We state the obvious to say the Advocate’s job is to contest every issue for the benefit of their clients. It is not obvious to employ initiative and creativity. Creative effort can provide added value from the startup to the payoff.
In the initial stages of any litigation, the parties are often unsure about the actual risks they face. Emotions exceed information. Discovery is usually incomplete. Trial dates are far off. With court ‘consolidation,’ the timeline of the litigation is unsettled. Many times one case can look like any other with similar questions of law, or similar facts. Early on, when the tone of the case is established, themes are developed, the case benefits from the advocate’s creativity. It is at this stage, where innovation and initiative pay their greatest dividends.
Leadership is important for the advocate in any type of litigation, but it is especially important early in process. It is crucial to a successful early mediation.
Recently, I conducted an ‘early mediation’ at the start of the dispute. Neither had filed responsive pleading. neither counsel discussed parameters for settling their dispute – until we set their hearing dates. Each party described a plain vanilla description of the dispute. Each party was encouraged to provide their perspective of the value of the dispute; not only the value they believed was involved, but also the value they hoped to achieve at the mediation. Briefs were to be confidential. By phone, each party exaggerated the basic value they faced and understated their risks. Each party overstated their anticipated results. Of course they would, since discovery was just beginning, party depositions had begun, but not finished. Law and motion had not yet commenced.
In response to the request for confidential briefs, one side went beyond the ordinary. One attorney drafted briefs that were very creative—and helpful. They submitted two briefs, their own and an ‘imaginary brief’ in which that they presented the data and arguments they anticipated would be provided by their opponent. The latter brief was very well thought out with an economic analysis that was close to reality. So close in fact, that the briefs submitted by both parties read like they were the same brief.
In the opening session, the attorney presented a synopsis of both positions. Personal animosity of the parties was defused. Settlement Values were exchanged before separate caucuses convened. The separate discussions began at an advanced stage and addressed the dispute in terms of value, risk and personal involvement. The mediation resolved favorably for both sides.
In many ways, the success of the mediation does not depend as much on the facts and circumstances of the dispute itself as it does on the litigation’s leadership. Often an exceptional effort by one party, or their lawyer, can guide the dispute to a favorable early conclusion.