In 1804, Tom Jefferson talked a couple of guys into walking across North America. Lewis and Clark walked about 8,000 miles and pioneered a track that thousands would follow. More on their relevance to litigation later. No, I did not know them personally, but thanks for asking.
The Romans have been accused of the extreme: salting the earth following victory. General Sherman's march to the sea has been cited as an example of destructive, pillaging, and extreme victory. Such tactics may satisfy some present desire but may also haunt you in future conflicts.
A claims professional once exalted himself in a conference presentation for pursuing prevailing party costs against an indigent, homeless workers' compensation claimant; he hoped to recoup about $500 in defense costs. He explained that his client pursued costs on every victory, regardless of any consideration or consequence.
After, I asked him if his client was related to King Pyrrus, and he stared at me vacantly. We do not have to learn from history, but it is less painful than experiencing everything ourselves.
Litigation need not be so extreme, but we have all seen it in a figurative context. More often, these "at all costs" strategies or mentalities are seen in isolated instances, likely as a threat more than an eventuality. They are leveraged as encouragement for the more amenable outcome of capitulation or something closer to it.
Nonetheless, there have been some lawyers over the years who came to have reputations for pyrrhic actions or reactions. I remember one reputation repeated periodically about an attorney who "never met a case he couldn't forfeit." Yes, there are extremes, but most litigation ends with compromise between them.
The litigation process is usually a great narrowing. In the beginning, there are broader potential grievances and defenses. These are pleaded, without benefit of proof, in the quintessential of American due process - notice. The potentials, however remote or unlikely, are put on the table as allegations, and the various parties can then begin the discovery journey in the hope of finding Shangri-La, Mordor, or some other desired destination (real or imagined).
The journey is discovery and motion practice. The journey begins with the best of intentions and preparedness. Like those who undertook the great westward migration along Lewis and Clark's Oregon Trail, many litigants find they have packed (pled) too much. The path from Wayne City, Missouri (petition/response) to Oregon City (trial) invariably becomes littered with detritus from that overload.
The travelers begin with everything they might need (over-disclosure for the sake of due process and notice), but as they travel, there is circumstance, revelation, reality, and realization. Discovery brings it, refines it, and educates the voyagers. The wise begin to see what is what and what is not. Issues and defenses are jettisoned to lighten the load, as are documents and witnesses.
When the traveler reaches Independence Rock, Wyoming (a moment of truth), a time of reckoning approaches. Here, the great plains begin a steeper tone, and the challenges of the trail increase. Any excess burden, weight, and baggage that has been troublesome across the plains may now become an imperative.
The journey to this point has been significant and should never be minimized. The traveler at this stage has crossed over 1,200 miles, well over half the trip. But reality confronts at Independence Rock. The terrain becomes steeper, the way harder; as the young folks say these days, Independence Rock is when "it just got real."
From Independence Rock (6,028 feet ASML), the journey now ascends another 1,000 feet to the continental divide. The ground becomes more challenging, and the terrain more uncertain. These are the Rocky Mountains, the moment of truth before the culmination of the journey. It is a prime time to eject flotsam and jetsam, to lighten the load and focus on what is truly important or imperative.
The traveler is aided in this by the experience of the long journey from Missouri. Much can be learned walking beside a wagon for 1,200 miles. Unfortunately, our minds can also play tricks on us. We may have "sunk cost" affinity for some of the junk in the wagon, and having dragged it this far, we may be reluctant to leave it at the trailside. How do we justify buying that junk to simply abandon it now?
Nonetheless, we pause at Independence Rock, as we do on the verge of the pretrial, and we need to take a candid, introspective, and self-effacing look at the wagon, its contents, and our resolve. The journey enters its home stretch, and there are both risks and benefits still in our kits. What will we ultimately drag into Oregon City, to trial, at the end?
Perhaps you cannot prove a claim or defense. The path (discovery) has not been kind to it. It has not received the attention you initially intended. It has bounced about in the wagon and is scarred, neglected, and worse for wear. Put it on the trailside.
Perhaps there are witnesses who have not made it to Independence Rock with you. Maybe they set out with you, but fell by the wayside. Or you had hopes of coming across them on the trail, catching up to them when you left Missouri, but that did not pan out. Perhaps they simply did not turn out to be what you anticipated once you did meet them. Put the potentials of them and their testimony on the trailside.
This is Independence, a reckoning. The time has come to go through your case. The "Justin" case. There, you have kept various documents, diagrams, maps, and more. There you have your notes, ideas, and inspirations. With it all, you were prepared for the potentials and perils of your journey, regardless of how remote or unlikely. You were prepared and hopeful they would bring you results. Experience in this journey has taught you that many are now irrelevant, redundant, and worthless. Sure, you paid for them (sunk cost), perhaps dearly, but put them by the trailside.
Your ascent to the Divide, the pretrial, should be about lightening your load, narrowing your foci, and concentrating your effort. As you later descend into Oregon City (trial), you will be better for those decisions at Independent Rock as you prepared for the Divide (pretrial).
With sound reflection at Independence, you will perform better at the Divide. You will more likely emerge from the Divide energized and focused on the truly important, rather than exhausted from hauling all the detritus up that hill. And you will be more capable, focused, and effective as a result.
In Independence Rock, facing the Divide, be frank, forthright, and straightforward: with your client, your opponent, and yourself. The journey across the plains was arduous and challenging, but Independence Rock is your moment of truth. Here you must singularly focus, or you may not make the Divide. If you do not make the Divide, the pretrial, your path is some form of capitulation. You cannot reach Oregon City, trial, without passing through the Divide.
Far too often, the Divide is broadly ignored by lawyers. They delegate the packing and preparation to a team of paralegals, associates, and clerks. Many do not even look at the baggage, more or less think about its contents. A stipulation is completed with everything but the kitchen sink, and the blithe, indolent lawyer simply presses up the path obliviously. They have not planned to fail, but have certainly failed to plan.
Having grunted and groaned, strained and stretched, some of those lawyers nonetheless stumble eventually into Oregon City despite themselves. They awaken to find they have much they don't need. They are exhausted from the trip, disappointed in their opponent's perseverance, and remain in a pitched battle. They are disorganized, disoriented, and too often disappointed. They have wasted energy, effort, and time dragging the detritus up and over the Divide.
The view back down the trail is an easier panorama than the uphill perspective that brought them. In retrospect, it is clear that opportunities and advantages were foregone at Independence and the Divide. Regret is inevitable; disappointment is likely.
I recently came across a pretrial stipulation with dozens of defenses. I have seen pre-trials with an equal number of vague claims, often internally contradicting (which is often unavoidable in petitions, but not so much a month before trial). In each example, there was likely some flotsam and jetsam.
If you cannot figure out where Independence Rock is, fear not. We will send you a note, a warning: "Notice of Pretrial Hearing." That is very simply the equivalent of a road sign on the path: "Independence Rock, 5 miles." When you see the sign, start to think. When you think, consider what you really need and want. Define, design, and refine. Prepare yourself for the ascent and "be real" with yourself.
Or, carry all that stuff to Oregon City and dump the whole wagon load in the judge's lap. Let me know how that works out for you.
