What Makes Your Lawyer A Winner

Anatomy of a lawsuit
Howard Levitt
National Post
Wednesday, June 10, 2009

What separates the skilled from the feeble, the experienced from the novitiate, the overpowering from the impotent? What separates winning from losing? In short, everything.

Skilled lawyers strategize each comma in every letter they write. Any misstep can change the entire complexion of a case and improperly set an opponent's expectations. Expectations, once fixed, cannot easily be reassembled. Here are a few things that factors into each stage of a lawsuit:

These take as many forms as there are lawyers. From elongated dissertations to pithy demands, aggressive attacks to reasonable requests, your demand letter sets the litigations's tone and is almost determinative of when, whether and at what amount a case will settle.

I can identify many lawyers from their demand letters before I read their name. Template documents are a mistake. Each demand letter must be cognizant of its audience. Will an aggressive approach solidify intransigence or weaken resolve? Will a polite request telegraph desperation and harden the employer's self-confidence or result in settlement discussions. To answer this, you must ascertain your adversary's psychology, along with the writer's reputation. A hard-hitting attack from a lawyer who never goes to trial evokes a different reaction than from one who welcomes a fight.

Statements of claim and defence

In the recent past, virtually every statement of claim I have defended has delineated a purported legion of calumny. This is misguided. Not only have Wallace (i. e. bad faith) damages been dramatically reduced in scope but unsubstantiated, horrific allegations will gain the courts' instant disapprobation and deconstruct whatever initial sympathy the employee might otherwise have engendered.

A lawyer had better understand the law and thoroughly develop their theory of the case before pleadings are drafted. Admissions cannot easily be resiled from and too many amendments appear sophomoric or worse.

For example, I recently inherited a stock-option case on the verge of trial. The first lawyer had pleaded the option would have been exercised at the earliest possible date. However, the client's financial advisor told me she would have recommended exercising it two years later than that. Since shares would have to be sold to pay income tax on the option's exercise, as result of the share's rise, selling two years later would result in nearly $1-million more in value. As a result of not thoroughly investigating from the outset, there now are credibility issues and a motion to amend.

Mediation

This is the repose of weak lawyers. Almost all cases settle, but settlement before discovery will never result in a significant victory. Too many lawyers, particularly those who are uncomfortable going to trial, merely replicate their statements of claim or defense into a mediation brief and then count on a friendly mediator to do the slogging. Great business for mediators; less so for clients. Good mediation results flow from admissions obtained at discovery and key witness statements, preparation that is rarely done.

Examination for discovery

Lawyers should conduct such examinations in every case of value. More often than not, skilfully conducted discoveries result in new defences. When you go to trial, your opponent is well-prepared, has invested substantial monies, prepared witnesses and lived and breathed the case for at least a year. On the other hand, most take discoveries lightly and attend with little preparation or aforethought. Your prospect of obtaining admissions is geometrically higher at discovery than at trial.

There is nothing as significant to a client's prospects as the skill with which the discovery was conducted and the client's dexterity in dealing with the opposing lawyer's questions.

Too many lawyers, assuming their case will settle, sleepwalk through it, treating their practice like an assembly line, with clients none the wiser.

Howard Levitt, counsel to Lang Michener LLP, is an employment lawyer who practises in eight provinces and is author of The Law of Dismissal for Human Resources Professionals. He can be reached at hlevitt@langmichener.ca

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