I recently had the chance to discuss a motion hearing with another adjudicator. We were wondering at the timing, and amount of, information provided by the counsel, who was seeking affirmative relief. When you are asking for something, it is important to remember that you bear the burden of demonstrating why your position is appropriate. Attorneys sometimes forget this.
I was reminded of an old joke regarding a man in a flood. As I heard this, the man was out on the porch of his house in a torrential downpour, surrounded by inches of water, and two gentlemen in a pickup truck drove by and offered to rescue him. His response is that the Lord will save him. He later transitions to the roof of the porch as the water rises, and two other gentlemen come by in a boat and offer to rescue him, to which he replies “The Lord will save me, thanks."
Waters rise. He moves up to the roof of the house. And, as the water continues to rise, (the situation becomes more dire) two other gentlemen appear in a helicopter with a rope dangling and offer to pull him off of the roof. He replies “The Lord will save me.“ The erstwhile homeowner soon drowns and finds himself face-to-face with God, and asks “How could you forsake me?“ To which the Lord applies "forsake you? I sent you a truck, a boat, and a helicopter!“
The irony of the story is that opportunity may present itself in ways to which you are not attuned. Louis Pasteur is credited with saying "Chance favors the prepared mind" (repeated by Eric Bogosian's character in Under Seige II, Dark Territory, 1995; with perhaps more emphasis due to the visual presented). As a litigator, you must remain persistently open-minded to the potentials being presented. If you fixate on a singular form of relief, or path to relief, and thereby fail to see the potential in others, you may elude success in the process. That is not the same as striving unsuccessfully, but perhaps more of a snatching defeat from the jaws of victory.
Did you file the motion in expectation of failure? That may sound like sarcasm, but it truly isn’t. There are instances in which an attorney is compelled by a client to follow their instructions and seek relief which is at worst known to be unworkable, untenable, and frankly unachievable. Such a motion may at best be an extreme long shot, the proverbial "hail Mary" pass. Such a motion may not be filed with any rational hope of success. But, it is nevertheless filed because the client sees fit, and the lawyer’s job is to represent a client. Perhaps such a motion is filed in expectation of failure, but a hope of preserving some point in the record for later.
But if you file the motion with the hope of success, be rational in your end-game. Ask for relief that is conceivable. Provide a road map from the situation presented to the relief sought. Provide legal authority to support the outcome that you seek. Draft the motion succinctly and thoroughly. And in the unlikely event of an opportunity (most motions will be decided without a hearing, Rule 60Q6.115(4)) argue the motion with precision, reiterate grounds and path, respond to the opposition's critical points, and remain focused on your goals. Success requires focus on your path and critical listening to both the opposition and the judge.
Remember, however, that your preferred outcome may not be accepted or even appreciated. Unless "agreed to," motion outcomes are unlikely to please or satisfy all parties. There are likely to be those who disagree with outcomes (it may be you, the filer). Any lawyer on any day may find her/himself in that role. It is critical, to persistently listen for verbal cues and suggestions during such a hearing (or even in the "good faith" conversation that precedes the motion filing or argument). Effective attorneys remain open to the potential that their ultimate desire in a situation might be accomplished as easily with a different ruling or outcome than the one specifically sought.
Remember, “chance favors the prepared mind.“ During such a proceeding an adjudicator or opponent may offer a different path. Great lawyers remain receptive to and cognizant of, what is being said throughout the process. Listen. They may not always arrive in the manner they might have preferred, but such attorneys often find a path to arrive precisely where they hoped or intended. Getting there is the point, even if the ultimate path is not the one thought of in advance or preferred. If you remain open in your intellectual consideration, cognizant of the desired end result, and listen persistently, this may benefit the client.
Great litigators remember the advice of Sun Tzu and "build your opponent a golden bridge to retreat across." The efforts of an opponent in this regard may afford a new direction that accomplishes the outcome that is needed, even if not in the manner sought. It is possible to obtain the desired result sometimes, even if the route is more circuitous than planned. Similarly, the judge may suggest alternative paths. That is not to say a litigator is obligated to elect such an alternative, but that a litigator should listen to opponent arguments and to questions from the bench. Listen and consider the alternatives that may present. And, when sensing victory, perhaps you should likewise remember Sun Tzu and allow your opponent to similarly withdraw.
This strategy is reminiscent of the eternal words of twentieth-century philosopher Mick Jagger, who so aptly noted in 1968: “You can’t always get what you want, but if you try sometimes you just might find, you get what you need.“ or, if you prefer, you may obstinately sit on that rooftop and dream of the ultimate rescue in some pre-conceived, preferred manner. Sometimes, that preference may come to pass, and it may be difficult to predict when. There may be times when you can hold out and get exactly what you envision. But, there may be times you gain no progress, having foregone some viable and even acceptable opportunities for progress in that process.
In a contentious process like litigation, lawyers must remember they are (literally in a hearing, figuratively at least though) sitting across from someone who may likewise have drawn lines in the sand, formulated preferences, or planned a particular path. They want their desired outcome as much as you do. It is possible you do not understand or appreciate their desires, likely they don't get yours all the time either. In that litigation/adversary setting, a judge may make decisions that you don’t like, or the opponent doesn’t like, or with which neither one of you is satisfied. As an aside, stipulated outcomes are like settlements in that neither side may be happy with one, but it may beat the potential all-or-nothing outcome that is the alternative.
On those long car rides of my youth, I recall disagreements in the backseat. I vividly recall my mother offering to resolve a few of them. Her kind offer tended to be “If I have to pull this car over neither one of you is going to be happy.“ If that is the posture into which you wish to push the adjudicator, know that you thereby increase the potential that no one (at a minimum "someone," which could be you) is happy with the outcome. There is merit instead in finding a way to get what you need even when you would perhaps prefer to absolutely get what you want and how you want it.
Daughtry intones in Home (2006):
Be careful what you wish for
'Cause you just might get it all
You just might get it all
And then some you don't want
Keep that in mind. You might demand it all your way, take the dispute to the wall, get all you think you want, and more than you intended. The outcome of reaching what you think you want may have consequences and results you do not care for (and never thought of). Think of how to resolve the dispute amicably where you and the opponent build your solution through compromise. Remember Sun Tsu. Remember that success may be in getting what you need instead. And, persistently listen. Listen to the words and to the tone. Listen for solutions and paths. Keep your mind open to achieving success for the client even if that success may not look like what you thought it would when you started down this path. As long as you end up in the place you hoped, the path used may be of little importance.
Litigation is a stressful way to make a living. Conflict contributes to stress. Finding a path to the desired outcome is the key, even if it is not the path one initially desired. If you think about it, that may be just as true in business, personal relationships, and life generally. Strive not to be the stubborn punchline sitting on the roof during the ever-challenging storm.
