1 Why Trust this Guide?

As soon as he met with his attorney about answering the lawsuit that his former business partner had just served on him, Ben realized that he was already in way over his head. Ben’s attorney began describing strategies and options that Ben simply didn’t understand. Ben didn’t know what to ask, what to say, or what to decide, as his attorney rambled on about taking this approach or using that tactic. After nearly an hour of discussing the lawsuit and its defense, Ben was more confused than ever. Ben trusted and valued his attorney, but Ben could see that unless he somehow got up to speed on this whole subject of litigation, Ben wasn’t going to be of much help. And Ben wanted to help because he had everything riding on the litigation’s outcome. Ben left the meeting thinking that he needed a crash course in litigation. But where was he going to get it?

Fright

A lawsuit can be a frightening thing, both for those who pursue one and those whom the lawsuit calls to defend. Initiating a lawsuit is a bold and risky move, demanding that another act as you wish, to your benefit and their sacrifice, and to call upon the state to force them to do so. You may have a just and even compelling cause. You should hope so because to invoke state powers to crush the will and welfare of another for your own benefit should require at least a just and perhaps even compelling cause. Yet to face a lawsuit can be far more burdensome, confronting the real and imminent likelihood of having to relinquish whatever right, relationship, resource, or privilege one enjoys, while also paying to defend the lawsuit. Individuals involved in litigation need to know what’s going on. They need information, clarity, and confidence so that they can do the right thing to maximize their prospects while minimizing their loss.

Interests

Of course, your own attorney is your counsel in litigation. Listen to your attorney. Your attorney has the obligation to keep you informed. Yet your attorney also has work to do, and that work may not always include holding your hand, explaining everything that you might need or want to know about lawsuits and litigation. If you can get up to speed on your own dime and time, all the better both for you and your attorney. You won’t waste your attorney’s time and your money. Your attorney also has interests that do not always align perfectly with your own. You likely want your litigation over, decided in your favor as quickly, clearly, and inexpensively as possible. Your attorney, on the other hand, has fees to earn, which is perfectly reasonable and justified if your attorney is going to be able to afford to help you and others. But that’s one area where your interests differ from your attorney’s interest, over the costs of litigation. And interests may also differ in other areas. 

Guidance

A little seasoned, strategic, and impartial guidance could thus help you navigate and manage your litigation. Get yourself up to speed on lawsuits and litigation, and you just might make a better go of it. See the whole picture of your lawsuit in front of you at the outset, and you may be able to help your attorney better than you otherwise would, for a better outcome. Learn the landscape of litigation, and you may be able to make better decisions in the course of your litigation. Inform yourself here so that you know the options and can choose more wisely among them. Sure, rely on your own attorney’s evaluation of your case. But give yourself the bigger picture of litigation generally, so that you see more clearly where your attorney’s evaluation fits. Let this guide be like having a brother or sister who, although not your lawyer, is nonetheless a lawyer, someone with whom you can speak to understand better why what your lawyer says makes good sense. This guide doesn’t offer you a second opinion. It instead offers you context for your attorney’s opinion.

Insight

To know what you’re doing in litigation takes more than just knowing the law and procedures. Law school can teach you law and its procedures. But experience teaches you the strategies to pursue and the tactics that accomplish them. To succeed in litigation takes more than knowing the law and following the procedures. Litigation success takes strategy and tactics, insightfully pursued. This guide does more than describe the law and procedures of civil litigation. It also describes strategies and tactics, where they’re used, and how they affect outcomes. Litigation doesn’t play out according to a formula. Litigation is inevitably complex, with quickly shifting advantages, disadvantages, obstacles, and levers. What looks like a sure winner becomes a probable loser but then back again, all with the twists and turns of disclosures and developments. Get a sense for the volatility of litigation and how both to manage it and take advantage of it.

Projection

Litigation involves continual projection in a battle of unconscious principles, patterns, and powers. Every claim and defense attempts to invoke those hidden powers to bend the will, mind, and emotions of the opposing party. Litigation is thus routinely mentally and spiritually exhausting, oppressive, even crushing for those who do not discern the hidden forces and are not prepared to avoid them. To succeed, even to survive with your identity, hope, and faith intact, you need to see beyond the surface of things to the deeper powers behind them. You also need to avoid absorbing the other side’s worst projections, which the other side deploys to divide and destroy your confident persona. You need to preserve your conscience and awakened consciousness. You also need to maintain your mental and physical health so that you can continue to draw from a well of energy to project your own clarity and purpose. Litigation is above all a test of wills. Let this guide help equip you to protect, maintain, and exercise your will rather than to succumb to destructive powers.

Experience

I have been a lawyer for nearly forty years, of which the first twenty years I spent as a civil litigator and the next twenty years as a law professor teaching litigation courses. I have tried multi-million dollar business, civil rights, personal-injury, wrongful-death, and insurance and reinsurance cases involving everything from vehicle, airplane, and helicopter crashes to intentional and accidental gunshot cases, medical malpractice, products liability, commercial lease, and police excessive-force cases. I’ve tried cases in both the federal and state courts. I’ve also handled many appeals through the state and federal courts, including Supreme Court appeals. I’ve served on state bar committees and won a state bar award as a lawyer, and made law teaching presentations nationwide and won teaching awards. I’ve also published dozens of law books and scholarly articles, and written hundreds of law blogs for lawyer and lay audiences. Trust me: I have the experience to share seasoned guidance on litigation. 

Roadmap

This guide begins with chapters offering basic guidance about what litigation is, why litigate, and how to avoid or settle litigation. The guide then addresses how to choose and work with an attorney, where and how to initiate litigation, and how to defend litigation. The guide also addresses how to discover evidence in litigation, how to prepare for and conduct trial, and how to pursue and prevail in an appeal. The guide also addresses how to enforce a judgment and the role that insurance plays in litigation. Along the way, you’ll learn about dozens of related topics. Each chapter begins with a brief illustration of the chapter’s topic and ends with questions to help you reflect over the chapter’s topics and a bullet-point summary of those topics. The guide includes example forms in an appendix at the back. The forms are only examples, not necessarily for your use. Requirements vary too widely from state to state and between the state and federal systems to offer exactly what you’d need for your own litigation. 

Use

Use this guide’s table of contents to take you to the topics most relevant to your interests. The chapter titles are in a question style to help you easily determine what chapters you might read first. The chapters have a logical order to them, but it wouldn’t hurt to skip around. Each paragraph has its own one-word subtitle to give you a clue to its subject and help you determine which paragraphs to read and which to skip. The table of contents lists those paragraph subtitles, too, so that you may skip right to the precise point you may most need to read. Don’t waste your time. Get to the point. But at the same time, you may find that reading the whole guide once through can give you the overview that you need. If you press through, you can read the whole guide in about eight hours. Use the guide for an overview. But don’t let it contradict your attorney’s evaluation and advice. Every lawsuit is unique. This guide only draws broad brushstrokes.

Obstacles

Litigation can present substantial obstacles to your success. The bigger challenges generally have to do with the objects of the litigation itself, like forcing a party to pay a substantial money judgment, relinquish a property or interest, stop or alter a practice, or give up substantial rights. It’s no fun, for instance, giving up child custody, handing over money, going through a divorce, losing your professional license, or getting kicked out of your house. The litigation itself presents its own obstacles, beginning with the time and expense it can take, and continuing with the physical drain, embarrassment, invasion of privacy, and mental distress. You’d like to avoid as many of those obstacles as you can and to navigate in better shape the obstacles that you cannot avoid. This guide has those goals, too, to help you get through your lawsuit as best you can. Hang in there. Be wise, be strong, and get informed.

Reflection

What do you see as your biggest potential challenge in your lawsuit? What do you feel is your biggest fear? What is your biggest unknown? What is your greatest strength that may help you through litigation? What is your biggest weakness that may affect you in the course of your litigation? What do you most need to learn about litigation to feel prepared? Do you have confidence in your attorney? Does your attorney explain things to you adequately? Are you respecting your attorney’s time? Do you have any experience with resolving conflict? With negotiating compromise outcomes? With other strategic navigation of complex issues? If so, draw on your own strategic insights in the course of your litigation. 

Key Points

• Litigation can frighten, no matter which side you find yourself on.

• Listen to your lawyer, while recognizing your lawyer’s limited time.

• This guide is context and background for your lawyer’s advice.

• Look beyond the surface of litigation to its deeper issues.

• Trust the experience behind the insights of this guide.

• Follow this guide from the start of litigation to its finish.

• Use the guide’s chapter titles and subheadings to get right to the point.

• Navigate the big and small challenges of litigation with this guide.

  Read Chapter 2.