July 20, 2012
To paraphrase the templar knight in Indiana Jones and the Last Crusade, you must choose wisely. Many times attorneys put off making decisions because they have suffered paralysis through analysis. As a profession we often suffer from a desire to be perfect. If you don’t make a decision it becomes much more difficult to make a mistake. Under this theory you can justify not doing anything because you might do the wrong thing. That is not choosing wisely.
A good advocate controls this fear by understanding that pretrial practice does not involve making perfect cookie cutter decisions, but rather it consists of coming up with creative and non-formulaic solutions for difficult problems. Eighty percent of the correct solution on the date needed is much more effective than a one hundred percent correct solution long after the deadline has passed. In our profession you can easily snooze and lose. So how do you keep from doing that?
Well I start with the idea that your practical lawyering skills must be combined with your knowledge of the substantive law – what law professors like to call doctrinal. You must be holistic in the real work. Effective civil litigation seamlessly combines skill and law in an artful fashion to accomplish a practical goal. A litigator without sufficient grasp of the substantive law is dangerous; a litigator without the requisite practical skills is useless! My goal is to make you dangerous, not useless. When you learned civil procedure you were introduced to some of the tools you would actually use one day, but you weren’t told how to use them. That is akin to pointing out the spice rack to a brand new cook and expecting them to make a 4 star meal.
Did you learn in civil procedure when you should file a Rule 12 motion to dismiss and when you should instead wait until after some discovery and then pursue a motion for summary judgment? What about which type of discovery device is best used to learn about theories underlying the opponent’s claim? Is there a time when formal mediation is better than informal settlement discussions? If so who should be the first to broach the subject? Knowing how to use the tools of the trade and why you might want to use a particular tool for a specific situation are paramount skills for an effective and efficient pretrial advocate. We will learn them here.