::.law + strategy.::.law + governance.::.law + politics.::. ::.you get the jist.::
The short answer: as early as possible.
In fact, if you’re not already thinking strategically, then you should start. Now.
And I don’t just mean in the context of clients and legal practice, though that’s the focus of this post.
The fact is, if you care about how you spend your time, and how you live your life, then the time it takes to formulate a strategic approach will pay off. I’ll talk more about this in future posts.
Litigation and Strategy
In conducting searches on the topic of litigation and strategy, I have come across a number of writings about strategy in the context of trial advocacy and trial preparation.
This is important. Clients will be paying a significant amount of money to go to trial, which means that the lawyer had better plan and strategize appropriately, with an eye to the outcomes that the client most urgently wishes to accomplish.
But really, a lawyer’s strategizing should start at the initial meeting with the client–which is why it surprises me that there isn’t more ink dedicated to the topic.
There are a few reasons for applying a strategic paradigm from day one on any given file or matter:
1. Fewer and fewer cases are going to trial. Settlement is far more standard, as the costs of going to trial become increasingly steep for clients with limited resources. And let’s face it, everyone has limited resources.
2. While there may be some cases that lend themselves to trial, more often than not, some early scrutiny of the nature of the dispute may lead to the conclusion that it would best be settled outside of court. Often as not, the possible solutions that can be formulated in negotiation or mediation will be more responsive and better suited to the strategic outcomes of both litigants, where trial generally results in a zero sum outcome.
3. Litigation can exact a high toll, financially, emotionally, and intellectually, upon the parties to the dispute–and part of the process of working with clients should involve an assessment of whether or not the client has the motivation and the resources (emotional as well as financial) to see things through when the going gets tough. If the client doesn’t have the appetite or constitution for trial, then trial strategy isn’t as important as some kind of a more encompassing “outcome strategy” that simply makes use of the trial outcomes as part of an overall risk assessment and a consideration of what Roger Fry and William Ury call a Best Alternative To a Negotiated Agreement (BATNA) in their bestseller Getting to Yes.
4. The client’s risk tolerance, which is an aspect of the “appetite” issue mentioned at 3, is important to gauge early on and to keep checking in on as the matter progresses. It is worth determining whether the client is one who doesn’t mind subjecting outcomes to the significant uncertainty and zero-sum of trial or is someone who would feel better with an out of court, back-and-forth that will involve compromise, but will provide some measure of control over what points the client will compromise on. Is the client a winner take all type who will only be satisfied with a win/lose situation (obviously with a strong preference for the “win”) or one who is more about control, quid pro quo and something approaching a Pareto optimization?
The question of goals, outcomes, risk tolerance and methodology should therefore be foremost in the mind of the lawyer from the outset, at the very first meeting with the client. The initial consult may disclose the preliminary contours of the dispute, as well as an initial sense of where the hotspots for dispute might be located, and which aspects of the conflict are of lower priority. It is also an opportunity to engage in the first stage of expectation management vis a vis the client–a review of the law, of the kinds of remedies available, of the overall process in litigation, as well as the alternative first steps, where they might lead and finally, if appropriate, a tentative and preliminary assessment of the metrics of the case, based on the limited facts provided by the client.
This is the point at which the lawyer should be starting his or her data gathering–not just of the alleged facts, but also of the client’s expectations, mindset, credibility and the overall metrics of the situation beyond the core set of facts that will be used in support of the claim being made. Those metrics are key in formulating strategy, because they will speak to the priorities of the clients, as well as the equities of the situation–those “not quite relevant to the core case but still on the radar” factors that will sometimes tip a judge or jury’s hand in favour of one side over the other, if the facts are otherwise marginal or ambiguous. All that needs to get factored into a lawyer’s ever-evolving sense of the risks being faced if the case goes to trial–and whether that is a desirable final outcome, or it would make better sense to negotiate something out of court.
Many lawyers I have seen do this, to some extent, often on an unconscious or semi-articulated level. They are making those assessments and getting a sense of the client or potential client at the outset in order to determine what the best approach might be. It seems to me that there is much to be gained in making this process more explicit–in, for instance, taking a moment before walking out to meet the client, to think about the key factors that need to be assessed at the first meeting and to fix them in mind for the meeting to follow. This kind of awareness of an overall strategy is not only to the lawyer’s advantage–it also helps the client obtain a more efficient outcome that is better suited to his or her resources and risk tolerance.
That’s the just first step, of course. Though it’s important to formulate a rough, sketched-in strategy from that early stage, it’s also important to be flexible and to understand that the early meetings with the client, while important, present only a fraction of the picture. First impressions are important (see Malcolm Gladwell’s Blink, which provides a summary of the research on that topic), but the approach that arises out of them will only go so far, if there is no underlying substantial merit in fact and at law, that will back it up. With each subsequent disclosure or revelation, often as not, some other aspect of the overall metrics of the case will reveal itself and the potential outcomes will shift, thus requiring a slight–or sometimes a major–adjustment to the risk assessment and overarching strategy, going forward.