At the first sign of trouble, inexperienced attorneys tend to seek out more experienced colleagues for advice. Seeking another opinion is good; blindly relying on another’s advice is bad. With that in mind, learn how to make your own decisions in cases, but seek out help when necessary and then tweak your strategy (rather than abandoning it) based on feedback from other attorneys.
It is Your Job to Make Tough Decisions
If you cannot make difficult decisions, you should not be a lawyer.
Your job is to gather facts, analyze them, determine options, and make a choice or recommendation. It’s ultimately up to the client to choose an option, but your input is usually the guiding force. That’s why we get paid the big bucks. You should have an ability to determine which option is better, given all the circumstances. Even if the choice comes down to 50.1% one way, and 49.9% the other way, you need to make a call.
Lawyers are unique (and sometimes vilified) for being ruthlessly objective. Spoiler alert: that’s why most good attorneys are good attorneys. Emotions certainly come into play, but the best attorneys can scrape away all the muck, junk, and distractions and zero in on the bare situation to make a judgment call. Lawyering on 100% emotion will either turn you into a crazy psycho or burn you out before year two. And just to be clear: emotions and other soft variables absolutely come into play in making decisions, but they cannot be the only factor.
If you are not comfortable doing that type of analysis, or putting your neck on the line, then get out now. Some clients can do the analysis on their own, and make the right decision on their own. Most clients will make the right decision, but only after you guide them to it. Some clients will scratch, claw, and downright run away from making the right decision. You cannot force them to make a decision, but you certainly have a duty to make sure they understand the options, the ramifications, and what you are recommending.
It’s usually not easy, and it’s frequently very stressful. It’s also called being a lawyer. So get used to it.
Nobody Knows Your Case Like You Do
You know more about your case than anybody else. Hopefully. You know the facts, the players, and the rules of the game. All of the variables have an impact on strategy. The best and brightest attorneys will tell you that when you ask for advice. Frankly, if they don’t, be careful about listening to anyone that doesn’t want to know every little detail. Even then, you will still leave out something important.
So when you start bouncing a problem off of someone else, they might come up with a complete different strategy than what you were thinking. Even worse, they might even tell you that you are flat out wrong in your thinking. Worst yet, you might blindly follow their lead just because you are unsure of your decision.
That could lead to disaster.
Maybe you forgot to tell them a key piece of information about the case or your client. Maybe you did not tell them the judicial assignment. Maybe you accidentally gave them faulty information about the case. And maybe, and quite likely, they have a different approach to cases than you do.
One of two things will likely happen. One, you don’t give them enough information and they provide a potentially erroneous approach to the issue. Two, they tell you what they would do, not what you should do, but what they did once. With a different case. And different facts. And different law.
Both options can lead you down the wrong path. So before you do anything, think it through, and get some proof the “new” path to success will actually lead there.
The Proof is in the Pudding
If you are really convinced to follow someone else’s lead, get proof it works. Ask for their briefing, the opposing brief, and the court’s decision. The person providing guidance might say something like “oh, well, I’ve never actually briefed it.” That doesn’t mean it’s a bad option, but it means it is an untested one.
If they have the briefings, go over them with a magnifying glass. First, make sure they actually won. Second, make sure they won for the reasons they told you. In other words, maybe they won on a procedural technicality, instead of the merits. Third, do your own litmus test of the court’s temperature for the issue. Maybe they won, but the dicta reads “do not ever bring up this issue again in my court.”
Last, and certainly not least, compare and contrast the facts. Maybe your case involves one incident of a company doing something bad, but the case involved fifteen incidents. Maybe that is a critical distinction. Maybe not. But you better consider that and make sure that court’s decision states the number of incidents is irrelevant.
Or flip the scenario. Maybe they lost on an issue you want to pursue. But your facts are stronger, and you can read into the dicta enough to feel comfortable taking another stab at the issue.
Either way, make sure you do your due diligence. Lawyers love to tell war stories, and those stories tend to take on a life of their own as time passes.
Incorporate Their Advice into Your Strategy
Blind reliance is bad; listening to your peers is good. When another attorney tells you your pants are on fire, heed the warning, but don’t take off your pants.
In all likelihood, the other attorney has never dealt with the same exact scenario (because every case is different). But they probably have dealt with a similar scenario. So take their scenario, what they learned, what they suggest, and adapt your strategy based on that.
At a bare minimum, you should take another hard look at your case, and make sure you feel comfortable with your course of action. Maybe you don’t want to follow the other attorney’s direct course of action, but you do need to alter your approach to the case. For example, maybe your trusted colleague thinks you should draft and serve a Rule 11 motion, but you don’t feel confident doing that. So take another approach: send the old strongly worded letter. Better yet, pick up the phone and tell opposing counsel they have a major problem. That can actually lead to quicker and even better results.
Or maybe your colleague thinks your case/claim/argument is on shaky ground and they think you should dismiss the case. However, you just can’t walk away. So instead of plowing ahead with guns blazing, maybe you narrow your claim or focus on the stronger issue(s).
That is an incredibly important distinction. As a young attorney, it can be easy to think the options are your approach or their approach. There is a third option: tweaking your approach based on outside input. In other words, you keep your hands on the steering wheel, but tilt to the left or right. That’s much safer than letting the person in the backseat grab the wheel.
Full disclaimer: I have asked, bugged, and pestered plenty of attorneys for their advice in cases. I still do. And I would not have made it this far without all of them. Thank you to every attorney who has been willing to listen and provide their two cents.
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