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Winning Cases... By Helping Your Lawyer Help You

INTRODUCTION

It may sound strange that trial lawyers need help. The fact is that clients who assist their lawyers frequently achieve better results in commercial litigation.

Effective legal representation is essentially a partnership between the lawyer and his client. It is a sharing of objectives and expectations. It is a delegation of work and an assumption of responsibilities. The good client is as much a part of the trial team as the lawyer he selects.

Communication is a key to effective representation. The first step in winning a case is to have your lawyer understand the facts. Clients sometime assume that lawyers already know the facts or are able to fill in the gaps in a story without prior knowledge. The assumption is unwarranted. Lawyers, even those with years of experience, need the same basic information to resolve a dispute that we learned in school in writing a story. The who, what, when, where, why and how is as central to the story line of litigation as it is to writing literary fiction. The only difference is the reality of the events giving rise to the dispute.

Your initial client conference will not disclose all of the relevant facts. Time causes memories to fade. Perceptions vary from person to person. The recollections of two witnesses to a singular event may vary greatly. The discovery process resolves most contradictions in facts, leaving few facts in dispute. Even if all the facts are not known at the outset, a lawyer has a solid base from which to continue the investigation.

A second important element in helping your lawyer help you win your case is to inform your lawyer of your expectations concerning a resolution of the dispute. It is best to get these expectations on the table at the outset. One might think that it is every client's expectation that he or she is going to win everything, whether as claimant or person claimed against. However, commercial litigation is not ordinarily an end in of itself. It is not a value added attribute of a business enterprise. Most well run organizations litigate only out of necessity, and the better run organizations make every effort to avoid litigation whenever possible. At times, commercial litigation may be unavoidable and that is the time the client must make his or her expectations known.

Helping your lawyer to help yourself in commercial litigation means providing your lawyer with all documentation that has any bearing on the dispute. Clients frequently attempt to determine which documents are relevant to a dispute in an effort to save their lawyer's time and the resulting fees. We caution against such attempted economies for the reason that in commercial litigation the documents tell the story.

With the exception of cases in which there is clear fraud, the documents tell the story in those disputes between right-minded business people on both sides of a transaction that was entered for mutual gain and profit. The reason the documents tell the story is, in cases other than fraud, the documents represent the then present sensory perceptions of their authors. Documents are the best clues as to what was in the mind of the writer at the time it was written. It is the writer's understanding of the events.

The reason the documents are so critical in commercial litigation is that commercial disputes frequently arise out of a miscommunication or a lack of communication. The documents represent immutable evidence to the communication gone astray. An example of the importance of reading documents carefully is best exemplified by a case we handled several years ago. Seven wealthy individuals had signed a promissory note for a partnership that demonstrated on its face that it was a joint and several obligation. Of eleven partners in the transaction, these seven were our clients. They insisted that the note was to be a several obligation, making them liable only to the extent of their partnership interest in the venture, which, as between the seven, totaled forty percent of the entire partnership. The lender that called the note relied on its plain terms and sought to enforce joint and several liability against our clients after the four partners who were not our clients went bankrupt. According to the lender, our clients were liable for the entire partnership debt although they only owned forty percent of the partnership.

The lender was compelled to produce its loan file. I will never forget the experience of pouring over the bank's loan file during a flight from Miami to Spokane, Washington to depose the bank officer who had approved the loan. There, at 35,000 feet, I found an entry in the bank's file that was no more than one-eighth of an inch in height and represented nothing more than a check mark in a box that characterized the loan in a manner favorable to our clients. The information was found in what was known as a loan offering ticket, a loan officer's write-up of the loan application for presentation to the lending committee. The loan officer had checked a box on that instrument that characterized the loan as a several obligation of each of the partners, as distinct from a joint obligation. That meant that our clients were liable for the debt only to the extent of their interest in the partnership.

The deposition of the loan officer proceeded simply with an inquiry into his training, the training he received in preparing and presenting the loan applications of borrowers and that he had prepared all of the bank's paperwork in a truthful manner and consistent with the way in which he was taught. He confirmed that he had prepared the particular offering ticket on which I found the entry; and that the offering ticket was accurate and prepared in the manner in which he was instructed. I purposely declined to ask him about the entry in the little box. Sometime later, just before trial and after much negotiation, the obligation of our clients, which had then climbed to $6.7 million dollars was satisfied for $3.4 million dollars. The settlement was only attributable to that little check mark on one piece of paper out of over 20,000 pieces of paper involved in the case. It was the only piece of paper supporting our case, in the face of many others that supported the lender's claim of joint and several liability. The case demonstrates the importance of reading documents in commercial litigation.

All documents that have a bearing on the case should be arranged in chronological order. The chronology will tell the history of the transaction. This history oftentimes opens the door to solving the puzzle of how the litigation arose in the first instance. It frequently occurs in commercial litigation that the issue of liability is unclear and it is often difficult at the outset to tell which of the parties breached the agreement or what circumstances cause the parties to act in the manner they did. The documented chronology frequently provides answers to these questions, or, if not, illuminates the issues more clearly.

During the course of a case each of the parties has the opportunity to discover facts and documents held by the other. The process is known as discovery and is usually carried out through written questions that are to be answered under oath, called interrogatories, or requests for the production of documents. This is the point at which your help is essential. First, you need to be timely in responding to written discovery. Second, only you have the information that is responsive to the interrogatories or the request for production of documents. Your lawyer can do your work, but it will never be as good as when it is done in conjunction with the client as a team.

Depositions are events at which the client's involvement can be very helpful. At a deposition, a lawyer for one party interrogates the other party or witnesses who may have knowledge or information relevant to the matter. A client's presence at a deposition is very compelling. It is a signal to the opposing party and his counsel that the client has a commitment to the case in terms of time and effort. During the course of the testimony the client can assist the lawyer in suggesting areas of inquiry, follow up questions, offering facts to contradict the testimony of the party or witness, as well as seeing and hearing first hand what the deponent has to say and how the deponent says it.

When you, as the client, attend a deposition, you are better able to evaluate the testimony of the deponent than if you obtain the information second hand from your lawyer or from reading the deposition transcript. In my opinion, the next best thing to having your client at trial is having your client regularly appear at depositions. A client's attendance at deposition will inform him, not only of his opponent's facts, but the nature of his opponent's claims or defenses, and will aid in evaluating whether his opponent is able to support those claims or defenses through the testimony of others.

The client who helps his lawyer should read the deposition transcripts when they are completed. Many things are revealed in print that were not readily apparent when the deponent testified. By reading the deposition, you can target areas of the testimony for closer scrutiny and compare it with the testimony of other witnesses.

After all the depositions have been taken, all documents have been reviewed, and all interrogatories have been scoured for information of value, the case is ready for trial. The good client becomes a working member of the team preparing for trial. He probes the lawyer for the theory of the case, the witnesses who will testify and the documents that will be offered in evidence. The good client is the lawyer's inquisitor, and, at the same time, his sounding board.

There is one footnote to the foregoing. The client who pays his fees in a timely fashion is a client who is expressing his appreciation for his lawyer. Trial lawyers do not work for the praise or the adulation of their clients, most clients do not have the background to judge the quality of their lawyer's work. Moreover, most clients are interested only in the results. Therefore, the thing that demonstrates the client's appreciation more than anything else is his prompt payment of his lawyer's bills.

Slow payment or no payment takes the fun out of lawyering. They pit the client against the attorney as adversaries. Slow payments put the attorney in the unenviable position of always worrying about whether payment will be forthcoming, how far should the account receivable be extended before the attorney must stop the work and await payment, or, withdraw from further representation. These tensions seriously interfere with the attorney/client relationship. No matter how helpful the client, nothing suffices like payment. The practice of law is a profession. Service to the client comes before all else. Considerations of money are secondary. A client's failure to pay or to pay in a timely manner pushes those considerations from a secondary position to a primary position and interferes with that professional relationship.

The client who takes an active part in his case and shoulders his financial responsibility to his lawyer is most frequently satisfied with the results.