Step 1: Trust Your Lawyer

You hired your lawyer for emotional as well as logical reasons. Both are equally important. Now your job is to trust him or her. If you do not, you may be hesitant to comply fully with what he or she asks you to do during your litigation, and this will damage your chances of prevailing. Lawsuits are operations that are as tricky and complicated as are many surgeries. We're assuming you wouldn't consider remaining conscious so that you could advise the surgeon during your abdominal surgery. So, when it comes to your lawsuit, once you've hired a professional, stand back and let him or her do their job.

*That is not to say sit down and shut up. Your clear and focused communications with your lawyer are vital, so you can save a great deal of money if your communications are as efficient as possible. That is one of the primary goals of this book.

What you will quickly see in this book is that we recommend you do quite a bit of work on your own. The work will be tremendously time consuming and require focus, but if you truly want to prevail, you will do the work this book recommends. This work will be in addition to all the work you will do with your lawyer and her legal team, and all the work they will do on your behalf (late into the night and at horribly early hours in the mornings). If you want to maximize your chances of prevailing, with input from your lawyer, you will do everything we're recommending here.*

Winning or Losing and Settlements

Most lawsuits these days don't come down to who won and who lost. Many civil actions are concluded with one side simply getting the better end of the deal than the other, but the results of other actions often leave both parties unhappy. Perhaps the most common result of alternative dispute resolutions such as mediations and arbitrations is that a well-mediated result leaves both parties unhappy, but not devastated.

A settlement is when the plaintiff and the defendant agree to end their dispute without going forward toward a verdict by a judge or jury in court, or a decision by one or more arbitrators. Most often, a settlement in a civil case involves the plaintiff and the defendant agreeing to some exchange of damages (money), with the plaintiff accepting less money than what he sued for, and the defendant agreeing to pay more than he wanted to. Settlements are normally reached before arbitrations or trials begin, but they can occur at any point during the litigation process.

*If you have done a great job completing all the tasks in this book, and if you’re incredibly organized and absolutely know your facts backwards and forwards, you’ll put your lawyer in a strong bargaining position regarding settlement talks because he knows you’ll be prepared to go to court if you don’t get what you want in settlement negotiations.

Settlements often create conflicting emotions. The plaintiff (claimant) and the defendant (respondent) will never know if they would’ve come out better in a trial. Should you and your counsel decide to settle your case, do so and forget it … unless you just enjoy torturing yourself at 3:00 am by imagining the trial-that-never-took-place in your head.

If your lawyer suggests talking to the other lawyer about settling your case, this does not mean that he or she no longer believes you can prevail. It’s simply practical and a matter of ethics. If your lawyer is suggesting or encouraging you to settle, he’s arguing against his own financial interests. If you try your case in court – unless he is working on contingency – you’ll be obligated to pay him a great deal of money. The last two weeks before a trial, and the days spent trying a case, are astronomically expensive. If your lawyer suggests settling … listen to her … get “un-mad” and get ready to be as reasonable as you possibly can.*

I tell every client, “Settling is winning, because you get your life back,” meaning, you no longer lose sleep at night worrying about your legal quagmire.

*Judges also push lawyers and clients toward settlements. I was once consulting on a case in which the lawyers and I were sitting in the courtroom about to select a jury. [Voir dire.] Before the potential jurors entered, the judge looked right at our client, the plaintiff, and practically yelled, "This is one of the most frivolous lawsuits I’ve ever seen. I have mediators outside. You need to settle this.” We settled.*

Should you and your lawyer chose not to settle your case and you end up losing a great deal of money in a trial, forget it. Forget it. Forget it, because you can't undo it. In life, we cannot make all the right decisions, but we can make all our decisions right by simply moving on when things don't work out the way we had hoped.

And this is really important to remember before any litigation: if you prevail, your lawyer doesn't deserve all the credit or praise. She quite possibly would not have won without your active participation. And if you don't prevail, your lawyer doesn't deserve all the blame and criticism. She quite possibly may have lost because of your active (or inactive) participation.

One final thought on prevailing or not: facts matter, dates matter, math matters and testimony matters. The accumulation of those things just makes some cases all but unwinnable. And sometimes people lose big when they should have won big. Justice is (of course) blind, but sometimes she is also deaf and dumb as well.