AMBITION AND WISHFUL THINKING: CONJOINED TWINS IN CIVIL LITIGATION
For many years I’ve mediated thousands of widely varied civil lawsuits. No matter how diverse the subject matter, wrongful death, real estate, employment or contract, many cases have been fueled by an ambition that is often hard to distinguish from wishful thinking. Although ambition is usually displayed by the amount of damages sought by plaintiffs and their attorneys, it also regularly appears in the attitude of defendants and their lawyers and insurance claims personnel for different reasons.
Plaintiffs ambitiously chase “justice” having never experienced the difficulty of winning a civil lawsuit. The most ambitious litigants in this regard are usually the least sophisticated or may have been misled by attorneys who have overstated the value of a case merely to hold onto it. Alternatively, some plaintiffs ambitiously view litigation as a sword for administering retribution upon a defendant. This Old Testament stance usually fails because judges and juries may not regard the defendant in the same negative light as does the plaintiff or they may believe that the plaintiff is also flawed. Many plaintiffs forget that in our civil justice system they have the burden of proof and that in jury trials they must convince all or almost all of the jurors of, 1.) the merits of their case and, 2.) that they also deserve to be compensated as a matter of fairness. Very few plaintiffs clear both hurdles at trial.
The wellspring of a plaintiff’s litigation ambition is often fueled or stoked by their attorney. Some plaintiff attorneys who see a strong case at intake will overvalue it in order to keep it even after the case takes on water as more negative facts become known. This short -sighted strategy eventually backfires and creates sometimes poisonous conflict between attorney and client by the time the case reaches mediation. Lawyers with more integrity but less insight may misjudge the merits of the case, especially the credibility of their client, and may never recover from that error. Others, both attorneys and clients, may simply determine that by God they are overdue for a windfall victory, given the slings and arrows that life has heretofore dealt them in arenas other than a court of law.
Defense lawyers who take a rare plaintiff’s case are particularly susceptible to that case as a game changer phenomenon. After years of toiling for callous but demanding claims professionals, some defense lawyers see their isolated plaintiff’s case as a passport to freedom from miserable servitude. I have had some lawyers bluntly say that they will retire on this one plaintiff’s case. They have visions of life in five star hotels on tropical islands. A more realistic view suggests the film “Castaway.”
Insurance claims personnel can also demonstrate ambition by initially reserving a case at a low value and then stubbornly clinging to it for months or even years in the face of evidence developed in the litigation that makes the initial evaluation wrong. Usually such figures are young, ego driven and have not yet experienced the capricious nature of trial, especially jury trials. For mediators, veteran claims professionals are a relative delight compared to the misguided beliefs of the tyro.
Ultimately, unbridled ambition can thwart any chance at a positive outcome of a litigated case much as unconstrained ambition can create havoc in any undertaking. It is always a good idea for litigants and their attorneys to periodically test their beliefs about their case with an objective figure. Experienced, capable mediators can ably play such a role.
Gregg Bertram M.A., J.D., LL.M. is the President and Founder of Seattle-based Pacific ADR Consulting.