People often ask me what it’s like to be a commercial litigator. My elevator-pitch answer usually goes something like this: Opposing counsel’s job is to exploit every mistake you make, discredit you in front of your client, discredit your client in front of you, discredit both you and your client in front of the judge, and make it as difficult as possible for you to uncover the truth. The judge’s job is to give both attorneys and their respective clients the hardest time possible with the ultimate objective of encouraging them to resolve their problems on their own. And your clients are stressed, unhappy, paying you way more than they want to (and in some cases, way more than they can afford), and stuck in a process that is best described as “hurry up and wait”.
But that elevator pitch is a mouthful that requires some elaboration. We have more time that a few storeys. So let’s break this down.
1: Opposing counsel
Commercial litigation is fundamentally and essentially adversarial. The reality is that opposing counsel doesn’t score points by being nice, transparent, and collaborative. The goal of litigation is to win. With some attorneys, it’s a pursuit that sometimes comes at the expense of intellectual honesty. But intellectual dishonesty aside, it remains true that the goal of litigation is to crush the opposite party. And there are three ways of doing this: Crush the party, crush the lawyer, or (most common) a combination of both. It’s true that litigation is between parties represented by counsel, and not between counsel. But there is no better way to beat a party into submission than by making them lose faith in their attorney. And that is what opposing counsel is going to try to do. (Side-note: There is also the subtler version of this warfare which consists of making the lawyer lose faith in his client. which is why it is so important to pick your clients carefully. But this is a subject for another entry).
So that’s the reality attorneys face day in and day out. Every time you write an email to opposing counsel, every time you talk to them on the phone, every time you run into them randomly at an event, you have to operate on the basis that anything you say or write can and will be used against your client. And with every one of those emails from opposing counsel that begins with “as discussed”, you know, as sure as sugar, that the rest of the letter is going to be filled with self-serving inaccuracies that were not “as discussed”.
With each and every proceeding or motion you draft, you know that opposing counsel’s job is to jump on every inconsistency, however minor. In practice, there is no inconsistency too minor, no mistake too innocent. It’s a cruel game of chess where success means pouncing on the mistakes of your adversary. Opposing counsel’s sole purpose in their professional life is to exploit your mistakes, errors in law, inadvertent omissions or admissions that will be used against your client. It’s why lawyers always weigh their words, hedge their assertions, and cover their tushies at all times. A lawyer’s inability to give a straight answer is not an accident. It’s professional conditioning.
Opposing counsel is not there to be nice, transparent or collaborative. And if they are giving the impression of being nice, transparent and collaborative, it is for one reason and one reason only: To impress and convince the judge. Which brings us to our next subject.
2: The judge
Judges, at least in Quebec, must have at least 10 years practice as an attorney. They are therefore former attorneys. But they are former attorneys empowered with the legislative obligation to judge. To judge you. To judge opposing counsel. To judge your respective clients. But beyond judging, judges spend each and every waking minute of their professional lives navigating the seas of attorneys whose sole purpose is to present their position and their position only. This results in a situation where opposing counsel is no more open and transparent with the judge than they are with you. Judges are constantly trying to uncover the truth from the respective positions as presented by attorneys who don’t necessarily disclose whole truths, give full disclosures or entirely accurate answers. (Another side-note: I know some of you are probably thinking that I too must be of this ilk. But I am lucky – or cursed – to be plagued with the perpetual fear of being thought of as a liar. This has kept me neurotically honest and transparent. And this has at times lead to some arguments between me and my clients. But like I tell my kids, there is nothing more important than being trusted. It takes one act of dishonesty to become un-trustable. And it is difficult, if not impossible, to transition back from un-trustable to trustable).
Judges are often impatient, and rightfully so. Their job is to judge. And in order to judge, they need to test. They need to test the lawyer’s integrity, and that of their clients and witnesses. They need to test their honesty and transparency. And they tend to treat all lawyers as though they are lawyers of the scoundrel kind. Innocent mistakes can be perceived as deliberately misleading. Not having the most recent jurisprudence on a given subject can be construed as trying to hide the current state of the law from the judge. Not being able to answer a specific question quickly, and with certainty, can be construed as an attempt to conceal. This is what weighs on the soul and psyche of every lawyer as they prepare for even the most modest of trials or hearings.
And at the end of the day, whenever you find yourself in front of a judge, it’s a crap shoot. Not in the sense of random, arbitrary injustice. In the sense that a judge never sees the file for the months and years of grueling torture that it represents for the parties. And nor should they. They get the file, they read the words on the paper, the assess the “proven facts”, the law, and they see things as they see things. They don’t care about the history of animosity between the parties. They despise questions of principle. They see the file through their human judicial eyes. And they may or may not see things the way you see them. Justice is, after all, human.
3: Your clients
And then there are your clients. This alone can (and will likely be) the subject of its own post. Its own book, perhaps. Clients run the spectrum, from the innocent, to the guilty, to the vindictive, to the impoverished, to the spoiled, to the pathological. But one thing is for sure: Exceptions aside, they don’t like being involved in litigation. They don’t like wasting $250+ an hour on “professional services” (and I was a bargain). The reality is that the litigation process can drive otherwise good people to do really bad and stupid things.
An attorney whom I know well and respect once told me that your client is your worst enemy. And there is some truth to this, even if it is overly cynical. One day your clients love you. The next day they hate you. One day you can do no wrong. The next day you have never done anything right. It costs them to lose. And it costs them to win. Clients will never tell you the whole story. Not necessarily out of malice, just out of psychological convenience. What is important to you as an attorney may be an inconsequential detail to your client. And often times, they won’t readily offer up prejudicial information. You sometimes learn the most prejudicial information the hard way – from the opposite party.
For the most part, your clients are entangled in a litigation web that they don’t like, don’t want to be involved in, and/or can’t get out of. And the rare clients who love the process and don’t mind wasting the money are often times the most dangerous. One day they are fighting with the opposing party. But with that mindset, they will almost certainly one day be fighting with you. And everything I wrote about dealing with opposing counsel is equally true when dealing with these types of clients. I was lucky to be able to avoid these types of clients through a very stringent client-selection process. And although it may have cost me business in the short term, avoiding that type of distress and conflict is priceless.
So this, in a nutshell, is what the practice of commercial consists of. I have no doubt that some people love it. I know many people who thrive at it. And I know some exceptions who have carried on their practices differently. But I have also known people who just could not stand it. People who have been utterly crushed and burnt out by the process. I was fortunate enough to have excelled at it without succumbing to the darkest temptations in a race to the bottom. I was also fortunate to understand when I had reached my limits. A decade. 10 years. 10 long years of this. Every day. All day. Growing up, my dad always told me that every day was a fight. I now know how right he was.