Editor's note: This is the third in a three-part series.
Like many lawyers, I love trying cases. Trials are the most celebrated aspect of litigation. In the popular (or at least the legal) imagination, they evoke the Roman arena, with trial lawyers as gladiators, the jury as the enthralled spectators, and the judge as Caesar, signaling thumbs up or thumbs down. Big trials draw media coverage. Legal newspapers keep score. For the lawyers involved, trials are intense, challenging and fun.
For business defendants, trials are not as much fun. In-house lawyers and their clients generally do not yearn to try their cases, and in fact their cases are rarely tried. Just over one percent of federal civil cases go to trial, and it is easy to figure out why. Trials are a risky, expensive and inefficient way to resolve disputes. A business that finds itself on the far side of the "v." most of all wants out, at the earliest date, the lowest cost and the least fallout. Though you could not tell from the self-laudatory biographies on lawyers' websites, the wins most advantageous for the client are usually quick, cheap (at least relatively) and, from the public perspective, deadly dull.
It follows that the defense lawyer's martial interest in trying cases must give way to the client's economic interest in a fast, inexpensive and successful resolution of the case. Such early successes generally will not capture the popular imagination as trials do. Spectators will not likely crowd the courtroom to see the argument of a motion to dismiss. Sketch artists will not depict the "Perry Mason moment" when the company's brief exposes the fatal flaw in the plaintiff's claims. There will be no gripping opening statement, no killer cross, no impassioned closing. But for the client—who commands the lawyer's zealous representation—creativity at the outset of the case can save millions of dollars. That is a salient measure of success.
It is hardly an earth-shattering insight that winning an early dismissal or paring the case down to an unprofitable nub is generally a better result than a victory after years of discovery and a trial. That makes it all the more puzzling that so many lawyers do not market their ability to achieve these preferred results, and that clients so often do not seek out lawyers with these skills. There are several possible reasons. First, the mystique of trial prowess may continue even though the number of trials has dwindled to near oblivion. If so, the disjunction may be temporary. The legal market cannot long continue to swim upstream against the current of economic incentives.
A second possible reason why such pretrial acumen is undervalued is a perception that pretrial proceedings, including dispositive motions, do not require exceptional legal skills. That may be true for run-of-the-mill motions in the run-of-the-mill cases that litter many companies' dockets. But it is not true in cases that are significant because of their size, precedential effect, business ramifications, or risk of proliferation. In those cases, the key question is what else, beyond the obvious cookie-cutter motions, objections and defenses, the company's lawyer can do to win or achieve a decisive advantage. Answering that question can require creativity, which is both a talent and a skill. As a skill, it can be honed through experience. But to deploy that skill consistently and effectively in litigation requires a disciplined, thoughtful search in each case for the new, perhaps untried approach that can end or cripple the case. In every new case, I force myself—and anyone else I can commandeer—to brainstorm about threshold questions, such as:
Is there a "silver bullet" defect that can get rid of this case?
Is there any way to challenge jurisdiction?
Is there a creative legal theory that the complaint fails to state a claim?
Is there a way to eliminate or limit at least some of the claims at the threshold?
Are there issues regarding opposing counsel's participation in the case?
For example, has she sought to crowdfund the case?
Is she representing a public entity on a contingent fee basis?
Can we borrow principles from another area of law to advocate new legal tests that by analogy should apply here?
And, what arguments has no one thought of before?
These questions are merely illustrative. The ones you start with, and the ones the brainstorming yields, will vary from case to case. The point here is that pretrial proceedings in significant cases do not require exceptional skill only when defense counsel handle them in an unexceptional way. In-house counsel thus should press their outside lawyers in every significant case to undertake a rigorous and creative search for ways to defeat or debilitate the plaintiff's claims.
A third possible explanation for the stunted focus on threshold strategies is the calculation in many cases that they probably will not work or be cost-effective. Undoubtedly, legal motions will sometimes be futile. I have appeared before judges who flatly declared, "I do not grant summary judgment." Your brilliant legal argument is like a tree falling in the forest if the trial judge neither reads nor listens to it. Even in the most challenging settings, though, filing a dispositive motion often may have value—for example, to educate the judge, preserve the issue, discredit the plaintiff, or corner her into concessions. In addition, a motion may be worthwhile even if it will not dispose of all the claims. Dismissal of some claims may diminish the value of the case and hence the plaintiff's commitment to it. Further, a motion to dismiss may make sense even if the plaintiff can fix the flaw by redrafting the complaint. The period between dismissal and re-pleading frequently is an opportune time to settle the case for a negligible amount.
Creative defenses also need not include a motion to dismiss. For example, years ago, plaintiffs used a client's product under a patent license agreement that specified a forum for all disputes related to the license. The license agreement further provided that a breach of the agreement terminated it. Multiple plaintiffs brought class actions against the manufacturer in state courts around the country, none in the forum designated in the contract. The defendant could have moved in each jurisdiction to enforce the forum selection clause. The motion would have prevailed in many jurisdictions, but perhaps not all. Moreover, having to litigate the issue in multiple forums was precisely what the forum clause was intended to prevent. So on behalf of the defendant, we sued the named class plaintiffs in the designated federal forum, advancing the good-faith claim that their violation of the forum clause extinguished the patent license and that they therefore were infringing the patent by using the product. We also appended an ancillary claim under state law for breach of the forum agreement, and promptly moved for summary judgment on that claim. After vigorous litigation, the court did not accept the patent claim and declined jurisdiction over the contract claim, suggesting that we proceed in state court. To avoid a reprise in state court, the plaintiffs agreed to consolidate all the cases in the designated forum, sparing the defendant an enormous burden in fees and costs alone.
PREPARED AND AGGRESSIVE
I am not suggesting a knee-jerk barrage of threshold motions in every case, or heedless aggressiveness for its own sake. In any given case, there may be no threshold arguments the defense can advance in good faith. Or a motion, though colorable, may be trivial or risk alienating the judge. Each case requires strategic judgment. But the facile assumption of futility stifles many creative and potentially meritorious strategies, and at least as to legal arguments, defense lawyers more often err by being unduly reticent than by being overly aggressive. To counteract any such reticence, I am proposing that defense counsel in every significant case start off with an exacting search for creative ways to terminate, defang, or otherwise undermine the plaintiff's case. And I am proposing that clients insist on that exercise and make sure their lawyers have the skills to do it well. But here is the critical point: This systematic search for novel ways out of the case need not succeed all that often to repay the effort and more.
In no sense do I mean to diminish the importance of being ready and able to try cases where necessary and of having lawyers who can do so effectively. Particularly for large businesses facing many cases, a demonstrated capacity to take cases to trial may deter strike suits. But defeating lawsuits or sapping them of value through creative legal strategies in the pretrial stages of litigation also deters lawsuits, potentially at less expense. Given the tiny fraction of cases tried, clients and the lawyers defending them should focus more than they do now on finding the thread that will cause the plaintiff's case to unravel, rather than letting the case move along routinely for a year or more, until the risks have become so acute that the client needs a marquee trial lawyer to parachute in.
Obvious advice? Perhaps. That is why I'm surprised at how often lawyers and their clients do not follow it.