Monday, July 30, 2012
Turn Left Here
Sometimes you have to try a case. Sometimes the reason to try the case has nothing to do with whether you think you can win. Sometimes, you tell a client hundreds of different times and ways that a course of action they want to pursue is a bad idea. That they are never going to get what they want from the judge. That they are deluding themselves. You can set out in detail why you think that way, what the likely result is going to be, and what risks exist to trying the case. You can tell them that although they feel that X is important, that X is not going to win their case for them because every other fact is against them. You can talk to them about it until you are blue in the face. You can send them letter upon letter. Short of actually withdrawing as counsel on the eve of trial, that's all you can do. Some of them still want to go to trial, even in the face of all of that information. They need to have a judge tell them that they cannot get what they want, otherwise they will never be convinced that their way of thinking is wrong. Sometimes it's just that reaching an agreement with their opponent will make them lose face. That's how it is sometimes, and at the end of the day, whether to settle or go to court is their decision to make, not mine. That's probably why it is infuriating to have a judge insinuate that the only reason you are moving forward on the trial of a case like that is because you have no client control. Really? Clients are not like some radio controlled car that goes where you tell it - every time. They are real people whose emotions and world view don't always let them do what is rational and objectively reasonable. If clients always did what we told them, we would rarely lose a case, the children would always have both parents fully present in their lives, people would do what's fair, and elephants would fly. Sometimes all you can do is make sure the client is fully informed and then try the case, and it has nothing whatsoever to do with client control. Here in the Trenches.