Dal l as Bar A ssoci ati on l Headnotes 17
How to Play a Losing Hand by Richard M. Hunt
After losing a jury trial early in my career I asked the judge if I could contact the jury to learn what I had done wrong. His answer was simple, but devastating: “You don’t need to talk to the jury. Your problem was that your client was wrong.” I played a losing hand until I lost because I did not know what else to do. There is a better way. Start by being the first to know you have a losing case. Knowledge is power. The more you know, and the earlier you know it, the better off you and your client will be, especially with a bad case. This could be the subject of an entire article, if not a book, but the basics are simple: Accelerate your knowledge of the case. Know the elements of every claim and defense, and investigate the facts by interviewing witnesses and reviewing documents in your client’s control before discovery starts and, if possible, before you file your complaint or answer. Most clients want to postpone the expense of investigation, so 9 times out of 10 your opponent will be ignorant at the beginning of the case,
which gives you a temporary advantage no matter how bad your case is. Learn how to negotiate. A huge majority of cases settle before trial, so the skill most likely to help your client is negotiation. This is especially true when you have a bad case, because trial is not a great alternative. Go to seminars, read books, and watch your peers. If you know more about negotiation than you opponent you have a clear advantage, and if you know less, you’ll never get the best deal. Be honest with yourself and your client. It is hard to tell a client their case is bad, and harder to admit you cannot win it, but critical self-examination is the best way to impress your clients over the long run. Sooner or later you client will learn that the case has problems, and if you wait for months and incur big legal fees before you reveal problems that were clear from the start, you will not be any kind of hero. Be willing to start the conversation about settlement. Many lawyers believe that starting a conversation about settlement is a sign of weakness. That is the attitude that leads to settlement based on exhaustion because neither
side wanted to be the first to talk. Somebody has to be first, and if you know your case needs to settle, it might as well be you. If you have accelerated your knowledge of the case and your opponent has not, then at the beginning of the case you are in your strongest position because you know there is a problem and your opponent does not. When negotiating, remember that certainty of outcome and avoiding costs are worth something to your opponent. You do not have to focus on the strengths and weaknesses of your case when you can talk about the fact that early resolution saves everyone money and aggravation. And do not forget that if you are likely to lose, almost any early settlement is better than a long battle. Again, honesty to yourself and client is the key to whatever success is possible. Analyze cost and outcome. If you cannot get out of the game, at least bal-
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ance cost and likely outcome developing your discovery and trial strategy. Bad cases require a laser sharp focus on your opponent’s weaknesses, whatever they are, and your strengths, weak though they may be. Do not waste your client’s money or your time on long shots, and count it as a victory if you can minimize damages or avoid an outright loss at trial. If you practice long enough you will get bad cases, and sometimes you will have no real choice but to wait for a jury to tell you that you were wrong. Most of the time though, if you gain an early advantage in knowledge of the case, evaluate your position honestly, negotiate early and spend your client’s money wisely, you will at least know that you served your client well, which is, after all, what we are hired to do. HN Richard M. Hunt is a member of Hunt Huey PLLC. He may be reached at email@example.com.
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October 2014 Headnotes