Dispute Settlement Counsel by Michael Zeytoonian.
“I want my day in court.”
“I was wronged and something’s got to be done about it. We need to fix this.”
“What happened to me wasn’t right and wasn’t fair. I want some justice.”
“I want the other side to feel some pain. I want some vengeance.”
I often hear these sentiments in my initial phone call or meeting with a new client. It’s understandably an emotion-driven conversation. When someone has been wronged or dealt what seems like an unfair setback, I don’t expect the person to be cool, calm and collected.
But part of our job as lawyers is to remain calm and grounded in the face of the emotional storm of our clients. It doesn’t mean we don’t feel their pain or don’t get passionate about what we do. In fact it is that very passion to help our clients in their time of deep need that fuels me to stay focused and centered. To help them best, I need to be the voice of reason and provide good judgment, wise counsel and a well thought out course of action, amidst a swirl of emotions that often includes anger, resentment, loss, frustration, disappointment and/or despair.
What does it really mean to satisfy our clients’ stated desire of getting their day in court? How do we as lawyers and conflict resolution professionals satisfy that desire when we know our client isn’t likely to even see that courtroom?
Here is the truth about getting that day in court: Of the cases that get filed with courts, less than 3% actually go to trial. So 97% of the time, the client isn’t going to get that coveted day in court. That case will get dismissed or get settled before a trial ever happens.
Let’s take this reality check a bit further. If one could “handicap” those few cases that get tried, they are usually cases that a client has about a 50-50 chance of winning. If the odds were tipped too far one way or the other, the case would have settled. So since only 3% of the cases get to trial, your chances of getting to trial and winning at trial are about 1.5%!
Would you decide to move forward with this litigation course of action if you knew these odds? When your lawyer tells you that you aren’t very likely to get the day in court you want, he isn’t kidding.
Our clients told us that getting that session in which the other side had to quietly listen to their stories without being able to interrupt, refute or shout down the speakers satisfied a deep need. …Even if they didn’t accomplish any monetary settlement, that “day in court” moment was priceless.
And yet, many people start down this path anyway. I have to believe that if their lawyer transparently and honestly gave them those odds, they wouldn’t go that route. Most clients are pretty smart people, except when their minds are clouded by their fired up short-term emotions. Or unless their lawyers give them some other message that results in clients taking this course of action designed to “prepare for trial”.
Our challenge as good lawyers is to figure out another way of satisfying our clients’ needs to get their day in court, and maybe, just maybe, feel like they won. How do we get the other 97% their day in court?
We ask them open-ended questions about what that “day in court” means to them. What is behind that desire? What would have to happen to make them feel like they got that day? What would they do with that moment that they find themselves standing in the courtroom, the eyes and ears of the judge and/or jury fixed on them? What do they want the judge, or the jury, or the party on the other side of this dispute to know?
I believe it’s not getting to trial that matters; it’s satisfying my clients’ interests as to what that trial represents to them that matters most. Once I know that, I can be more valuable to them.
One client in a sexual harassment case said that “getting her day” to her meant making sure the settlement included preventive measures so that no future employees of her employer would ever have to go through what she went through, and there was a meaningful corrective action taken against the wrongdoer(s). A court could not have given her that, but our settlement did.
Another set of multiple clients working with our team of four collaborative lawyers were satisfied after their case was resolved without even having to file a complaint, let alone go to trial. What was their day in court? During a mediated session, the multiple parties on the other side (the would-be defendants) had to listen to the four lawyers tell the emotional stories of their clients and what they endured at the hands of the other side. The stories were told; the other side sat and listened, without comment and without responding at that time.
We asked our clients in a debriefing session how they were doing after that first session of negotiating. To a person, they saw this session as the equalizer. Our clients told us that getting that one session in which the other side had to quietly listen to their stories without being able to interrupt, refute or shout down the speakers satisfied a deep need. That was worth more than anything else and even if they didn’t accomplish any monetary settlement, that “day in court” moment was priceless. There was subsequently a large and creative settlement (real property payment in lieu of money), but our clients will tell you that that watching the other side have to sit there quietly and listen to these stories without any interruption was the high point of the case. “That was our day in court,” one of them shared with us after. The monetary settlement was helpful, but it was the piece of being able to tell their story, even without a judge or jury listening, that was huge.
A day in court means different things to different clients. Odd as it may sound, often the best way to achieve that “day in court” for the clients is not pressing on toward a trial that rarely happens, but by something else that fills that deep need behind the clients’ outwardly stated positions.
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