Litigating in the Arena

Today, in our last substantive post of the year, we remember the trial. For many reasons, there just aren’t as many trials as there used to be as in those days of yore. We often hear the older lawyers in our community tell tales of the old days – prior to the adoption of more formal discovery rules – when litigators litigated and juries rendered verdicts. These days, with the voluminous information yielded by years of discovery, both sides of a case know each others’ strengths and weaknesses such that they can readily evaluate the worth of that case. Coupled with the rise of mandatory mediation, most cases settle before being fought in the courtroom.

Sure, there are many cases that should not go to trial for a variety of reasons, most notably cost and uncertainty. But many that can and should see the courtroom are not tried. We, as lawyers, should not be afraid of trying cases. Nor should we refrain from advising our clients to take their meritorious defenses to trial if the circumstances warrant it. That’s part of our job, too.

Earlier this year, one of the shareholders at our firm defended a difficult case and prevailed after a long, hard-fought trial. Fresh off that victory, he sent the following email to all of our firm’s attorneys:

[W]e do not need to be afraid to try cases to juries. We need to properly evaluate the case for settlement purposes, but if a reasonable settlement cannot be obtained, we need to convince the client to try the case. At mediation, if the plaintiff doesn’t get into an acceptable range for settlement, simply advise the mediator and opposing counsel that we appreciate their attendance at the mediation but we will be delighted to see them at the courthouse for a jury trial. Juries almost always do the right thing. While there certainly have been bad jury verdicts, and occasionally a jury will do something crazy and deliver a runaway verdict, often those cases can be corrected on appeal or settled during the appeal for a much more reasonable amount, and these results are not typical.

As many of you know, I have decried the decline of jury trials over the last few years, and hope we can once again restore the jury trial to our arsenal of defense of civil litigation. There is simply nothing more grand than a jury trial, and no feeling more thrilling than a defense verdict after a hard-fought trial. . . . [W]hile trials are stressful and extremely hard work, the thrill of victory makes it all well worthwhile.

…

And, even if we don’t win, let’s always remember the immortal words of Teddy Roosevelt:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcomings; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

That quotation, of course, comes from Roosevelt’s 1910 “Citizenship in a Republic” speech.

Think about that the next time you’re drafting a case status update letter.