The opening in Judge Primeaux’s latest blog post on blaming the judge really got my attention:
I am totally comfortable with the fact that one side in nearly every case that I decide is convinced that I am: (a) a raving, total, lunatic; (b) an idiot who lacks common sense; (c) a gullible fool duped by the liars on the other side; (d) an ignoramus about the law; (d) “on the take” from the other side or from sinister, unknown vectors; or (e) any combination or all of the above.
There’s not one revision that makes that a truer statement. And it applies to both clients and their lawyers.
Occasionally, I think a decision was a close call that could have gone either way. The rest of the time, the judge was a lunatic/ idiot/ fool/ ignoramus. Ask me a few weeks or months later and I’ll probably give a different answer. But the natural first reaction is to always blame.
Of course, in jury trials we may say those things about the jury and not the judge, who can’t help that his/her district is composed of fools.
In the instance that Judge Primeaux cited, an apparently procrastinating lawyer unfairly told the client that delays were the judge’s fault:
One example occurred several months ago when a frustrated party called the chancery clerk and complained that she was told that I was refusing to set a case for trial. I pulled the file and found that it was a case for contempt and modification that had been pending several months. Neither lawyer had answered discovery, which was overdue. No one had filed a motion for a trial setting. There was no scheduling order.
What’s the world coming to when a client starts calling the clerk to check out her lawyer’s story? In my day, lawyers didn’t have to worry about clients checking out their excuses.
It’s human nature to blame others for, well, pretty much everything. But as Jimmy Buffett famously sang in Magaritaville, maybe it’s our own damn fault.
Lawyers would do better by shooting straight with their clients. If you are too busy with other matters to get to their case right now, tell them. It’s been my experience that clients are fine with that explanation as long as you tell them when you will get to their case and you actually do it when you said.
That reminds me of another area where many lawyers aren’t straight shooters: explaining why they aren’t taking a case. I can’t tell you how many times I’ve had to tell people that they don’t have a great case because of ‘x’ reason that the lawyer who said they had a million dollar case probably knew but didn’t tell them.
On the issue of blame for a decision, lawyers tend to use reasons (a) – (d). Clients almost always choose the second (d) as the reason: the judge or jury is “on the take” from the other side or from sinister, unknown vectors. Many times, losing clients conclude that their own lawyer was also “on the take.”
By the way, if you ever get a call from a prospective client who says anyone was “on the take“, run. That and ‘you never want to be the client’s third (or more) lawyer in a case’ are about the only two rules of thumb I can give you for client selection that apply in every practice area.
A good rule of thumb for case valuation is that anytime a prospective client says they have a “million dollar case”, they probably have a hurt feelings case with no damages.
It’s taken me a long time to figure this out, but disputes that wind up in litigation are messy. At the end of the day, the judge or jury’s role is more about making the decision that resolves the dispute than making the ‘right’ decision. The losing side is nearly always going to truly believe that the decision was wrong.
That more than anything else is why a settlement–with or without the assistance of a mediator–is a safer resolution for both sides. I heard James Graves say that over 20 years ago in a settlement conference when he was a Hinds County Circuit Court Judge. As an under 30 rookie lawyer, he might as well have told me that the Bulls and Pistons should negotiate the Eastern Conference Championship. It took me a long time to understand and agree with Judge Graves’ statement.
It’s messy. Facts are disputed. The law can often go either way. Both sides are convinced they are right. When we win, we aren’t as smart as we think we are. When we lose, we blame ourselves too much.
It’s a crapshoot. So rather than blaming the decision maker, maybe we should examine whether we did everything we could to resolve the case before the moron(s) had to decide it.
But when it does go the distance and the decision is made, it’s time for the lawyers to follow Bill Belichick’s advice and move on mentally to the next case: