KENNETH P. NOLAN
The author, a senior editor of LITIGATION, is with Speiser, Krause, Nolan & Granito, Rye Brook, New York,
and is the author of A Streetwise Guide to Litigation (ABA 2013).
I once had a perfect case, or so I thought.
My client was honest, hard-working, a
good family guy. You might have heard
of the type—almost extinct these days.
Liability was obvious, with witnesses,
photographs, and a comprehensive police
report detailing admissions of negligence
by the despised defendant. My client’s
injuries were significant and verifiable,
with enough plates and screws to build
another Verrazano Bridge. So when the
insurer suggested mediation, I immedi-
ately agreed. That night, while all snug in
my bed, visions of dollar signs danced in
my head. Even my wife noticed: “What’s
wrong? Why are you so happy?”
After decades of litigating such mat-
ters, I could recite the script by heart—the
mediator will beg and scold; we’ll all roll
our eyes and emote like some washed-up
Hollywood hypocrite. We’ll storm out,
slam the door, come back, sigh a million
times, and reluctantly settle with hand-
shakes and pats on the back all around.
My lone fear was that we’d have to return
a second time to squeeze a few more nickels from the insurer. It was all planned.
I know that negotiation is theater, all
lawyers merely players, each with a part
and lines. So when the mediator disclosed
the initial offer, I sat stunned, dumbfounded. The defendant, it appeared, had
a different script with a different ending.
My dream of savoring Pigeon de Bresse at
Le Bristol in the Eighth Arrondissement
vanished. Now I won’t be able to afford
a french fry, never mind a three-star
I asked the mediator, a good friend,
what was I missing. Nothing, she assured
me. They just value it much lower. There
was debate about venue, comparative
fault, and excellent recovery from surgery,
but nothing surprising. I wiped my eyes
and stormed back to our office to prepare
for trial, a few months away.
They’re just playing games, I believed.
Once trial looms, they’ll meet my number
and cave. The call came; a higher amount
was mentioned but not what I expected.
We selected a jury. Court officers, clerks,
even judges—who knew my clients—re-
peatedly warned of the parsimonious na-
ture of the noble citizens of Staten Island.
We opened, the judge knocked heads to-
gether, and we settled. Hard work it was.
And I never made it to Paris.
Trial work is infantry, tramping
through the mud, wet and cold, battling
for every inch. What I thought would be a
stroll in the Tuileries Garden turned into
a slog up the hill during a snowmageddon.
But everyone who has practiced knows
that litigation is a constant migraine.
There’s disputed facts, uncertain law. You
can’t ignore the mercurial judge and unpredictable jurors. And clients often wonderful and mostly wrong. It’s a ride on the
Cyclone with twists and dips, horrifying
screams, and a sudden stop at the end.
I knew all this, of course. But just once,
just one time, couldn’t I have an easy one?
Where the defendant agreed with my assessment and quickly mailed the check?
I’m not asking for world peace or anything—just a single case without the angst,
the anguish. Is that too much to ask?
I always knew there was no free lunch.
No one, I was taught, was magnanimous
without a nefarious motive. This perverse
upbringing was ideal for a trial lawyer,
but it made ordinary life somewhat challenging. So how do those who didn’t have
the benefit of being raised on the distorted, paranoid sidewalks of Brooklyn survive as litigators? When every moment is
combat, how do you maintain perspective
and the ability to laugh?
Ask questions. You can’t leap buildings in a single bound. Too many young
lawyers believe that if they admit uncertainty, or mention that the deadline can’t
be met because of seven other assignments, it’s weakness. I always thought I
was dumb, so I always requested clarification, and more than once. Don’t be afraid
to knock on the partner’s door and confess that you have no idea what he wants.
LEARN TO SAY NO