Whether your preferred end-of-summer pop-culture reference is Danny Zuko and Sandy Olsson pining for each other at opposite ends of Rydell High, Frances “Baby” Houseman being hoisted into the air, or the sound of the “60 Minutes” clock signaling that it’s Sunday night, and, in a few hours, it will be time for school, it’s always the same story: Summer has to end.
When COVID-19 hit, our profession adapted. It is incredible how quickly we became accustomed to the changes—no work-related travel, no in-person depositions; trials indefinitely in limbo. All of these things were instantly replaced with Zoom mediations and virtual court hearings. Overnight, we were thrown into a new way of doing things without warning or preparation. Yet we have come out ahead, responding to the recent cost-savings trends with enthusiasm and developing command over new mediums and procedures.
Despite all of the tragedy surrounding the pandemic, it has given lawyers and insurers alike a once-in-a-lifetime opportunity to question the standard practices of litigation. Will we turn back into pumpkins when the clock strikes midnight, or will we, as a legal community, actually apply some of the cost savings and risk management techniques that we were forced to put in place over the past 18 months and counting? How will we advise clients on trial strategy? Will we finally be honest that the defense model of billing clients by the hour doesn’t necessarily correlate with either great or necessary legal work?
In other words, what happens when our summer ends?
History Repeats Itself (Until it Doesn’t)
A recurring theme in defense litigation practice is making judgments based on past experiences. As attorneys, we advise our clients on the potential outcome, settlement range, or verdict potential based primarily on what happened before. But shouldn’t we be adding the standard investor disclaimer: “Past results do not guarantee future outcomes”? How does this apply in the post-pandemic world?
The lesson is simple: Be wary of past anecdotal evidence or experience. While what we’ve learned in the years or decades of legal practice is essential and valuable, it should not be treated as sacred gospel. And if we’re honest with ourselves and our clients, how often are we wrong? How often have we forced an issue with opposing counsel, then tried to bully our way out of it through the standard scorched earth defense tactics, only to be brushed back by a terse judge, a frustrated client, or an inflated settlement or verdict?
We are not suggesting an abandonment of what brought us to this profession in the first place—the ambition, the drive; the competitive spirit. We want our clients to win. We want to win. Those principles should remain constant. What we should examine more closely, however, is what is the best way to win, and, perhaps more importantly, what does it mean to win?
Re-examining the way in which we do things doesn’t necessarily lead to the conclusion that we need to do things differently. Sometimes a second look emboldens our original thoughts or practices, and sometimes it leads you to think a bit more creatively and take a different approach. But it is always essential to stop, think, and ask: Is the work I’m doing benefiting the case? Lawyers can sometimes do things because it’s the way they have always done something, or, worse, “the way everyone does it.” Remind yourself to always ask the following: Is this the best approach? Is this the most intelligent move? Could I do this differently? Am I working effectively and efficiently?
Sending a Message
In 1947, a young Foreign Service officer sat down to write out his frustrations with the U.S. government’s response to Soviet expansion across Eastern Europe. Despite his relative youth (he was in his early 40s), he felt compelled to air his grievances to the public in the hopes of turning the tide on U.S. foreign policy. He signed the article “X” because his employment with the government required anonymity, and he was not espousing official U.S. policy. This magazine piece became known as the “X Article,” and it changed the course of history.
George Kennan argued that the U.S. needed to engage the Soviets in something called “containment.” In other words, the focus should not be the obliteration of the Soviet Union; rather, the focus should instead be on containing Soviet expansion to its sphere of influence in Russia and Eastern Europe. In some form or fashion, over the next five decades, “containment” became U.S. policy. Right or wrong, the “X Article” and George Kennan changed the way people thought about the Soviets, and it directly impacted what kind of message the U.S. would send to its friends and foes abroad in the decades that followed.
So what does a 74-year-old article about a country that no longer exists (sort of) have to do with how we practice law and defend clients? When you set out to send a message, there are consequences. Kennan wanted to send a message to his superiors in the State Department and the upper echelons of power in the country, and it worked. The message was received. But there were consequences to that message. Without weighing in on whether or not the policy of containment against the Soviet Union was advisable, his message was received, and policy choices were made.
Now let us examine our own professional lives through this lens. You are sitting with a client; you’re offering an analysis of a case, maybe one that you know should settle. But the client or the insurer yells back—or perhaps “enthusiastically explains”—that this case has no value and that as a group we need to send a message.
But send a message to whom, exactly? Is there a secret weekly meeting of prospective plaintiffs and plaintiffs’ attorneys in some secret, undisclosed location where they are discussing settlements and saying, “Oh man, we better not sue, these guys mean business”?
No, this does not happen. Maybe there are few select industries where word-of-mouth settlement information or outcomes cause a litigation fever—akin to the mad dash of frustrated Bedford Falls residents demanding their money from a young George Bailey in “It’s a Wonderful Life.” But does it happen? And if it does, how often? Moreover, should we be basing our legal defense strategy on the premise that we need to send a message?
We have to resist the urge to engage in message sending. In any given case, our goal is to represent our clients’ best interests in that specific case. Yes, there may be some instances where we must consider policy and long-range planning. We must also be mindful that the purpose of the insurer is to mitigate risk exposure. But when we get into ego battles about sending messages to the other side, we lose sight of the immediate objectives.
A War That Never Comes
A bit more Cold War history: If you’ve ever traveled to parts of Eastern or Southern Europe, you may have noticed, dotted across the landscapes, abandoned pillboxes, bunkers, and military fortifications all in that recognizable Soviet brutalist style. These 20th-century relics are the remnants of a war that never came. Anticipating a major ground war with the West in Europe, the Soviets and their satellite states spent decades building these fortifications across the continent—all in anticipation of the next great conflict. But it never happened. Instead, the Berlin Wall eventually came down, the Evil Empire broke up, and the world moved on. So, once again, what does this have to do with our daily litigation lives?
Without launching into a dissertation about the root causes of the collapse of the Soviet Union, the point is simple: How much of our time over the years has been spent preparing for a “war” that never came? Of course, we all know the overwhelming number of cases never make it to trial. Yet how many times do you hear lawyers (these authors included) puffing their chests and telling trial war stories? Or how many times have our clients, in exasperation of an intransigent plaintiff, said into the phone, “Fine! Tell them we’ll see them at trial.” This messianic complex can be overwhelming.
To steal a line from that obscure 1990s weight-loss guru Susan Powter, it’s time to “stop the insanity.” How much of our practice consists of driving up those litigation costs and grinding out those billable hours preparing for a trial we know is either never going to happen or makes little-to-no economic sense for our clients? Can we stop ourselves? Can we talk with our clients and stop pontificating about the allure of trials?
Sometimes going to trial makes sense. If the opposing party is unreasonable or has insane expectations, a trial is often the only recourse. Likewise, the eve of trial is often the only time the parties can be honest with themselves about what is at stake. But that is, in and of itself, a very big problem. So why does it take a trial for the parties to take a breath and look at themselves, their clients, and the other side and ask, “What the hell are we doing?” Is that the best way to engage in strategic risk management?
We’re not admonishing trial as a fundamental right of our judicial system. What we’re saying is, in the business of defending clients and insurers, as a general rule, in our experience, a trial is seldom the answer. Too often, it winds up being a battle of egos with neither side gaining much of anything.
Regardless of whatever fits and spurts might be left in the pandemic (and there seem to be plenty), there is no dispute that the summer is over. So it’s a good time to ask, “What did we learn? What can we do differently? Is it time to rethink the basic ‘grind the hours’ model? Is a trial really in the best interests of the clients and the insurers?” The “60 Minutes” clock is ticking on our antiquated approach. We’ve had a long summer to think these issues through and ask ourselves some honest questions. Finally, it is time to confront the future and meet the challenges of what comes next.
Most of us do not come up with a perfect scorecard. Identifying the room for improvement can be challenging, but the opportunities for growth and positive change in this profession are endless. There is no one-size-fits-all response to any of the issues we’ve raised. Instead, this is an invitation to rethink how we do things, do better, be better, and provide better service to our clients. It is time to do things better. The only question remaining is “What are we going to do?”