Sidebar. Learn to Say No

• Author: Kenneth P. Nolan
• Position: The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, Rye Brook, New York, and is the author of A Streetwise Guide to Litigation (ABA 2013)
• Pages: 62-63

LITIGATION 62

KENNETH P. NOL AN

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, Rye Brook, New York,

and is the author of A Streetwise Guide to Litigation (ABA 2013).

Sidebar

I once had a perfect case, or so I t hought.

My client was honest, hard-working, a

good family g uy. You might have heard

of the type—a lmost extinct these days.

Liability was obv ious, with witness es,

photographs, and a comprehensive police

report detailing ad missions of negligence

by the despised defendant. My client’s

injuries were sig nificant and verifiable,

with enough plates and screws to bui ld

another Verraza no Bridge. So when the

insurer suggested me diation, I immedi

-

ately agreed. That night , while all snug in

my bed, visions of dollar sign s danced in

my head. Even my wife noticed: “What ’s

wrong? Why are you so happy?”

After decades of litigat ing such mat-

ters, I could recite the script by hear t—the

mediator will beg and scold; we’ll a ll roll

our eyes and emote like some washed-up

Hollywood hypocr ite. We’ll storm out,

slam the door, come back, sigh a million

times, and relucta ntly settle with hand-

shakes and pats on the back al l around.

My lone fear was that we’d have to return

a second time to squeeze a few more nick-

els from the insurer. It was all pla nned.

I know that negotiation is t heater, all

lawyers merely players, each w ith a part

and lines. So when the mediator d isclosed

the initial of fer, I sat stunned, dumb-

founded. The defendant, it appeared, had

a different script with a d ifferent ending.

My dream of savoring Pigeon de Bresse at

Le Bristol in the Eighth A rrondissement

vanished. Now I won’t be able to afford

a french fry, never mind a thr ee-star

Michelin restaurant.

I asked the mediator, a good friend,

what was I missing. Noth ing, she assured

me. They just value it much lower. There

was debate about venue , comparative

fault, and excellent recovery from sur gery,

but nothing surprisi ng. I wiped my eyes

and stormed back to our off ice to prepare

for trial, a few months away.

They’re just playing games, I bel ieved.

Once trial looms, t hey’ll meet my number

and cave. The call came; a h igher amount

was mentioned but not what I expected.

We selected a jury. Court officers, clerks,

even judges—who knew my clients—re-

peatedly warned of the pa rsimonious na-

ture of the noble citizens of Staten Isla nd.

We opened, the judge knocked heads to-

gether, and we settled. Ha rd work it was.

And I never made it to Paris.

Trial work is infant ry, tramping

through the mud, wet and cold, batt ling

for every inch. What I thought would be a

stroll in the Tui leries Garden turned into

a slog up the hill during a snowma geddon.

But everyone who has practiced knows

that litigation is a const ant migra ine.

There’s disputed facts, uncertai n law. You

can’t ignore the mercur ial judge and un-

predictable ju rors. And clients often won-

derful and most ly wrong. It’s a ride on the

Cyclone with twist s and dips, horrifying

screams, and a sudden stop at the end.

I knew all thi s, of course. But just once,

just one time, couldn’t I have an eas y one?

Where the defendant agreed w ith my as-

sessment and quickly mailed t he check?

I’m not asking for world peace or any-

thing—just a single ca se without the angst,

the angui sh. Is that too much to ask?

I always knew there was no f ree lunch.

No one, I was taught, was mag nanimous

without a nefarious motive. Thi s perverse

upbringing was ideal for a t rial lawyer,

but it made ordinary life somewhat ch al-

lenging. So how do those who didn’t have

the benefit of being raise d on the distort-

ed, paranoid sidewalks of Brookly n sur-

vive as litigators? When ever y moment is

combat, how do you maintain persp ective

and the ability to laug h?

Ask questions. You can’t leap build-

ings in a single bound. Too many you ng

lawyers believe that if t hey admit uncer-

tainty, or mention that the deadl ine can’t

be met because of seven other assign-

ments, it’s weakness. I always t hought I

was dumb, so I always requested cla rifica-

tion, and more than once. Don’t be a fraid

to knock on the part ner’s door and con

-

fess that you have no idea what he wants.

LEARN TO SAY NO