What are You Afraid of? A Primer on Going to Trial.

Trial and error. Trials and tribulations. Trial by ordeal. Trial. If you are a client, there is often terrible anxiety associated with “going to trial.” Lawyers also feel this anxiety. The case is out of their control once it is in the hands of the jury. Who knows what will happen then?

For lawyers in civil practice, much of their effort consists of, in the first instance, attempting to persuade the “other side” of the righteousness of your (their client’s) position. This often takes the form of attempting to persuade an insurance adjuster or adverse party to compensate you in a fair, full, and timely fashion. This, of course, is hard to do since the adjuster is paid by the insurance company to get the matter resolved at the least expense – and is in no particular hurry to do so. Adjusters are not rewarded for paying out the most money they can, even if such payment would be fair. The adverse party, of course, is motivated by the desire to thwart your desires. You are the opposing side. Consider how “tilted” the “playing field” of this negotiation is: you are negotiating with someone who is paid to oppose you and, in many cases, whose career trajectory only improves with the number of claims resolved at the lowest payout possible. No lawyer should feel defeated by the fact that persuasion sometimes falls short in such a context. No attorney can guarantee that the opponent will treat you fairly. As a client, you must, at a minimum, understand that if the settlement is not to your liking, taking the matter to trial is the alternative. While the first choice of settlement ends matters, it may not do so on a satisfactory basis that enables you to feel good about it. Trial, however, is no guarantee that the outcome will be better than an unsatisfactory settlement; an outcome after trial can be better or worse than the settlement you rejected as unsatisfactory.

Still, the decision to”go to trial” for a client is often filled with anxiety, particularly for a client for whom the courtroom is an unfamiliar, if not fearful, place. Many lawyers have worked for years in law school and practice to hone their skills, like a platoon whose members have gone through basic training and war games but still have yet to face battle. Even good lawyers have some anxiety with trial – and this is often true of some of the best, who channel their anxieties into superior case preparation. It would be very strange if such a lawyer – including many fine lawyers with some trial experience – did not feel some anxiety over the prospect of trial. Such anxiety can be a good thing if it focuses one’s efforts on anticipating challenges and preparing thoroughly. There is also the “Imposter Phenomenom” where many lawyers, who throughout schooling founded their own self-esteem and confidence on external criteria of self-worth (accolades, awards, grades, etc.), lack the confidence in their ability to succeed in trial. Will they be found wanting?

What are the things to worry about?

First, trial (unlike mediation, for instance) involves disempowering the parties and placing responsibility for decision-making in a third-party neutral, usually a judge or arbitrator. Fear of powerlessness is certainly a legitimate concern. Suppose the judge or jury is predisposed against your case? Suppose the judge or jury, in whose hands the future of the case rests, is not up to the task? These are legitimate worries. A person with a good case should be concerned that their case is resolved on its merits.

Second, fear of failure figures prominently on the eve of trial. What if you are “blind sided” by issues that you have not anticipated? What if you do poorly, reveal in a humiliating fashion your shortcomings as an attorney, client, truth-teller, or witness, or let down your colleagues, family members, co-workers, friends or clients? There is an expression: “You are only as good as your last trial.” Even successful attorneys fear failure. Sometimes this failure may be perceived as simply getting a disappointing outcome. In my experience, however, it is better to measure success against what was available by way of settlement. Trial does not guarantee perfect justice or even a better result than what was offered in settlement. It simply moves the power to reach an outcome from the parties to the judge or jury.

Third, fear of being judged and being found wanting can also be applied to the merits of the case. Earlier I wrote that you might be afraid that the case would not be decided on its merits. Now, I suggest that there may be reason to fear that it IS decided on its merits. In other words, if the jury learns the complete – I mean absolutely full and complete – truth, perhaps the outcome will not be favorable. One may simply fear that the jury will take the side of the other party. “Losing” means that the jury did not agree with your view of events based upon the evidence admitted; “winning” means that the decision-maker/s agreed with you. Sometimes in our deepest core, we know that the case is not so one-sided as we would have others believe – and which, in the heat of trial or the fog of war, we have ourselves come to believe. The jury has not gone though the prolonged odyssey regarding the case that you, the client, or you, the client’s lawyer, have. The jury is likely to see things at a high level of abstraction, free of emotion born of involvement, investment and interest. They may well view the case as you, yourself, have in fleeting moments of insight or fear. In short, resolving a case on the merits may not please either side completely. As Lincoln said so eloquently in his Second Inaugural: “The prayers of both could not be answered, that of either answered fully.”

Fourth, fear of being left in an untenable financial or legal position. Trials are expensive mostly because they are time-consuming and often involve retention of expert witnesses at significant cost. They also involve a huge lost opportunity cost: the value of time expended that could have been invested moving forward rather than looking backward in an effort to resolve through trial the issues that arose in the past. On top of that, the non-prevailing party is liable for payment of the prevailing parties taxable costs including the cost of filing, service, and the cost of depositions to the extent entered into evidence. Such “taxable” costs are listed in RCW 4.84.010. In some cases where their are “fee-shifting” provisions, a party may be responsible for the reasonable attorneys’ fees of the other side. This can be a particularly bitter responsibility on top of a disappointing outcome and can give rise to a financially significant risk.

Trial should not be the subject of irrational fears. Submitting one’s case for consideration and decision by a jury of one’s peers can be the right choice. It should be made in consultation with counsel after a thorough review of the evidence and the risks and uncertainties of a trial. Evaluating the strengths and weaknesses of your case, your witnesses, your evidence, and yourself is essential. One good rule of thumb is to assume that anything you know or fear will become known about your case will, in fact, come out at trial. It is very, very difficult to control the truth or to try a case on anything less than the whole truth in context. In the end, trial is an option, but is not the only option, as we shall consider shortly.

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