity and institutional relationships. Creative partnerships and budgets lay the groundwork for success.
3. The Lawyer’s Niche and Initial Assessment:
What can be learned from Ken Shipley and George Clooney’s resolutions? Neither of them say, “Only accept roles that guarantee or promise success.” The decision to accept or decline a role hinges on commitment to the project and others, especially the client. A litigator niched in a particular jurisdiction and practice area is best positioned to make this commitment. He is more prepared to develop a preliminary “screenplay” and draw from a network of other professionals.