Our Work and the Element of Surprise

It happens in a majority of our cases. Right after a favorable settlement or ruling, we receive a call or an E-mail from an excited lead counsel. At some point after the blow-by-blow description of what happened and the expression of thanks for our help, counsel blurts out “They didn’t see it coming.” In response, I simply smile and nod.

Lawyers make assumptions like everyone else. They see you at the depositions and settlement conferences, they know how long it takes to write quality paper, and they know how many hours are in a day. When they do the math, they realize you don’t have the time to do all that needs to be done. They therefore assume that it won’t get done (or at least get done well), and they breathe a sigh of relief because they are probably in a similar situation.

Our presence, however, changes the equation without the other side knowing until it is too late. We do the work that needs to be done, and we do it completely behind the scenes. We never sign a pleading, we never speak to anyone on the other side, and opposing counsel never knows we’re involved. All they see is the quality paper, signed by lead counsel, and all they can do is wonder how it all got done.

And it just happened again. A solo practitioner (I’ll call her Lauren) was representing an employer in a large wrongful termination case. The plaintiff was demanding hundreds of thousands in settlement in a case Lauren felt wasn’t worth anywhere near that much. The court had denied cross-motions for summary judgment, and the trial date was looming. Lauren also felt that if a judge looked at several aspects of the plaintiff’s damages, he or she would realize they just could not be recovered.

Lauren and I quickly agreed that the best strategy would be to raise these issues in a series of in limine motions. Our office then began drafting what became a set of related motions that tackled all the major weaknesses in the plaintiff’s case. We then prepared the trial brief and drafted the opposition to the plaintiff’s in limine motions, thereby allowing Lauren to prepare witnesses and attend to her other cases. The result: all but one of our motions were granted, thereby knocking out plaintiff’s RICO claim and the vast majority of his damages; and all of the plaintiff’s motions were denied. The case then settled for far less than what our client was willing to pay at the last settlement conference.

The other side had no idea we were involved. They also had no idea they would be served with all those motions, and they had no ability to respond to everything. They certainly had no idea how Lauren managed to draft all that paper. In short, they just didn’t “see it coming.” Now, the motions were meritorious and the result was just. Lauren’s argumentation at the hearing, I am sure, was brilliant. Without our office’s help, however, at least some of the issues in those motions would have been buried in the sound and fury of trial, without a ruling before the entry of the verdict. The result: a settlement before a jury was impaneled, an extremely satisfied Lauren, and an ecstatic client. And it happened in large part because of our work behind the scenes and because of the element of surprise.

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