Robbins: The dumbest person in the room?
It’s hard to say what’s average when it comes to litigation. As in life generally, some things simply take longer than others. Some cases fly as straight as an arrow while others are more like a pachinko ball rebounding through an infuriating maze.
I have often said to clients that, despite the complexity of the specific matter in dispute and the precise thing at stake, there are four things to consider in determining whether capturing the flag of their particular battle will be a bloodless skirmish or the horror of their own personal Gettysburg: the mindset of each party, and that of the lawyers on each side. If one of the aforesaid is a mule (or a less kind name for the same) or whose lodestar is retribution, things can become quickly mired.
One need look no further than the current headlines involving a certain orange-tinged former president to see how tactics of obfuscation and delay can affect the swift administration of justice. While there are deadlines built into every case before the court, they generally are mutable, often for convenience but almost always for cause. Some cases drag on seemingly forever.
But for purposes of this column, let’s invent an average. Let’s say that the average case takes 18 months from the date a suit is filed until it blossoms before a judge (or perhaps a jury) for resolution at trial in a courtroom. Often, the foregoing may be an ambitious fast track. Many times — especially when an applicable statute of limitations has barely begun to run — even taking the first step toward litigation — filing the lawsuit itself — may not take place for months or even years after the case first walks through the lawyer’s door.
What all this means is that the lawyers have sat with the case for longer than it takes for a child to go from birth to toddling and, sometimes, for as long as from birth to preschool. During that long stretch, if the attorney is worth his salt, it is more likely than not that he has not placed the case in hibernation. Instead, he has learned the facts, cogitated, mused, considered and generally “lived” with the case until he knows every wrinkle of it, almost like a second skin.
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Of course, the parties know it even better. It is their case, their lives, and their battle.
Take the instance of a divorce with children following a 20-year marriage. The parties have been living, loving, fretting, and arguing about the matter for perhaps half their lives. It is as intimate to them as their own corpuscles.
Recently, I was in mediation in a divorce proceeding. The mediator was an experienced attorney who has been in practice for more than 40 years. At some point during the mediation, he suddenly offered, “You know, the judge is the dumbest person in the room.”
I paused. OK?
Then Jim went on, addressing himself to my client. “You should make every effort to resolve this matter now. You know every detail of this — it’s your life. You have been living this for years. You know what’s important to you and what isn’t so important. You know what you need. Your husband knows it every bit as well. He has been living it too.”
He looked her in the eye. “Your attorney and his attorney know it second best. They have been living with this case for months or years. They have learned the details. But,” he took a breath, “if and when you walk into that courtroom, the judge will know very little about this case. He certainly won’t know your values or what is dear to you. All he or she will know is what the lawyers place before him or her. He or she will be the dumbest person in the room. He or she, of everyone involved, will know the least.”
He leaned back in his swivel chair. “Is that who you want to decide this matter for you?”
Now to be clear, Jim was disparaging neither the intellect, earnestness, nor impartiality of judges, generally nor anyone in particular. Having been in practice nearly as long as Jim, he and I have both learned to appreciate the tough job of judging and the openness and commitment of most judges. No. Instead, he was stating the obvious; the parties had lived with their case for much of their lives, the lawyers had learned it like a final exam, and the judge would, by necessity, have blinders on.
What Jim said was reminiscent of something that had happened years before.
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I was at a permanent orders hearing, the equivalent in a divorce case as a trial. Suddenly, the judge interrupted the proceedings, declared a short recess, and asked both lawyers to please join him in his chambers.
There, he peeled off his robe, sat heavily, and looked us both in the eye.
“Why,” he asked us, “do these people want me to decide this for them? These are the most important — the most precious — things in their lives. I want you to both go back out there and talk to your clients. Go out in the hall and do your best. See if they can’t come to their own agreement. If not …” he said and hung his head.
The dumbest person in the room?
I think not.
A lot of wisdom in that old, gray head.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
