How to Get Fired as a Lawyer
By Jim Bleeke

Jim Bleeke is a shareholder with the Indianapolis-based firm Bleeke Dillon Crandall. His practice focuses on the defense of liability claims against physicians, hospitals, nurses, and other nursing and long-term care providers. Jim also spent ten years as in-house counsel at a major medical malpractice insurance company. Jim is an active member of the DRI Medical Liability Committee. His partners Carol Dillon and Richard Moore also assisted with this article. The following article was published in the Spring 2016 edition of In-House Defense Quarterly.

Many lawyers spend vast amounts of time, effort and money trying to cultivate new client relationships and build their practices. We look for opportunities to meet new prospects and get referrals for new business through involvement in professional organizations, hiring consultants, networking and other similar efforts to bring new clients and new work in the door. However, lawyers often do not spend enough time or attention on a much more effective and immediate form of business development: Keeping and expanding our relationships with the clients and the work we already have.

I spent ten years as in-house counsel for a medical malpractice insurance company. I then spent the last fifteen years building my own medical defense practice, often assuming responsibility for groups of cases that have been transferred to our firm from other lawyers who, for one reason or another, were not meeting client expectations. Between my in-house experience as "the client," hiring and firing outside counsel, and taking a look at cases that have been transferred to our firm from other lawyers, I have concluded that there are some fairly consistent practices that tend to get lawyers fired. Below are a few pointers that might be worth considering.

Act Like You Don't Want to Be Bothered by Your Client

Our desks, e-mail in-boxes and voice-mailboxes are full and constantly re-filling. Court deadlines loom. We must be organized and monitor our time closely so that we can get done everything we need to get done. When a client calls with an unexpected (and, from our perspective, not particularly important) question or concern, some lawyers consider it a "bother," and they would rather not be "bothered" by their clients. I have found that if you truly do not want to be bothered by your clients, eventually you will get your wish.

Clients can very quickly sense those lawyers who seem to be bothered by client requirements for early and honest evaluations of risk, timely reporting of key developments and prompt responses to telephone and email inquiries. Frankly, there is simply no good excuse for not calling a client back. It is common courtesy. Many lawyers act like the practice of law is really great, if they could just avoid "the hassle of dealing with clients." Eventually, those lawyers will find that clients will stop calling them.

Many lawyers simply do not realize that their client contacts are evaluated internally by whether the cases that they are supervising are being properly managed by having completed reports that answer the crucial questions necessary for clients to set reserves or update shareholders. These reports are not "optional." Lawyers who are "too busy" working their cases to update the client are taking a daily risk of being fired. Our law firm has assumed responsibility for a number of cases that were previously being handled by attorneys who were very good at litigating and trying cases, but the client had become fed up with unreturned phone calls, or persistent failure to comply with regular reporting requirements.

A call from a potential new client is great, and could result in new business and revenues. A call from a current client, who will almost certainly pay you for responding to the call, is more important. Failing to realize that distinction can get a lawyer fired.

Bait and Switch

Another great way to get fired is to tell a client early on that a case is very defensible, and work the case up for two years, at a great cost to a client, only to tell the client in the 90 days or so leading up to trial that the case has taken a dramatic turn for the worse and that it really needs to be settled. Clients tell their lawyers over and over again that they simply do not like surprises. In my experience, clients will not fire lawyers for telling them very early on that a case has serious problems and may need to be settled. In fact, most clients greatly appreciate a candid, early evaluation, even if it contains bad news. Clients will also usually not fire an attorney who gets an unfavorable trial result as long as the client has been fully informed of the risks and challenges and decides to try the case anyway. What clients do not like, and most do not tolerate, are lawyers who sell them a bill of goods by telling them that the case can be defended only to get scared on the courthouse steps and tell the client numerous reasons why it is just too risky to take the case to trial.

Similarly, sophisticated clients understand two things. First, your early evaluation is not necessarily your best, most informed evaluation. Second, things can and do change during the life of a case. However, lawyers can and do create problems for clients---and, ultimately, themselves---when they are consistently optimistic on the front end of a case and consistently pessimistic as the prospect of selecting a jury and putting their skills on the line approaches. This "bait and switch" approach destroys trust between the lawyer and the client, and often results in the lawyer being fired on that case and losing the opportunity to ever work with the client again.

Hand Off a Case to a Young Lawyer Without Supervision or Input from the Lawyer Who Was Hired by the Client

Most sophisticated clients tell us that they "hire lawyers, not law firms." That was certainly true for me when I tried to match up quality counsel with a new case. If you are the lawyer who is fortunate enough to get the phone call and be hired to handle a case or series of cases, you must commit to having enough input into the development of the case defense, and the key events in the case, in order to honor the client's trust when you were hired. Certainly, clients realize that the lawyer they hired will have associates, paralegals, and sometimes beginner-level attorneys, working with them on cases. However, most clients expect that the lawyer they hired will know enough about each case and its strategy to have substantial input on how the case is handled. Over time, the other lawyers in the law firm, if they are properly trained and if they listen carefully enough to the client, may develop the same level of trust to assume full responsibility for that client's cases. Until that strong level of trust has been established, and the "hired lawyer" has confirmed that the client is fully comfortable with complete responsibility being reposed in another attorney in the office, the "hired lawyer" must have sufficient input to know the client's expectations are met. If the "hired lawyer" does not have time to truly supervise and direct each case, that lawyer takes a significant risk of becoming the "fired lawyer."

Just Assume that the Client Knows About Your Good Work, Without Telling the Client What You Are Doing

As previously noted, our firm has had cases transferred to us from lawyers who I know are excellent attorneys who do good work. It is always uncomfortable when that lawyer, especially someone who I respect, calls to ask why the cases were transferred. On more than one occasion, I have had to tell the lawyer, after reviewing their files, that the client probably had no idea of all of the work that was being done, because the file did not contain correspondence to the client updating all significant developments.

It is extremely rare for a client to tell a lawyer that he or she is providing too many updates or too much information regarding recent developments. So long as the information is being shared in a concise, non-wordy manner, clients truly appreciate prompt updates of all significant developments. Even if the client prefers to get most of its information in the form of reports of counsel every 90 or 180 days, most clients still appreciate short update emails contemporaneously with each significant development. On the other hand, lawyers whose egos insist on the notion that the client should "simply trust that everything is getting done," or who are not sensitive to justifying their ongoing legal bills by keeping the client informed of period case developments, take a major risk of getting fired.

Fail to Listen to What the Client Wants

Lawyers can get so caught up in developing a successful trial strategy or defeating the opposition that that we fail to truly hear what the client wants. Some clients want the lawyer to develop an effective defense strategy and evaluate the risks, but they do NOT want to go to trial. A lawyer who keeps insisting that the case should be defended through trial, when that is not what the client wants, definitely risks getting fired (or not hired for the next case). Other clients want to aggressively defend cases through trial even though the case has major risks of losing. An attorney who is tone-deaf to the client's desire to go to trial, and who harps on the scary risks of losing at trial, or litigation costs, risks alienating and losing the client.

The focus of my practice is medical malpractice defense. Even within that fairly narrow practice area, client expectations and approaches vary a lot. Some are quite bullish and willing to try even the cases that are difficult or present substantial risk of a verdict. Others would prefer to settle cases that we feel on balance are likely to be won at trial. While there is a fairly consistent concern across the board about keeping legal expenses manageable, some clients still want to incur the expense of digging deeper and turning over more rocks than others. Ultimately, however, the lawyer's job is to do "what the client wants." Lawyers who think they "know better" than the client, or who fail to develop an understanding for how the clients want cases handled, may find that the client goes elsewhere for future legal needs.

Over-Work and Over-Bill the Case As If It Is the Only Case You Will Ever Get from That Client

There is a certain self-fulfilling prophesy in treating a case as if it's the only case the client will ever assign to you. Lawyers who try to maximize the billing associated with the limited cases that they receive from a particular client are very likely to receive very few assignments from that client in the future. On the other hand, if you view each case as an opportunity to truly help your client resolve the matter in the most efficient, inexpensive way possible, while maximizing a successful result, you are far more likely to get more cases from that client. Therefore, if you truly believe that the first case you receive from a client is the first in a long line of assignments you will be receiving, and you treat the case as if you are a partner with your client and not a mere vendor, a long-term relationship becomes much more likely.

Write Really Long-Winded Reports or Copy-and-Paste Too Often

Most clients have report forms that we have to complete, or they require narrative reports after major events in the case. Some report forms are long and require you to fill in blanks; other reports are shorter, but require you to squeeze in lots of information about the case according to various topics and headings, some of which may not be particularly helpful. The key to any report is being succinct and telling the client what it needs to know at the very beginning and the very end. Some lawyers like to write and they write well, so they go on, and on, and on, without the client knowing what the key point is or the next step in the case. Most clients do not have time to read a long-winded report that shows what a good writer the lawyer is, but that does not tell the client the key facts they need to know, how those facts affect the case, and the next step in the case.

Another problem is that some lawyers cut and paste the same paragraphs from the first report to every subsequent report without changing the facts or the analysis based on the development of the case. Some clients will not catch this, but it only takes one time for the client to notice that a report has been copy-cut-and-pasted too many times with no new information being added and that the analysis has not changed as the facts have developed. This risks damaging the clients trust that the lawyer is continuing to re-evaluate the case as it progresses.

Come Unprepared to Mediation or Settlement Conference

Some attorneys prepare their case for a mediation or settlement conference based on how they think the other side is going to prepare for it. Clients do not like it when they see a well-prepared, passionate, and thoughtful presentation from the plaintiff at a mediation and then see their attorney totally unprepared to address the plaintiff's arguments with an equally well-prepared and thoughtful presentation. I have personally received new work as a result of simply being better prepared for a mediation than the lawyer for a co-defendant.

A lawyer should prepare the case for mediation or settlement conference the way it needs to be prepared, regardless of how the other side prepares. It is also usually insufficient for an attorney in opening session to just say, "We are here in the hope that we can get the case settled." [No kidding. Thanks for that helpful input.] Even if the case appears to have little to no value, it is still a serious matter which the client, unless attending the mediation under duress, would like to resolve if possible. A lawyer who fails to prepare for mediation so that the client knows he or she is taking the case seriously may fail to get future case assignments from that client.

Find a Conflict Between Defendants Half-Way Through a Case

We often have the opportunity to represent multiple individual defendants employed by or affiliated with the same provider or insurer in a single case. This can, of course, create conflicts of interest between the defendants which should be addressed at the outset of the case. Where a legitimate, non-waivable conflict exists, one or more of the individual defendants is entitled to be represented by another attorney.

Lawyers who fail to aggressively explore and address conflicts at the very beginning commit firable offenses. Clients do not like to have to transfer a case to several new attorneys due to a conflict that developed between defendants half-way through the case. In addition to creating additional expense and complication, a change of counsel midway sends up a red flag to the opposing attorney that something is amiss between the defendants. If a conflict truly exists, it should be identified early after all defendants have conferred and determined whether one lawyer can represent multiple defendants. Developing a conflict after the case has been worked-up for six months to a year shows that the lawyer is unprepared, did not do his/her homework at the right time, or is simply scared and intimidated by the case and wants to dump it. Most potential conflicts can be worked through by meeting with each defendant and helping them to understand that it is in everyone's best interest for them to be represented by the same attorney and be on the same page regarding their defense. Conflicts only complicate the case for everyone, except the plaintiff.

Defensively Refuse to Take Ownership for Missteps

No matter how client-oriented a lawyer may try to be, situations will occur where the client's wishes are not met perfectly. When the client calls to express disappointment or any hint of dissatisfaction, the lawyer should view this as an opportunity to improve the level of service to the client. Sadly, many lawyers allow their egos to get in the way, and react defensively. Lawyers who insist that they are perfect, or that the client's expectations are unreasonable, may be taking a big step toward being fired. Instead, the wise attorney will fully own his or her mistake or failure to meet client expectations, and propose a plan for how to make sure that the same mis-step does not occur in future cases. This approach allows the client to feel heard and valued, and actually improves the bond between lawyer and client.

Trust Is Key

Getting new work is great, but it can be difficult and unpredictable. Keeping work from a trusted client---and avoiding getting fired---should be easier and frankly more profitable and secure, if we commit ourselves to good, strong, client-focused practices. It takes years of responsive, reliable reporting, backed up with results that fit the lawyer's evaluations, to build trust with a client. However, that trust can evaporate quickly by getting too comfortable, too busy, or too ego-centric to avoid pitfalls that can be the first step toward getting fired as a lawyer.

Practicing Law With the End in Mind.
By James F. Bleeke

The events of 2001 have caused many in our nation to reanalyze our priorities and our life's goals. Even before the tragic events of September 11, I had been given ample reason to carefully examine the goals of career and life after my brother, Richard Bleeke, died suddenly of a cardiac arrhythmia in January 2001 at the age of 43. Rich had never been ill, and like the victims of the 9/11 tragedies, had absolutely no warning that January 15, 2001 would be his last day to go to work or visit with friends and family. {Rich began his last day at 4:30 a.m. by driving his long time friend and law school roommate, Terry Miller, to the airport as he flew to Baltimore where he was soon to relocate to anew position with the Social Security Administration}. Looking back at Rich's life as a lawyer, a friend, and a brother reveals that he was "practicing law with the end in mind."

Stephen Covey's popular best-seller, The Seven Habits Of Highly Effective People, devotes a lengthy discussion to the concept of "Beginning With The End In Mind." Covey asks the reader to picture himself attending his own funeral and waiting with anticipation to see what will be said to summarize his life by a family member, a friend, a co-worker and an acquaintance from a church or other community organization. With death of my brother, Rich, who in addition to the same family roots, also shared the same legal profession, and had attended the same grade school, high school, college and law school just three years ahead of me all along the way, I was presented with a closer glimpse than usual of the imaginary scenario posed by Stephen Covey. I thought the insights I gained from that difficult experience might be worthwhile to my friends and colleagues around Indiana.

The kind and heartfelt comments I received in person and via notes from Rich's colleague's were words that I would be proud to hear at my own funeral. For example, the very first person to stop by the funeral home on a cold January afternoon was the waitress who often waited on Rich when he ate lunch at the Window Garden Restaurant on the 14th floor of One Summit Square in Fort Wayne. She said, "You know I just had to stop by because Rich always had a kind word for me and really cared about how I was doing. I will really miss him."

In Fort Wayne, the Allen County Bar Association also has a wonderful tradition of honoring fellow members of the Bar who have died with a noon-time gathering in one of the beautiful refurbished Allen County Courtrooms. Several of the Judges gather and one reads a proclamation from the Court and then offers members of the Bar, and others in attendance, an opportunity to share their own words concerning their deceased colleague. As Rich's family, we were invited to attend, and share in the comments, that included both laughter and tears, as lawyers, court staff, and friends shared how Rich had touched their lives, while doing his best to represent his clients "the right way", and to help other lawyers whenever the opportunity presented itself.

Other letters from friends and colleagues included the following comments:

Rich was my law school classmate in Bloomington and a good friend to me then and in years since. Although separated by some distance, we would see each other at law school functions and from time to time in Fort Wayne and Indianapolis. When I went to work for Governor Bayh and later sought appointment to the Supreme Court, Rich was extraordinarily kind and generous in his support of my efforts. He volunteered to contact important people in the process on my behalf and did so most effectively. As best as I can tell, he did this entirely out of friendship, never asking a single thing in return.

[Frank Sullivan, Jr., Justice, Indiana Supreme Court]

If I may, from a personal standpoint, your brother was a real class act. He never once said no to me when I asked him to help out in the education of lawyers. His enthusiasm, charisma, and ethical spirit made working with him a true pleasure. And it became infectious among his fellow panelists. You always knew when you were on a panel with Rich Bleeke, that the best was expected, and he made that challenge fun.

[Jeffrey Lawson, Program Coordinator, Indiana Continuing Legal Education Forum]

Your brother was very good at what he did. More than that, he was my kind of lawyer. The trial that he and I had remains the only trial I have ever been in which I do not remember making an objection during the trial. Because there was nothing he did incorrectly. He had mastered the facts and the law, and was also a master of trial presentation. Each trial lawyer has two goals in every case, and sometimes they conflict. The lawyer is trying to win for the client. The lawyer also is trying to make the system work as it is intended to work. Some refer to these goals as duties: the duty to zealously represent the client and the duty to the court as its officer When these two goals conflict, trial lawyers usually fall into one of two groups. One group does whatever it takes to win. The second group will only do what is allowed by our system, because their duty is first to see that justice is done, and that overrides their selfish interest in winning. Your brother was in the second group, so are all the best lawyers. He was truly an excellent trial lawyer, and I can think of no greater compliment to give.

[Mark Lienhoop, Newby Lewis Kaminski & Jones]

In the brief time I knew Richard, I was impressed with his forthright professional manner but at the same time, sincere, caring way he spoke to me. He made me feel as though he was interested in me and not just as a client.

[Judy Church, a client in Rich's law practice]

Richard has been like a brother to me since we first met back in the seventh grade. I will always treasure the memories of our time together on the golf course and in school, how Richard regularly wrote to encourage me during my first difficult year at West Point and how he came to my graduation, and how he remained a close friend (and a friend and lawyer for my parents) ever since.

[Rev. Craig Werling, Minister in South Dakota]

There is something about going through a particularly challenging experience that brings people together. Certainly, law school created those tight long-lasting bonds among classmates. When we started as first year students, we were all a little intimidated and we found solace in knowing that everyone was in the same situation. . . . It has been nearly twenty years since we graduated. As tight as those bonds were in law school, it is easy to lose touch with one another with the demands of work, family and distance. Rich, more than anyone else in that group, made certain that he kept in touch with everyone and made sure that we were all aware of how others were doing as well. That point was brought home to me very poignantly when I had surgery a few years ago. As you probably know, I have epilepsy. Fortunately, I hadn't had any seizures since childhood until I was 32 years old. At that time, I began having seizures frequently despite trying numerous medications, they couldn't get them under control. As a result, I went to the Mayo Medical Center in Rochester, Minnesota and had brain surgery. My wife, Denise, has said on numerous occasions since that surgery that other than her and perhaps my parents, Rich showed more concern for my condition and subsequent recovery than anyone. In addition, Rich made sure that the other tailgaters were aware of my condition and as a consequence, they also stayed in touch. Their support and encouragement at that time was a key to my recovery at a very trying time in my life. . . . It was just Rich's nature to be supportive and compassionate for others. . . . When some people pass away with money in the bank, it is said they were wealthy. Although his life was too short for those of us left to deal with his loss, Rich amassed wealth that cannot be measured in dollars and cents - the admiration, respect and love of the many people upon whose lives he made a positive impact.

[Jim Bohrer, Mallor Cledenning Grodner & Bohrer]

In the hectic stress-filled life of a lawyer, it is very easy to lose sight of the end of the week, let alone the end of a career or a life. However, if we were able to truly "keep the end in mind" in our daily interactions, our approach to our daily interactions with our adversaries, our colleagues, our office staff, and our families and friends might change significantly for the better. At our funerals, how many of us really want people to say, "You know, he was one tough lawyer who always stuck it to the other side", or "Boy, he sure did win a lot of cases and make a lot of money." Instead, wouldn't we all be better served as lawyers, and human beings, if we followed the more difficult, but rewarding "Simple Path" followed by Mother Teresa, who lived with the end in mind by embodying the principles of a sign on the wall of Shishu Bhavan, the children's home in Calcutta.

People are unreasonable, illogical and self-centered, Love them anyway
If you do good, people will accuse you of selfish, ulterior motives,Do good anyway
If you are successful, you will win false friends and true enemies,Succeed anyway
The good you do will be forgotten tomorrow, Do good anyway
Honesty and frankness make you vulnerable, Be honest and frank anyway
What you spent years building may be destroyed overnight, Build anyway
People really need help but may attack you if you help them, Help people anyway
Give the world the best you have and you'll get kicked in the teeth, Give the world the best you've got anyway.

Mediation Strategies: What Plaintiffs Really Want
By Jim Bleeke, BleekeDillonCrandall Attorneys

As defense attorneys, we often focus most of our efforts on assembling the most crucial facts and the strongest legal arguments to build defense themes for our clients. We hope that the strength of our thoroughly analyzed positions and our resolve to fight for our clients ultimately will prevail either by persuading plaintiffs to capitulate or at least settle cases for amounts that our clients deem reasonable. In the absence of settlement, we rely upon judges and juries to recognize the justice embodied by our well constructed defense themes.

However, the reality is that the vast majority of our cases settle for reasons that may not hinge upon the strength of our legal or factual arguments. For those of us defense attorneys who have also handled the occasional large plaintiff's case, the factors that influence settlement decisions by the person bringing the lawsuit often become more apparent. Those factors may have far less to do with advocacy by the defense than upon psychological reasons influencing the person who initiated the lawsuit. Therefore, as defense lawyers, we should all be equipped with an understanding of those psychological and emotional factors that often are crucial to prompting a case to settle. This article attempts to analyze some of those key factors.

Key Motivating Factors for Plaintiffs

1. Money! Of course, money is the first motivating factor that cynical defense lawyers think of when determining the reason behind a lawsuit. And in the end, money will be a crucial factor in settling any case. However, it would be short-sighted to think that money is always the most crucial factor to whether a case will or will not settle. How important money will be to resolving a case hinges upon the individual plaintiff's attitude toward the other motivating factors that are discussed below. Only when those factors have been explored and properly assessed is a defendant likely to achieve the optimum financial resolution of a case.

2. Being Heard. When cases do not settle prior to trial, one of the more common reasons is that a plaintiff really wants to have his or her "day in court." While that phrase may mean different things to different plaintiffs, it often means that the plaintiff really wants someone else to truly hear their story. Because "being heard" can be such a large motivating factor driving a lawsuit, it is wise for the defense to seek every opportunity to allow the plaintiff to feel heard during the litigation process.

One key opportunity for allowing plaintiffs to feel heard is during their deposition. Certainly, the defense wants to confront plaintiffs with the weakness of their case and ask the tough questions that will give them second thoughts about taking the case to trial. However, to position a case for an optimum settlement, it is equally important to allow plaintiffs an opportunity to "tell their story" and explain why they brought the lawsuit. That objective can be accomplished by simply asking the plaintiff what it was that prompted them to bring the lawsuit or to visit an attorney in the first instance. To re-emphasize the point that the defense truly wants to hear what the plaintiff has to say, it can be helpful to close the deposition by asking the plaintiff whether there are any other facts or issues that the plaintiff wants the defendant to consider in evaluating this case. Even if such a broad question draws an objection from plaintiff's counsel, it shows the plaintiff that the defense really wants to hear what the plaintiff has to say and does not want to overlook any issue that the plaintiff feels is important.

At mediation, the objective of allowing a plaintiff to feel heard often is best accomplished by the defendant beginning the presentation in the joint session by stating what the defense truly sees as the plaintiff's strengths. This approach, which is discussed in more detail below, frequently softens the plaintiff's adversarial attitude and decreases the desire to "have their day in court," because someone has already heard and identified the strengths of plaintiff's case.

3. Getting An Explanation of What Happened and Why. Many lawsuits result from the feeling by a plaintiff that something unfair happened to them and that no one took the time to explain why and how this injustice occurred. Consequently, an important element in moving many cases towards settlement is to actually explain (but not simply rationalize in a defensive way) how the incident in question happened. Offering another perspective and explaining to the plaintiff that what happened to him or her was not a result of an intentional act or callous disregard for the plaintiff can go a long way toward soothing the negative feelings that drive the litigation.

4. Vindication. One of the greatest driving forces for a lawsuit is a plaintiff's need for vindication of their cause. Often, one of the strongest needs of a plaintiff is an acknowledgment by the defendant that what happened was simply wrong and that the plaintiff had a legitimate reason for bringing a lawsuit. Of course, most settlement agreements specifically deny any admission of liability on the part of the defendant. However, that does not prevent defense counsel from artfully assuaging a plaintiff's need for vindication during the litigation process. For example, even during the plaintiff's deposition, defense counsel can acknowledge that they understand where a plaintiff is coming from in their claim. This often can simply be made a part of a question by stating, "I understand how difficult it may have been for you to be in this situation, can you please tell me about your feelings during the incident or immediately thereafter." Similarly, at mediation, defense counsel can quite honestly state that "we regret the circumstances that brought us to this point." (Of course, nearly everyone can agree on that, because very few people would prefer spending their time fighting a lawsuit when they could be spending their time on more productive or enjoyable pursuits.) In addition, if there are specific events that occurred that a defendant agrees really should not have happened, mediation is an ideal time to acknowledge those issues and explain that the defendant does not want the same events to occur again.

5. Helping Future Individuals Avoid the Same Fate. Many plaintiffs find a purpose in their lawsuit by repeatedly stating that they want to help other people avoid the same fate that they experienced. For some plaintiffs, this is simply a rationalization to justify the lawsuit or assuage guilt feelings associated with asking for money from someone else in a lawsuit. However, for other plaintiffs, the altruistic purpose of preventing future harm is, in fact, the driving force behind the lawsuit. In either event, a defendant can help eliminate one of the stated reasons for going to trial by acknowledging the circumstances that produced the lawsuit and stating a desire to prevent those circumstances from occurring again. Normally, this can be stated quite sincerely, because no defendant really wants to spend more time in litigation.

6. Punishment/Revenge. One of the more difficult obstacles to overcome in settling a case is when a plaintiff has a strong motivation to seek revenge or punish the defendant for whatever gave rise to the lawsuit. Anger and the desire for revenge often can only be addressed by explaining the limitations of the legal environment to exact punishment in the form a plaintiff might prefer. Ultimately, civil cases only result in a money damage award and only rarely result in punitive damages. It can be helpful to explain during the mediation process that even if the case goes all the way to trial and the plaintiff obtains a substantial damage award, that award will not alter whatever injustice the plaintiff may feel he or she has suffered. That reality, coupled with an adequate opportunity for the plaintiff to express anger or grief during a deposition or even during mediation, may help to reduce revenge or punishment as a barrier to settlement.

7. Teaching the Defendant a Lesson. Closely associated with the desire for punishment or the motivation to prevent a similar incident for future plaintiffs is the goal of forcing a defendant to learn from past mistakes. Again, the best approach to a plaintiff who has a strong desire to teach the defendant a lesson is to express regret over the situation and explain what the defendant has learned from this incident that might impact future individual or corporate behavior. Frequently, the mere acknowledgment of the strengths of certain factual or legal arguments from the plaintiff's perspective can go a long way toward suggesting to a plaintiff that a defendant has learned something from this incident.

8. Assuaging Personal Guilt. In personal injury cases brought on behalf of an injured family member (a child or an elderly parent,) a strong sense of guilt by the person bringing the lawsuit may be a driving force for the lawsuit. Offering large sums of money frequently does not really address the issues of guilt by a person bringing a lawsuit on behalf of an injured or deceased loved one. Instead, an empathetic approach in which the defense lawyer demonstrates an understanding of the emotions that the plaintiff must be feeling as a result of the incident can help to defuse strong feelings of guilt that may otherwise prevent a plaintiff from resolving a case short of trial. Again, it may also be useful to point out the limitations of the civil justice system in undoing a severe injury or death of a family member. Where the defense lawyer senses that guilt is a strong motivating factor, it may be helpful to advise the mediator of that obstacle prior to mediation so that the mediator can be prepared to be empathetic and help the plaintiff work through those feelings.

9. Wanting the Whole Thing to Be Over! Defense lawyers who have not handled their own cases on behalf of a plaintiff may drastically underestimate the desire during a case by many plaintiffs to simply end the process and move on with their life. While many plaintiffs are strongly motivated at the beginning of a lawsuit to be vindicated, exact revenge or recover large sums of money, the litigation process can be so emotionally overwhelming that plaintiffs may at several stages of litigation simply want the case to be over. Often just before or just after the plaintiff's deposition, the previously enthusiastic plaintiff may be so afraid or so beaten down by the process that they simply want to end the case without regard to the amount of the settlement. Of course, most plaintiffs' attorneys are skilled at rehabilitating their clients and restoring their desire to proceed in "the pursuit of justice." An understanding of what motivated the plaintiff to bring the lawsuit initially allows the plaintiff's attorney to remind the client of why they brought the case and why they need to press forward despite the emotional toll exacted by the litigation process. However, as defense lawyers, we need to be keenly aware of signs that a plaintiff may be tiring of the litigation process and looking for a way out.

10. Avoiding Trial. As a case reaches the courthouse steps, defense attorneys need to be aware that many plaintiffs become extremely scared about what may happen at trial. The risk of losing the case and having a jury tell them that they were wrong can be as strong of a motivating force as the chance that they may not recover any monetary damages. Lay people who are not used to the litigation process often find it very difficult to handle the ups and downs of jury selection, direct examination and cross examination of witnesses and adverse rulings from a judge. A defense attorney who has not had the experience of handling plaintiffs' cases may never fully understand the amount of hand holding and counseling that is required to keep a plaintiff from folding and demanding that a case settle as the trial progresses. A defense lawyer who can subtly explain during mediation the emotional roller coaster and loss of control that occurs when settlement negotiations break down and the case is forced to trial can greatly increase the chances of successful resolution of a case at mediation.

Mediation Strategies to Address Plaintiffs' Motivating Factors

What Does Not Work: "I'm Right" - "No, I'm Right!"

Our clients, just like most human beings, generally believe that they are justified in the positions they are taking in litigation. As we zealously advocate for our clients, we attorneys often identify with the righteousness of our clients' causes and legal positions. As plaintiffs and defendants stake out and become more entrenched in their respective positions in each case, the exchange of arguments at times can sound like two children arguing over who is "right."

One exercise utilized to help train people in more effectively handling relationships asks two individuals to stand face to face holding one of their arms in front of them and clasping hands with their "adversary" as if they were going to arm wrestle. The first individual is then asked to forcefully say, "I'm right!", while pushing the hand of their adversary down like the victor in the arm wrestling contest. In response, the other person, while staring straight in the eyes of their "adversary," then states back even more firmly, "I'm right!!", while completely shifting the arm wrestling pose to the opposite side where the responder is victorious. This process is repeated over and over for about two minutes, with each person stating more firmly and more intensely each time, "I'm right!!!", followed by the other person responding more firmly and vehemently, "I'm right!!!!".

At the end of this exercise, the parties are asked to comment on how they felt during the exercise. Most individuals quickly recognize that they feel foolish and that the entire exercise is pointless because no one is persuading the other person of anything. Of course, that is the point of the exercise. Neither person feels heard or acknowledged when the other person is simply focused on stating his or her position louder and more fervently.

As part of their relationship training, the scenario is then switched so that the parties assume the same position but when the first individual strongly states "I'm right!" and presses the other person's arm into the victorious arm wrestling position, the adversary changes the response. Instead of simply stating more strongly, "I'm right!!", the adversary instead calmly states, "I understand your position, but this is my position," while firmly, but unemotionally moving the other person's arm in hand to the opposite position. The participants again do this exercise for two minutes and then discuss how it felt for each individual. In most instances, the person was assigned the task of repeatedly saying, "I'm right," again felt stupid and in this case even more foolish. On the other hand, the individual who acknowledged the first person's position, but then firmly and calmly stated that they had a different position, felt calm, reasonable and in control. This exercise contains lessons that can be very important in attempting to reach agreement at mediation. Parties are very unlikely to reach agreement if they simply go back and forth stating "I'm right", "No, I'm right!" Instead, the goal early on in mediation should be to allow the plaintiff to feel acknowledged and heard.

To the extent that defense counsel and the defense client can persuade plaintiff that his or her position actually is well understood and acknowledged, it is much more likely that the plaintiff will then be able to hear and understand that there is another possible position that may have some merit and could result in a different outcome than the plaintiff anticipates from his or her perspective. Therefore, one of the primary goals of an opening session in mediation should be to allow the plaintiff to feel heard. This can be done first by listening very carefully and attentively (and non-defensively) as plaintiff's counsel states plaintiff's position at mediation. However, just listening attentively seldom is enough. The most effective way to allow a plaintiff to feel acknowledged and heard is to restate what the defense lawyer truly believes is the strengths of plaintiff's position. Thus, it can be quite effective for defense counsel to begin their opening mediation comments by genuinely acknowledging what the defense sees as the greatest strengths in plaintiff's case. It is important not to overstate or understate the realistic view that the defense has of the plaintiff's advantages in the case. Examples of advantages held by the plaintiff can include the following:

1) Plaintiff was severely injured or damaged; (2) plaintiff makes a good witness or is sympathetic; (3) plaintiff has an excellent (or at least zealous) attorney; (4) negative bias exists against the defense client or the industry of the defense client, etc.

Once plaintiff's strengths have been stated, while looking plaintiff directly in the eye to see whether they feel heard, a defense attorney can even invite plaintiff and his or her counsel to point out any additional strengths or advantages that the defendant may have overlooked and that need to be considered in carefully evaluating the case. After the defense attorney has fully stated his or her view of the plaintiff's position, the defense lawyer can then calmly and confidently state, "... but this is our position." It is much more likely plaintiffs will actually hear and acknowledge some possible merit in the opposing viewpoint when they feel that the defense has first listened and understood the plaintiff's position.

Peer Review Rated Super Lawyers
View More Videos