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Last week, I received a call from an old acquaintance of mine who is in the middle of a very contentious business litigation involving a breach of a non-solicit and non-compete against his former employee. He got a bad decision from the trial judge in his case, and was considering switching horses, moving to a different lawyer that was more aggressive, someone that was, in his words, a real *!^, with the rationale being that getting a louder, more cantankerous lawyer would mean better results for him and his company.

Yes; I get these kinds of questions and inquires quite a bit.

To be sure, there are some instances where an attorney is a stranger to the world of litigation, as their practice is almost exclusively devoted to say, corporate work, and are out of their element in court.

On the other hand, and quite candidly, I have no clue where this notion that the nastier and more uncompromising your attorney is, the better the results comes from. Or, to put it differently: the one who argues the loudest wins.

It's just not true. 

In fact, in most, instances, the polar opposite is often true: the most reasonable party (and attorney) wins.

How - and Why - the Most Reasonable Party Nearly Always Wins

Please permit me to explain.

The central question that every case comes down to is a global one - and one that should be defined at the very outset of every single case:

How do you define "winning" based on the relevant facts (and surrounding circumstances) of this particular case?

The more reasonable the client and his/her attorneys are in arriving at a consensus in the proper definition of "winning," the more likely they are to arrive at a concerted strategy to achieve a good result for the client - one that accounts for the time away from the client's business needed to litigate the case, and the cost to the client in terms of legal and other fees expended to pursue and/or resolve the case, and/or realistic expectations for what recovery (if any) can be seen from the other side.

Conversely, if the client and attorney are hyper-focused on fighting every battle regardless of its merit or value to the overall war, they risk, among other things, the following:

  • having their stronger factual and legal arguments diluted, and therefore not given their proper consideration by the court and/or jury;
  • alienating and/or losing credibility before the judge or jury (which can have catastrophic consequences on the ultimate result if the case goes to verdict); and,
  • needlessly extending the duration, and exacerbating dramatically the cost of the litigation.

Case in point: earlier this year, I was brought in to help defend a case where the other side spent over $1 million pursuing a case that ultimately settled for a fraction of their legal fees. And here's the kicker - had the other side listened to the lawyers on our side of the case (I was one of a few), they could have gotten the same result for their client 18 months earlier, before they filed 6 motions (they lost all 6), and before they spent tens of thousands of dollars on depositions.

But I digress.

Does any of that sound like "winning?" 

I didn't think so.

A Final Note

Every year, multiple continuing legal education seminars (which all practicing attorneys are required to take) are dedicated to civility in litigation; appellate and trial judges are often the ones who deliver these seminars and - across the board - they emphasize how they cannot stand litigants who take manifestly unreasonable and discourteous positions before them.

You don't need to take my word for it - here's a picture of a sign posted by a judge in New York County before whom one of my cases is currently pending:

Remember: these are the jurists who are deciding your cases. At the risk of stating the obvious, it would be awfully foolish to ignore their own words.




Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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