“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.
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.