Here Blawgletter sits on a Super 80 jetliner.  The flight crew will soon — if the FAA doesn’t order a new inspection of the wire harnesses in the landing gear well — close the door and order us passengers to switch off of all electronic devices, including our laptop. 

But before that happens we wanted to share our part in an ABA teleconference CLE earlier today.  The program, Current Developments in Business Litigation, featured five panelists.  The panel members answered questions concerning topics we wrote about in a Section of Litigation and Thomson West treatise, Business and Commercial Litigation in Federal Court.

What follows approximates the questions to Blawgletter and our answers.  A more accurate transcript will go up on the ABA website in a day or so.

How does streamlining and expediting a case help lawyers and their clients?

Lots of ways, but primarily by focusing us as lawyers on the things we’re experts at.

Let me illustrate what I mean.

Imagine that instead of a litigator you’re a heart surgeon. What kind of incisions do you make?  Precise ones in exactly the right spot. Do you hurry?  No.  Do you stall for time?  You do not.  What do you care about?  The patient and improving — possibly saving — her life.

Now imagine you’re the patient.  Maybe you have a mild condition that just barely warrants cracking your chest open. Maybe you need an octuple bypass. In either case, do you want to complicate and delay your operation and recovery time?  Or do you prefer to streamline and expedite those things?

Trial lawyers are no less experts than heart surgeons.  Our expertise is in solving intractable problems through the civil justice system rather than the healthcare system, in courtrooms instead of operating rooms.

Streamlining and expediting the process means focusing on the important stuff.  The key testimony and the key documents.  That provides greater value and – not incidentally – makes lawyers more successful. Clients suffer less pain, pay only for work that aims to advance the ball, and get to a fair outcome sooner.

Why do some lawyers and clients oppose streamlining litigation?

For the same reason that the Speedy Trial Act is seldom invoked in criminal cases.

People oppose streamlining because they don’t believe a swift, fair outcome favors them.

Suppose you have a weak claim or an iffy defense.  Or the client wants to use litigation as a weapon against a competitor. Or the lawyer thinks that a reputation for earth-scorching will earn him more business. An expeditious and just result probably doesn’t favor you or further your collateral goals.

What to do?  If you have the resources, a war of attrition may look like your best option.  So you slow roll the process. You concentrate on inflicting pain and expense on your opponent.  You try to wear the other side down and force it to make mistakes. You hope for a slow and unfair result.

Which technique, more than all the others, best helps streamlining and expediting litigation?

It’s simple:  Getting along with opposing counsel.

I don’t mean you need to become friends and go to antique shows together. I don’t mean you should reveal your strategy or fight any less hard for your client.

But I do mean you make a big mistake if you provoke and antagonize opposing counsel.  A deposition that should last two hours takes seven.  Scheduling a hearing becomes a two-week project.  You communicate only by letter, if at all. Every dispute turns into a battle of wills.

How do you avoid that?  First of all, you communicate personally. Not by letter, not only by email. You also cooperate and accommodate. You don’t show anger. You don’t threaten or attack opposing counsel personally.  You always tell the truth – and that sometimes means admitting mistakes.

Trying to get along always works even when it doesn’t — by which I mean even if opposing counsel doesn’t reciprocate. Staying calm and reasonable drives them nuts. Plus it builds your credibility with the judge.

Does streamlining and expediting produce better and more just results — or only quicker and less expensive ones?

Yes. They do both.

Since I started practicing in 1985, we’ve moved away from the messiness of getting cases ready for trial and trying them and towards demanding perfection, as if we could attain it.

That famous French trial lawyer Voltaire said “the perfect is the enemy of the good.”  He was right.  We ought not insist on an unattainable goal when “good” and even “excellent” are within our grasp.

We are heart surgeons, not line workers in a rendering plant.

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