(Once Again) Litigating In The Arena

As litigators, we often try cases, and 2015 was no exception. Fewer and fewer cases go to trail these days, so much so that it now goes without saying. But some cases should be tried, and as lawyers, we should not be timid about taking cases to a jury if the facts and clients call for such an approach.

We’ve been thinking about this lately as 2015 draws to a close.

Five years ago this week, we ran a post entitled “Litigating in the Arena,” in which we shared with our readers an email from Howard Boyd, one of the name partners of our firm, Gallivan, White, & Boyd, P.A. As we approach the end of another year, we thought we’d share it again:

[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.”

Let’a all think about that as we prepare for 2016.