Lawsuits, Lessons Learned

I’m writing this to clarify my thinking about lawsuits, to identify the lessons I’ve learned, and for those who may be concerned/interested.

My first forays into the legal system were wretched. I didn’t understand the process, I didn’t know what to do, and I lost as much as I won. In desperation, I started to learn. After applying lessons learned—in superior district courts, federal courts, appellate courts, and state supreme court—we’ve won almost all lawsuits. 

In the approximate order of importance, what I have learned is:

1. Hire the right attorney: This is the most important. Lawyers range from brilliant and heroic to poor and incompetent (some corrupt). Most are good and hard-working. If you have the right attorney, almost everything is possible; if not, prepare for disappointment. Perform due diligence on lawyers you are considering hiring. Carefully select three to five credible options before you choose one with the appropriate expertise and with whom you have confidence and rapport.

2. Agree on the desired outcome: What is wanted? Money? A quick settlement? Vindication? A complete trial—win or lose? At the outset, the future picture needs to be clear for client and counsel. Otherwise, time and great expense will be spent thrashing around until one is exhausted and is pushed to settlement.

3. Help the judge: Judges range from dedicated, rational, conscientious, and honorable to incompetent, biased, corrupt, and evil. If you have a bad or political judge, it is almost impossible to succeed. Regardless, you must fight, whichever judge is assigned. The idea is to help the judge understand your case—be clear and convincing. Provide the facts, solid evidence, and the correct persuasive law.

4. Marshal the facts: The foundation and fuel of a lawsuit are facts. Support the facts with evidence—documents, videos, testimony, statistics, etc. To assist your attorney, create “fact packs” around each central aspect of the case. Inform your attorney clearly and compressively with a chronology. At the outset of the case, prepare all of the facts and evidence to be ready for discovery. Be prepared.

5. Help the attorney: Be their best client. Provide the facts (facts are our responsibility) in an organized, clear manner with documents and chronology. Promptly respond to requests. Follow advice (when possible 😊) and promptly pay bills.

6. Understand the multi-faceted aspects of a lawsuit:
   1. Facts: These are the ammunition. Ideally, create a central, important facts binder/e-file with documents. 
   2. Law: An attorney is a law-yer. That’s his training, his expertise, and his focus and practice. The law is his strength. However, even good lawyers can get caught-up in the complexity of law and focus on risks; many are risk-averse and poor business managers. Managers/clients need to manage. 
   3. Economics: Lawsuits can be very expensive. If you don’t have enough money, you will likely not be able to attain your goals, especially if you sue the government. Governments have masses of money and hordes of attorneys; there are over 100,000 attorneys in the Department of Justice. Opposing attorneys intentionally try to drive up costs and time in order to demotivate litigants. It’s just what happens. If the suit is mostly about money (versus moral principles), then a cost vs. potential return analysis is necessary.
   4. Psychology: The motivation and the emotional strengths/stamina of the parties are fundamental and crucial. As the case progresses, the emotional state and motivation of the participants are extremely important concerns. Part of the legal planning is developing and managing psychological strategies. It can amount to “psychological warfare.”
   5. Strategy: Focusing on tactics, slugging it out—a battle of attrition—is costly and is not a winning “strategy.” (Many lawyers focus tactically and this is a serious problem.) Spend the long and hard strategic planning time. Identify the centers of gravity—crucial facts; the crucial law; the right venue(s); the right judge (if it’s possible to locate one); the right posture and presentation of the case; and more, such as sequencing and scheduling.

7. Time: Any major lawsuit that proceeds to trial will likely take several years—three to five years. Expect some lawsuits with complex legal issues to drag on for 10 to 15 years.

8. Mitigate complexity and confusion: Lawsuits, by their nature, are complex and confusing; little is clear-cut and certain. Rarely is a case a sure winner. Given this, it’s necessary to identify what is probable and perhaps what is certain. Centers of gravity help here.

9. Prepare for uncertainty and unpredictability: At best, one can only estimate (and sometimes guess at) the course and outcome of a case. It goes well; it goes poorly. That is the way a lawsuit unfolds. Don’t over-estimate your own case, nor under-estimate one’s opponent. They will fight back, sometimes vigorously.

10. Accept that being sued sucks: Lawyers themselves hate to be sued. Doctors hate to be sued. Doctors practice to guard against, and live in fear of, lawsuits. Being sued is all cost and no reward. One is being attacked and constantly defending. It can be stressful. 

11. Suing another: Here, there is the possibility of a reward, recovering money, and obtaining justice. (Rarely is complete justice achieved through the legal system.) It is better to be on the offensive.

12. Prepare for spin and lies: You will likely hear shocking dishonesty from witnesses and even from some attorneys and judges. Frequently, witnesses are coached to spin and lie, and could win an Academy Award for acting. (For an Academy Award performance, watch Edward Norton in Primal Fear—it’s brilliant!) A lawsuit can be characterized as combat against irrationality, spin, and lies. Frequently, a lawsuit is not conducted based on principles, fairness, or a benign rational process. It is a matter of winning or losing (legal warfare). That’s unpleasant, but in many cases that’s what it becomes. It won’t be a fair fight.

13. Have the resources (crucial): To succeed in a lawsuit, one must have the resources. The resources are a sine qua non. The resources needed are: the right attorneys (legal team), compelling facts, all the money needed, the executive/management team (two or many more people), reliable witnesses/friends, and more. If you don’t have the resources, you shouldn’t do it. If you do, you may be successful if the right factors are in place. A lawsuit requires motivation, money, and management.

14. Manage costs: Lawsuits are very expensive. Without good management, costs can go out of control and soar. How does one manage costs?
    
    The best and fundamental way to manage costs is through a clear desired outcome and thoughtful strategic planning, identifying limits (e.g., of discovery, which is very expensive), defining a good motion practice to limit the scope of the case, and a budget. There are various fee arrangements such as a fixed fee, contingency, or some mixture. Managing costs is a difficult, involved, ongoing process.

When beginning a lawsuit, it will be good to review this list, pose questions to be answered, and discuss these issues with the legal team.

If you’re interested in related blogs:

• The Assault on Private Career Colleges
• Assault on College America and Change of Judge
• Judging Judges
• Bittersweet Legal Victory
• Students’ Tragedy
• Honor and Dishonor

I hope you found this post enlightening, and I’d be interested to hear your thoughts in the comment section or via email.

Carl B. Barney
January 20, 2022