Victory at All Costs (until we’ve bankrupted you, at least)

What is best in life? I suppose it depends on who you’re asking…

• • Ask a client embroiled in litigation, and the answer might be: “to win this lawsuit as quickly and efficiently (cheaply) as possible.”

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• • Ask that client’s attorney, and the answer might be: “to meritoriously present the facts of my client’s case and ensure that I am not only fulfilling my ethical obligations but also setting an example for future generations of legal practitioners” (“might” being the operative word here).

• Ask Conan the Barbarian, famed philosopher/peacenik, and the answer will surely be:

To crush your enemies, see them driven before you, and to hear the lamentation of their women.

We’re all friends here, so I’ll let you in on a little secret… if fur loincloths and giant swords were allowed in the courtroom (stupid federal marshals and their stupid rules about wearing a shirt and tie), most litigators would probably welcome the opportunity. This is because litigators, by nature, are a-holes ‘argumentative’ (ask my wife). Call it training or a mental defect, but the truth is we generally like to argue and win everything, regardless of the ultimate importance of the issue (for the record, the way I hang the toilet paper in the bathroom is far superior to the way my wife does it).

Clients like to win and lawyers like to argue – not exactly front page news, but the revelation should at least cause you to pause for a moment (no, not to imagine  your lawyer wearing a loincloth). I don’t know you, but I’ll go out on a limb and guess that you don’t have unlimited funds to throw at litigation. I’m also going to guess that your preference would be for those limited funds to be used in a way that actually benefits your case as opposed to merely padding the ego of your lawyer. But can your selfish desire to not pay for my kids’ college and my noble desire to argue about everything coexist? I’ll never tell… well, ok, just this once.

You’ve probably heard the expression: “You may have won the battle, but you’ve lost the war.” Many attribute the expression to Sun Tzu’s The Art of War, but I’m fairly certain it’s actually from a song on Lady Gaga’s new album. Either way, the point remains the same. With a limited pot of money, there are only so many litigation ‘battles’ that you can win before you’re forced to throw in the towel and call it quits. If your lawyer is caught up in meaningless arguments/fights with opposing counsel rather than focused on how those fights ultimately affect the endgame (whether you win, lose, or draw settle), you may find that you’ve lost the war solely by attrition (as opposed to on the merits).

Now that we know lawyers want to drain both your bank account and your blood may not be viewing your case through the same lens as you, how can we turn this knowledge into something tangible? Simple. Let me introduce you to the most powerful word in your arsenal that you probably haven’t been using with your lawyer: “Why?”

Why are we filing that motion? Why are we making those objections to the discovery requests? Why don’t you cast a reflection in the mirror (you probably don’t want an answer to that last one)?

A slight variation of the above would be “How does doing __________ help me achieve __________ (whatever your goal is)?” Listen to the answer. Does it sound like your interests are being served or does it sound like your lawyer just wants to beat the other side for the sake of winning an argument? If the latter, is that something you want to spend valuable and scarce funds on?

If you’re not particularly savvy with the legal process, this may seem like a daunting task. After all, how do you know whether any particular motion/document serves a purpose in your case? Not to fear… DeSouza is here. I’ve compiled a list of the 35 motions that never serve any benefit and are always a waste of your money… if only it were that simple. A useless motion in one case may be critical in another, so it’s difficult (if not impossible) to provide any sort of list for you.

The best example I can give would be a motion to dismiss that, if granted, would result in dismissal of the other side’s case “without prejudice” (meaning they can fix the errors and re-file within a set number of days). If those errors/defects are easily fixed, were the thousands of dollars you spent on the motion truly worth it to you? Let’s say the other party forgot to attach a copy of the contract to his Complaint (a rather silly requirement in Florida state courts) or failed to name the specific person that made a fraudulent statement (even though you know who he is referring to). Your lawyer files a motion to dismiss, you spend $10,000 on the motion, and you WIN! Ten days later, the other side files an amended complaint and you’re right back at square one (minus the money you could have spent elsewhere).

Remember – we can argue with the other side until we draw our last breath or until you declare bankruptcy, whichever comes first. Given the eternal life granted to us by the Dark Master, you’re in all likelihood better off trying to understand why it is we’re doing what we’re doing and taking a hands-on approach in litigation strategy. You’re ultimately the one paying the bill, and you should be comfortable in knowing that what you’re paying for is not purely to further inflate our egos (they’re big enough already).