For starters, consider mediation.
I remember as a young litigator at Cabaniss Johnston, partner Bill Robinson introduced me to the First Rule of Holes — which is, “When you’re in a hole, quit digging.” He was teaching me that when you have a losing position or case, you shouldn’t make it worse by doubling down. Sometimes, you need to change what you’re doing and cut your losses.
Experience has since taught me that there is a second Rule of Holes. Namely, “When you stop digging, you’re still in a hole.”
Years ago, I mediated an airplane renovation case. The parties were disputing the quality and timeliness of the work performed. At issue was the contracted renovation budge of $800,000. That’s a lot of money by most standards. But by the time the dispute reached mediation, each side had accumulated more than a million dollars in attorneys’ fees. Each side’s in-house counsel had gone “all in” to win the case — which meant that both sides had violated the First Rule of Holes. The mediation was unsuccessful. Neither was willing to compromise, and both were left in holes of their own making.
Ever find yourself in a hole?
Mediation is a great solution when we find ourselves violating the Rule of Holes. As lawyers, we don’t always get to pick our clients, cases or arguments. In other words, we don’t always get winners.
A lot of my readers, and friends, make a living defending “bad” cases — with tough facts, bad conduct and high liability exposure. When you’re a great defense litigator, it practically comes with the territory. After all, the worse a client’s case is, the more they need the best possible lawyer defending them. And unlike plaintiff’s lawyers, firms serving corporate clients don’t have the luxury of regularly turning-down bad cases.
That said, it’s not unheard-of for even the most successful plaintiff’s attorneys to file “bad” cases — with tough facts, limited liability or low chances of recovery.
The worst part about “bad” cases is, you often don’t know how bad they are until you’re deep into discovery. For those cases, where you really don’t want juries deciding just how bad they are, mediation is a great solution.
As we all know, risk is what makes mediation succeed. Risk of a bad result is what all litigators and clients seek to avoid, and mediation is an excellent tool to help value and resolve bad cases — whether you represent the plaintiff or the defendant.
So, the next time you find yourself in a hole, don’t keep digging. And don’t lose heart. Get realistic, cut your losses, and find a way out of the hole through mediation.
And even then, try to remember: Ours is a noble profession. So enjoy the journey.
