Populus Law LLC

By Nick Boebel

Litigating Fearlessly

Two roads diverged in a yellow wood. Choose.

Two roads diverged in a yellow wood. Choose.

          Lawyers are riddled with fear. It’s true, it’s sad, and it’s bad, mostly. There are exceptions. If you’re a Fortune 500 company in “bet-the-company” litigation, you should have some fearful lawyers on your legal team. Lawyers that worry over every trivial detail (and bill you for it!). Read every case on every potential issue, and argue about every real or perceived advantage.

          But such litigation is rare, like, really rare. And in the vast majority of cases that businesses face, fear-inspired tactics do more harm than good. To paraphrase the Bible: what good does it do your company to win 2 million dollars while paying your attorneys 3 million? Not much.

          Fearless litigation is focused litigation. Litigation where triage of issues from critical to peripheral to irrelevant is paramount. In fearless litigation, the lawyers and the client have the courage to focus on the positions with the best chance of winning.

          For clients who want to be careful with their money while maximizing their chance of prevailing, here are the 6 hallmarks of fearless, as opposed to fearful, litigation:

          Know your upside and downside: Very few cases are bet the company. But before you can make a rational decision about settling, fighting, or even surrendering, you need to have a reasonable sense of the upside, the downside, and the range and likelihood of the “in-between.”

          Know your story: I don’t mean ticking through every fact or defense that could come up. Any lawyer can come up with dozens of reasons you should win your case—and dozens of them will be unsuccessful. Instead, get 2 or 3 core positions onto one page (single whiteboard, simple flowchart, etc.).  If those positions are compelling and you can understand why there’s factual and legal support, it’s a good sign.  If you can understand it and it’s presented well, there’s a good chance that the judge and jury will too.

          Know what you need to prove your story (relatively) early: Identify both your witness and documents and the information that you’ll have to get from the other side. Focus on what’s necessary. By the time trial rolls around you'll be down to a handful of core trial exhibits and 10-20 hours of testimony anyway. The earlier you know what you need, the better your chances and more cost-effective your litigation.

          Know the discovery you need from the other side (and back-up): Discovery can feel like punishment. And plenty of lawyers use it as an excuse to run up bills seeking every bit of paper and e-discovery that could possibly be relevant. But focused discovery is the essence of fearless litigation. You don’t want everything; you only want what you need.

          Know who you need to depose (hint: not everyone): Some of my most enjoyable and effective cross examinations at trial have been of witnesses that I never met before they showed up in court. I may not have known exactly what the witness would say at trial, but without a deposition, the witness (and the other side’s lawyers prepping the witness) didn’t know what I was going to ask. The lack of information cuts both ways. If a witness might not be available, if you need testimony to win (or survive) summary judgment, if you need some specific concession, or if you need to understand the other side's trial story, depos are important, even critical. But not every potential witness (also true of expert witnesses by the way) needs to be deposed. In fact, it’s often better if they aren’t. 

          Know what to drop: This requires the exercise of good judgment and the courage to let go of positions that just didn’t pan out. If a defense will undermine your credibility on another really good defense, then don’t present the bad defense to the jury. Don’t undermine your story just because you think, kinda, sorta, maybe, that the jury will latch onto it. Jurors know when you’re blowing smoke. Judges too.

          Litigating fearlessly requires judgment and courage. The courage to focus on what's essential, to let go of what isn’t needed, and the judgment to know the difference. A focused and fearless strategy from presuit investigation, through discovery, and into trial can generate outsized rewards for those willing to run with it.