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Avoiding the Pitfalls of the Litigation Business

Playing games is not a strategy, so why do we persist?

November 14, 2022 Photo

Los Angeles, 1991: The city is much different than what you see today on reality television. It is gritty, covered in a boiling haze, and plastered with graffiti. You can feel grunge bursting through the atmosphere.

Most importantly, a bank-robbing gang of surfers known as the Ex-Presidents is running amok, pulling one brazen job after another. It is an absurd premise for a movie that this author proudly proclaims as a top 10 film. That’s right. The 1991 classic, “Point Break,” stars Keanu Reeves as Special Agent Johnny Utah, an Ohio State quarterback who finds a second career as an FBI agent after a career-ending injury; and the late, great Patrick Swayze as Bodhi, the mystical criminal/surfing guru who pushes Utah to the edge of reason in an ever-increasing crescendo of testosterone and adrenaline.

Following a series of dramatic robberies, shootouts, and car chases, Utah and Bodhi end up on a small plane where Bodhi’s plan is to escape to Mexico with what is left of the stolen loot. Utah’s objective is no longer to arrest Bodhi but to rescue his girlfriend, who Bodhi deviously arranged to be held hostage as his insurance policy. Bodhi jumps out of the plane with the lone parachute and believes he’s outsmarted the very smart and capable Utah. In a frenzied state, Utah stomps around the empty plane, cursing himself about how this ended so badly. Then with nothing more than a gun (and, again, no parachute!), he hurls himself out of the plane in a desperate attempt to catch Bodhi midair.

This scene encapsulates the point of this article: What behaviors drive us to such irrationality in our professional lives? Granted, most of us avoid jumping out of planes without the benefit of parachutes, but how often have games with opposing counsel driven us a little mad? Cue Norman Bates saying, “We all go a little mad sometimes.”

We hear all the time that attorneys, especially litigators and trial attorneys, are burned out; that the rates of depression among us are ever increasing; that surveys about attorney job satisfaction belie the hidden point that we all should have chosen a different way of life. One cannot help but wonder whether or not the games we find ourselves playing with our fellow lawyers, day in and day out, are contributing to these issues.

Games Disguised as Strategy

We think we are an intelligent lot. Lack of ego is not an issue for most attorneys, especially trial attorneys. And that is a good thing, to an extent. It takes confidence, skill, and patience to do what we do. But part of the ego issue (I won’t exactly call it a problem) is not so much about our abilities, but rather our thought process. This is where we diverge from many other professions.

We pride ourselves on being professionals, and part of that is knowing and understanding litigation tactics, including when and how to pursue certain information, what to hold back at a deposition and save for trial, and constantly evaluating (and reevaluating) decisions in terms of moves and countermoves with limitless if/then scenarios. For example, if I do X, they’ll respond with Y. Then I’ll move to Z. Developing and executing strategy and outwitting and outthinking your opponent brings about some of the best feelings and experiences of being an attorney.

But what happens when these strategic choices turn into games designed to frustrate, annoy, and distract opposing counsel? Consider: the late Friday afternoon email dropping some bombshell, the passive/aggressive scheduling and discovery disputes, producing reams of previously requested documents at 8:00 a.m. for a deposition that starts at 9:00, and sending dozens of written discovery requests that bear little connection to the underlying case. These are the more reasonable examples. The nefarious ones include coaching witnesses on how to deliberately obstruct their deposition answers and refusing to settle or resolve claims where liability is more than clear (skirting the line of bad faith). And don’t forget the dreaded Motions for Sanctions. There is nothing quite like explaining to your clients why you haven’t committed any Rule 11 violations despite what the other side might be saying.

Don’t these tactics drive us crazy? And it is not all on plaintiff’s attorneys either. Maybe we do not even realize it when we are doing it, but there is a good chance we engage in these kinds of games as well. Dare I suggest, even some pointless ones.

Speaking Personally

To illustrate these points more acutely, I want to take a personal digression. A few years ago, I defended a case with an excellent lawyer on the other side. I will obfuscate a few details to protect some of the more confidential aspects, but the case started aggressively and stayed that way for the duration.

We met this challenge head-on and engaged full throttle. It’s easy to say now that “opposing counsel started it” (which would be juvenile and not entirely accurate), but the volleys were rapid and constant. Interrogatories, document requests, motion practice, hearings, more document requests, deposition after deposition (the tense kind of depositions, too, where the inevitable traffic jam on your way home is a welcome respite from the mind-numbing questioning you are sitting through), etc.

My opponent was landing body blows, and we were on the ropes. The harder counsel pushed, the more aggressive I became. I fired back—motion after motion on issues I raised, big and small. It all felt fruitless. I privately cursed the judge. I had to report issues lost again and again to the client. I was so enraged at this case that the mere name of it resulted in immediate tachycardia.

Then the tables started to turn. Suddenly I was back at it, and my opponent was scrambling. For months, I watched his case winnowed down one issue at a time. And then, for no apparent reason, things flipped again. It went on like this for years.

We entered the final phase with trial a few months away, and each of us was buried under mounds of motions in limine. Opposing counsel’s position concerned a public record that helped my client’s case and hurt his. He was determined to keep it out. My battle line was drawn over his key expert, who I believed had overreached and whose opinions were exaggerated. At one point, I think I argued 17 motions before the court and traded evidentiary issues like rooks and pawns. It did not stop—more motions, oppositions, replies, and the dreaded surreplies, with each of us demanding to have the last word, increasingly convinced of our positions with every keystroke.

Finally, the ever-patient judge admonished both of us. No, it was worse. It was a public excoriation. We both swallowed hard and took the beating, but nothing changed. In the end, my client and I felt we were gaining strength the nearer we got to trial, proudly waving the matador’s cape as the bull wavered around the ring, injured and weak.

There was finally a break in the storm. Both sides took a breath and surveyed the burned-out landscape that had become our case, and we started to speak to each other like human beings. When we did that, the case was resolved in two days—for more than we wanted to pay and less than they wanted to accept. Sound eerily familiar?

Spoiler Alert

How does it all end? In the movie, after hurtling toward the ground in an adrenaline-fueled free fall, Patrick Swayze’s Bodhi gets away while Keanu Reeves’ Utah writhes on the desert floor, losing his man but saving his girlfriend.

Flash forward a few months, and the movie cuts to a horrific storm in Australia, where Utah finally catches up with Bodhi. Following a brief conversation about how Bodhi left a long path of destruction in his wake (and an obligatory beach/rain fight scene), something strange happens: Bodhi pleads with Utah to let him go so he can essentially die while chasing his dream of riding the ultimate wave. Utah looks at him and knows he’s looking at his reflection. He lets him go, and Bodhi paddles out into impending doom. Utah looks on for a moment, then turns and walks away in the rain as the inevitable wave crushes Bodhi in the distance. He throws his FBI badge into the surf and keeps walking.

Leaving this nostalgic movie magic aside, the scene resonates for our line of work because this is how our professional spiraling ends. You look around, and maybe you won. But you are left tired and exhausted, and the client is probably so frustrated that victory feels hollow, even pyrrhic.

Going forward, it is important to remember that games are not strategy, no matter how much you loathe the lawyers on the other side. You should not engage (willingly) in a litigation spiral, and, if you’re in one, look for a parachute and a way out.

I thought for a long time that the resolution in my case was because I had worn down the other side so dramatically that counsel eventually relinquished, tapping out and yelling, “No mas!” If I think it through more objectively, my opponent probably thought the same about me. Before you leap out of that plane blindly, think for a second (heck, give it a minute). Don’t make these kinds of spiraling case decisions without looking critically at the balance sheet to determine if it is worth it.

This goes for the insurers and the clients as well. We can all allege to stand on our moral high ground, but we don’t get there for free. Breaking the other side doesn’t happen without a significant cost, professionally and personally. 

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About The Authors
Matthew Cianflone

Matthew Cianflone is partner at Flynn Wirkus Young, P.C.  mcianflone@flynnwirkus.com

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