I have spoken here before about the folly of posturing, but an incident today made me return to the keyboard.
Many attorneys must think that posturing accomplishes something, because so many engage in the practice, but it is my position that it usually works to the detriment of their clients. Opposing counsel will know the strengths or weaknesses of their case, so posturing is extremely unlikely to force a result. Worse, it may only antagonize the opposition, encouraging them to work harder to make certain your claimed deficiencies in the case are addressed.
Which brings us to today’s matter. I represent the defendants in a federal case in Northern California, and a few months ago the court held a mandatory settlement conference. My clients have no liability in the case, but went into the MSC with open minds. Plaintiffs, however, took the position that the liability was so clear that they would settle only for the full amount they were claiming was owed. During their posturing, they claimed that if we did not settle on the spot for the millions they were claiming is owed, they would simply bring a motion for summary judgment, and would undoubtedly succeed. According to plaintiffs’ counsel, this was a generous offer, because we could settle and avoid the costs of defending against what would so clearly be a successful motion for summary judgment.
Of course we didn’t settle, and true to their word, plaintiffs brought a motion for summary judgment that they had obviously spent a great deal of time on.
MOTION DENIED. It wasn’t even close. But opposing counsel’s shame went far beyond merely losing face over a motion he had claimed was a slam dunk. In the ruling on the motion, the judge took the plaintiffs to the woodshed over some of their claims, and beautifully articulated the defenses we have maintained all along. Then I received a notice today from a legal website that is posting the ruling and asking for my comments. Opposing counsel will now be humiliated further by the public discussion of his failed motion and chastisement by the court.
Please understand, there is no shame is losing a well fought motion. The shame comes from the posturing. If you go up to bat and point to the center field bleachers, you’d better be able to deliver.
So what was accomplished by all the posturing, and the grandiose “all or nothing” play at the MSC? First the plaintiffs lost a possible opportunity to settle, then they got to spend big money on an unsuccessful motion, the judge was educated and preconditioned as to the defenses in the case, they “showed their hand” in advance of the trial by putting on all the evidence in conjunction with the motion, and plaintiffs’ attorneys were left with egg on their faces. Brilliant strategy.
Don’t be that attorney.
[Update:] I love when this happens. It’s not the first time I have witnessed this phenomenon. Some attorneys think they will be able to keep their clients in the dark with promises of brilliant strategies and guaranteed results. No doubt these attorneys convinced the Plaintiffs that they should not compromise their claims one cent at the settlement conference, because they would simply bring a motion for summary judgment. But the Plaintiffs wised up.
After we defeated the motion for summary judgment, I received a call from my client, stating that he had been contacted by the Plaintiffs directly, and they wanted to talk settlement. He was just checking with me to see if that would be alright. I gave my usual speech about how such conversations come with some risk, because the opposition might later lie about something that was supposedly “admitted” during the phone call, but said that the parties are always free to talk if they so choose.
My client opted to talk to the Plaintiffs, and they agreed to settle for less than it would have cost to take the matter to trial; a tiny percentage of what Plaintiffs’ counsel had insisted on at the settlement conference. I hated to see my client pay the Plaintiffs anything, but he was a bottom-line type of businessman.
I then got a strange call from opposing counsel. Turns out he is one of those attorneys who believes that the parties to an action are not allowed to communicate with one another during litigation. As I have explained many times, it is only the attorney who cannot speak to the opposing party; the parties can (and as this case illustrates, often should) continue to speak during litigation. He claimed that I had brought the parties together as an end run around what clearly would have been a judgment for millions, and that he was going to convince his client to renege on the deal, so the matter could proceed to court. And he threw in that he was going to have me disciplined by the Bar, for encouraging the parties to talk. The settlement went forward and, much to my chagrin, I never heard from the Bar.
So let’s inventory the posturing:
- “Settle for every penny we claim is owed, because there is no doubt we can get the money by way of a Motion for Summary Judgment.”
- “Your Honor, the liability is so clear that it was bad faith for Plaintiffs not to agree to settle, and they should therefore be sanctioned for failing to participate in the settlement conference in good faith.”
- “Here is our Motion for Summary Judgment. Pay the full amount we claim is owed, plus the money we spent on this motion, and at least avoid punitive damages.”
- “Your efforts to orchestrate a settlement by getting the parties to talk will not succeed. Unless you agree to pay the full amount owed, we will instruct our client to renege on the deal, and you will incur all the trial expenses, plus punitive damages.”
- “We are reporting you to the State Bar, and you will be disciplined.”
Not one of opposing counsel’s threats came true. How can I ever take him seriously on future matters?
Here in Southern California, there is a large legal community, and I don’t often come up against the same attorneys. But it does happen, and I am often asked about attorneys. Some attorneys do amazingly in depth research about their opponents, and I receive calls that go something like this:
“I represent a plaintiff in a defamation case, and I see that opposing counsel, Joe Dokes, represented the defendant in one of your cases. What can you tell me about him?”
Before engaging in unrealistic posturing to opposing counsel, picture that call in your mind, and consider what will be said about you.