Effective Litigation Management: Fighting Fire With Water

Effective Litigation Management: Fighting Fire With Water

By Steven Joseph

(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not, in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)

It seem like, with every year, a new “theme” pops into my head with respect to litigation management. 

Last year, it was getting inside the “red zone.” The good teams usually score once they get there, and bad teams fumble the ball away. So, of course, we want to figure out how we get there, and what is the play calling to get us a score once we get inside the red zone.

 This year, my thing is “fighting fire with water.” I noticed that attorneys like to say that “we will fight fire with fire.” For years, I always liked that saying. I like to cook so it reminded me of the saying that "if it gets too hot, you get out of the kitchen." One side has their gladiator, and we have our own superstar gladiator. Who doesn't like a good fight?

However, I have reached a point in my career that I have realized that fighting fire may not put out a fire. I thought I would investigate this theory further. I went to my local fire station, and I asked the fireman what kind of high impact explosives do they use to fight fires, or if they use gasoline, whether regular unleaded okay, or do they need to use premium. I also want to know how long the matches were that they used. 

The fireman looked at me like I was a bit crazy. He told me that they fight fire with water. Wow. I learn something new every day. Who would have figured out something like that!!

It started to make sense that lawyers and those people who manage litigation should think about their cases in the exact same way.

Think about your entire career, and steps you may have taken which can be considered "fighting fire with fire." Were you successful? What did it look like? Did you become consumed with your own fire? Did it create more fire?

Now, think again of anything you have done as a lawyer that has more of a feel of "fighting fire with water." What did that look like? Were you successful in putting out the fire?

Chance are that you have been more successful putting out the fire with water than you have been using fire. Water speaks directly to the fire. Sometimes, if you fight fire with fire, what happens if that you are so busy creating your own fire, you are not even paying attention to the other fire. The end result is that you have two cooks in a very hot kitchen, and by the way, nobody is getting out and the food is burning.

"Fighting fire with water" can also be felt with another concept I like to talk about. Lawyers should not argue. Arguments does not give you power. It ends up taking away your power.

"Wait a second!", you might say. "I went to law school because I always loved a good argument. Argument is like water to me. If I do not argue, I will shrivel up and die!"

The reason that arguments take away your power is because 99% of the time, the argument was already anticipated and factored in with the opposing side's response. You are not presenting any new information. Thus, you will not get anyone to change their position.

Now, when I say that you should not argue, I am not saying that you should not argue. However, it is presented in a factual way. When I have X facts, the result will always be Y. Do you feel the difference? This is presented as a statement of fact. You can argue with me, and after five seconds, I only hear a biased viewpoint. It is your opinion, and I have my own opinion. In other words, because I have my opinion, I do not really care about what your opinion is.

This brings in another concept I talk much about. It is always important to examine a problem from both a "micro" and "macro" level. The "micro" approach focuses solely on the facts involved in the case. The "macro" approach looks at the entire universe of a client's experience, your own experience, and anything else in the universe that gets tied in with the situation you are in.

Here, you get away from opinion and argument, and the position is much stronger. We have these particular facts in this case. These facts are similar to other situations or cases I have handled. When I get these facts, the results have been X or Y. I am not making an argument. I am explaining my universe, or the universe of the case.

In other words, you have presented to me a fire. I am showing you my water. I am not arguing with you that water puts out fire. It just happens that water puts out fire.

On the other hand, two people arguing their respective opinions is "fighting fire with fire." It does not put out the fire.

Another example of water as a tool for a lawyer is the concept of common sense. When I practiced, I would always like to tell a jury that this is my favorite case to try. It is not because of fancy experts or sexy issues, but it is because I can rely on the common sense of a jury. When ever I can rely on the common sense of a jury, juries always do the right thing.

Common sense is always powerful water.

Now, imagine if I told a jury this:

"Ladies and Gentlemen. This is my favorite case to try because it is based on a technicality. It is so technical, I do not understand it. It makes no sense. It is very confusing and very complicated. It is in Chinese. Not only is it in Chinese, but it is in Chinese braille, but even a blind person from China could not figure it out. And whenever, I talk such nonsense, juries always do the right thing."

Now, if you have this situation, not only are you trying to fight fire with fire, but you are busy rubbing those sticks together, and the jurors are looking at you, thinking "how long is this guy going to try to start that fire? Obviously, he never was a boy scout."

So, with every argument we make, every position we present, every piece of evidence we can show, every case precedent we can rely upon - can we think of this as our “water.” Does it extinguish the fire? Does it speak to the fire? 

 Always think about the mental exercise of using the water to put out the fire.