Who’s Afraid of Trying the Case?

Family law clients sometimes ask if I’m afraid to try their cases. Many people are afraid of public speaking, and when they see hesitation in their lawyer, they worry that their lawyer is also afraid.  Let me assure you, litigators are not afraid of public speaking.  We could have chosen to draft wills for a living; you know, those guys make a lot of money.  Being a litigator is rough.  We are always beholden to the court and its calendar.  We are constantly juggling deadlines because we have no control over the actions of the opposing side.  We do this because we love it. 

For litigators, a trial is an opportunity to use and further hone their skills (it is, after all, called the practice of law).  We get to be clever.  We get to argue.  It’s interesting for us.  We spend a lot of time preparing.  Surprisingly, in family court, preparation is inversely related to the length of the trial.  When your time is limited by the court, your evidence must unfold like clockwork. Trial prep and trials are time consuming and therefore expensive for clients.  As family lawyers, we make more money when cases fail to settle before trial. 

I can assure you that if we go to trial, I will present the best possible case I can on your behalf.  The problem is that I cannot assure you that the judge will see things your way.  You could lose, and by that, I mean that you could do much worse than the offer that’s on the table.  But hey, it’s just a family law case, right? —no big deal?  People get divorced all the time, right?  The only thing at stake is . . . your whole life’s savings. . . and custody of your kids.  

Every good lawyer knows that trials involve risk—risk for the client.  My retired partner Jack Long once joked with me, “I’ve never lost a case. . . but many of my clients have.”  A good lawyer, a lawyer who’s got your back, is a little afraid of trial—or at least she should be—because you have a lot at stake.   You need to listen when your lawyer tells you the risks of trying the case in light of the settlement offer.  The hesitation you are seeing is not fear of the courtroom.  It is concern for you, given that you have so much at stake.  Before rejecting the opposing side’s last and best offer and going to trial, you and your lawyer should first do a risks/rewards analysis, so that you understand the decision you are making.

When I was a young lawyer, I asked a successful senior litigator when he stopped feeling nervous before trial.  He looked so smooth to me.  He surprised me and said, “Never.  When you stop being nervous, it’s time to retire.”  If your lawyer is not a little hesitant about a trial, here is my advice:  Run. Screaming.  Your lawyer is perhaps young and naïve, out to lunch, in it for the money, afraid to seem afraid. . . or maybe he just needs to retire.