“By failing to prepare you are preparing to fail.” So wrote Benjamin Franklin. The quote is often wrongly attributed to John Wooden, the famous coach of 10 NCAA championship winning UCLA basketball teams (as a number of his former players seem to think). Considering the broad array of interests and talents of Mr. Franklin (including, as recent scholarship suggests, his romantic exploits), one wonders what undertaking inspired this aphorism. Was it the result of an early experiment with electricity, a controversial or humorous publication, a political revolution against the reigning world power, a diplomatic overture, or something else?
This old saw was probably not borne of any experience in the law courts of colonial America, although it probably could have been. It is shockingly applicable to today’s litigation process, in which many attorneys “prepare to fail” in one of two ways — the more obvious way, by losing, and the less obvious way, by unnecessarily subjecting their clients to years of angst and unconscionable legal fees.
I begin with a premise that I believe to be irrefutable — from the standpoint of the client and its attorney — any new litigation assignment must begin with the fullest and earliest possible understanding of the knowable facts, applicable law, likely outcome, probable cost, and client objectives. That being said, I move to a far less obvious and more controversial premise. In my view, in more cases than not, such understanding is rarely, if ever, achieved until tragically late in the litigation process after years of angst and unforgivable expense.
Typically, the litigator wades slowly into the case, as a somewhat reluctant swimmer might wade into a cold lake, immersing himself on an inch by inch basis only as necessary to meet the transient tides and swells and occasional large waves generated by motions and discovery. The typical litigator dives in head first, if at all, only when the situation demands it, on the eve of trial, when it is often too late to identify new witnesses, assert new theories of liability or defense, and retain needed experts. Even if he or she has mastered the art of 11th hour preparation, as some lawyers have, and performed magnificently at trial (indeed, even if he has prevailed at trial), he may well have inflicted an unforgivable wrong on the client, by depriving the latter of an informed early evaluation that may have obviated excessive legal fees or by missing the opportunity to short circuit the litigation process through a motion for summary judgment or other litigation tool.
In four decades of practice, I have represented clients in thousands of business litigation and business restructuring cases. In addition, I have spent thousands of hours in the back of courtrooms waiting for my cases to be called. The years of practice and hours of courtroom waiting time have presented an invaluable learning opportunity. I have observed the best and the worst of attorney performance, and everything in between. I must regrettably report that the quantum of performances I would grade as mediocre or worse far exceeds the number of satisfactory performances. The reason for this is, more often than not, a lack of preparation. I cannot count the times I have seen attorneys appear in court for arguments or even trials, or appear at settlement conferences or mediations, without adequate preparation.
- They do not know all of the knowable facts.
- They have not examined the applicable law.
- They have not read the important cases.
- They have not evaluated the strengths and weaknesses of the parties’ cases.
- They have not organized and prioritized their arguments.
- They have not anticipated and prepared responses for tough questions and rebuttals.
- They have failed to identify, interview and prepare necessary witnesses, including experts.
- They have no settlement strategy.
The list can go on and on. And the cost of this failure to prepare is severe. It can obviously lead to defeat. Less obviously, however, it can result in the failure to develop and implement a realistic settlement strategy or endgame early in the case, before the expenditure of hundreds of thousands of dollars, if not millions, in legal fees. In the first circumstance, the attorney’s failure to prepare is embarrassingly obvious. Everyone in the courtroom, from the judge to the disinterested spectator, is practically overwhelmed by discomfort. So much so that it evokes a kind of misplaced sympathy for the unprepared lawyer.
In the second circumstance, that in which lack of preparation results in years and years of unnecessary and ridiculously expensive litigation, the attorney’s misfeasance often goes unnoticed forever. Sometimes, during the course of cases, judges or third party mediators, if mediation occurs, raise questions about it. In-house counsel may also do so. More often than not, the issue is not addressed. In a few pilot districts, parties are required to participate in an “early case assessment” process that effectively compels them to prepare and think about their cases. In the usual case, however, while the judge and the in-house attorney are not the primary culprits, they effectively become the “enablers” for the procrastinating litigators. Only at the end of this long, painful and expensive process after trial or settlement, do the parties sometimes look back quizzically or in disbelief and ask themselves why they did not allow themselves to get to the same place several years and millions of dollars earlier.
A century ago, George Bernard Shaw wrote, “The single biggest problem in communication is the illusion that it has taken place.” I do not know what specific communication problem led him to that conclusion, but I strongly suspect that his thoughts were focused on something other than the relationship between clients and lawyers or between adversaries in litigation. Nonetheless, Shaw’s wisdom is as applicable to those relationships as to the relationship between husbands and wives, parents and children, and siblings.
In most cases the illusion of attorney-client communication far outstrips its reality. Even in those circumstances in which attorneys have performed appropriate and early case evaluations and have met with their clients to discuss those evaluations, the quality of the communication (in short, the degree of frankness) is often lacking. It is difficult to tell the emperor that he has no clothes or to tell the client that his assertions of fact lack credibility and that his arguments lack merit. It is difficult to do so for a variety of human reasons, including the obvious and cynical economic ones. In my experience, attorneys often fail to deliver “hard” and unpleasant messages to their clients early in cases, when such messages can do the most good. Often, if the quality of attorney-client communication improves at all, it improves late in the case after the payment of many legal bills and adverse rulings. Hence, while the quantum of communication between attorney and client may be plentiful, the quality may be lacking.
Professors Franklin and Shaw had it right.