Step seven in how to win a lawsuit: Demands for documents

Every United States court permits full discovery, including complete production of all documents that have any potential bearing on the issues before the court. This means that both parties can be required to turn over all documentary evidence (including digital records and e-mails) regardless of whether the evidence supports or harms the other side’s case. The trick is that you have to ask for it in the right way. If you don’t use exactly the right words to describe what you want, you won’t get what you need. The responding lawyer will justify a decision not to produce a record on the basis that it was not properly identified and therefore not properly requested. The converse problem is asking for more than you really need. In this age of digital records and e-mails, a simple request could generate tens of thousands of pages of records and totally inundate you and your lawyer. Lawyers sometimes gladly produce such large volumes of records just to harass the other side or to bury an important document hoping that it might not get found if it is tucked in the middle of thousands of other documents.

Step three in how to win a lawsuit: Define what you mean by "win"

This is not a silly question. If you have nothing more than a very vague idea about what you should expect to happen with your case, you have no way to know whether you’ve won or lost, no way to make an intelligent decision about whether to settle and for how much, and no way to know whether it’s worth the gamble of taking your case to a trial in front of a jury. What is your case worth? What is the best way to bring the case to a satisfactory resolution as quickly as possible and with as few legal expenses as possible? It’s your case, not your lawyer’s case, and you need to take control of it, participate in all the important decisions about the case, participate in all decisions about the costs that will be incurred in presenting your case, and participate in all discussions about the strategy and tactics that will be used and why. The last thing to do is to trust that your lawyer will just take care of everything for you.

If you want to see what happens when clients leave everything to their lawyers and do not participate in decisions affecting their cases, try reading my novel, The Litigators, available through my publisher, Scarletta Press, or Amazon (both in paperback and digital copies). Suffice it to say that lawyers have a very different definition of what it means to win a case than clients do. If you ask a lawyer to define a “win” you are likely to hear about some grand courtroom victory. If you ask clients to define what they consider to be a “win” you will almost never hear anything about a courtroom. Lawyers are trained in the art of courtroom battles, all the rules, procedures, tactical maneuvering, and precedents they need to win their cases in court. Lawyers astonishingly have virtually no training in law school about the art of resolving disputes amicably and fairly.

Step two in how to win a lawsuit: Finding the best lawyer

Here are a few examples of what not to do when looking for the best lawyer for your case:

• Advertisements. In my last blog I advised you where not to go to find the best lawyer – advertisements. See that blog for my reasoning.
• Do not even think about hiring any attorney who contacts you. There are many unscrupulous attorneys who follow police blotters and newspaper articles and make blind calls to those victims offering to represent them. This is unethical in most states, and these people are almost always terrible lawyers.
• Internet searches. This is a very poor tool for finding a good lawyer. I tried looking for a good lawyer in Minneapolis where I have practiced law for 42 years and was unable to develop any search terms or phrases that led me to a list of top-flight attorneys in any given specialty. It appears that most of the lawyers listed have bought their way onto various lists either by paying money to do so or by using tag words in their firm’s literature that causes Google to put their names in the top ten. Occasionally I was able to find a list that did contain a few attorneys who are well respected as top-flight lawyers in their respective specialties, but even then the list did not include many names of people who were at least as good or even better. And those lists also included names of attorneys who are mediocre at best. This tool is clearly not reliable in getting you to the websites of the very best attorneys.
• Lawyers’ organizations – NBTA, ATLA ACTL, DRI, and various state and national bar associations. These are potentially good resources because these groups do have lists of excellent lawyers. Unfortunately, most of these sites do not provide directories of lawyers who are members, so these lists are not accessible to people looking for a lawyer.

Now, let’s talk about what you should do. Keep in mind that the best lawyers get their clients from referrals from two primary sources – happy clients and other lawyers. So that’s where you should start your search.

What does it mean to "win" a lawsuit?

Do lawyers really understand their clients’ needs or do they just push cases through the court system as if a lawsuit was like an athletic contest, with the sole objective to win at any cost? Law schools have historically trained lawyers on how to “win” lawsuits. By “win” they mean triumph in court, as though victory is defined by the team that scores the most points. But athletic contests cannot be resolved by any means short of an all-out battle to the bitter end. That is their purpose, but it is not the purpose of a lawsuit.

It’s really interesting to ask both lawyers and their clients what their definition of a “win” is. I have done this many times, and whenever I pose the question to a lawyer, the response almost always focuses on some grand victory in a courtroom. When I ask my clients this question, the words “victory” and “courtroom” are never mentioned. Most clients talk about a “fair resolution” or “just compensation.” And they almost always talk about what it will cost them to achieve this result. Whether their cost is the lawyer’s one-third of the total recovery or the hourly fees charged by their attorney matters not; they all believe that justice that is expensive is not justice at all.

My novel, The Litigators, focuses on this challenging issue – does the high cost of justice in the American legal system today erode the quality of justice we have a right to expect? Does the winner-take-all approach to litigation produce a just result? When you have finished reading this book, ask yourself this question: who “won” the case? You may be surprised at your own answer.

Join me next week for Do lawyers’ fee agreements motivate them to ignore their clients’ best interests?