As insolvency litigators, most of our litigation is in bankruptcy court, where juries are extraordinarily rare. In fact, my first jury trial came more than 25 years into my career as a lawyer. It was a two-week jury trial in state court in Dallas for an important client. But this was a case that never should have gone to trial.
It was largely a breach of an asset purchase agreement (which oddly did not have a jury waiver). My client sold a business unit and was seeking payment of an earn-out from the purchaser months after closing. The parties had no prior relationship. There should have been no emotion. We tried to settle so many times, and we felt our opposing counsel might be the obstacle. We thought that if we could get the two clients in a room together, there might be an opportunity for resolution. But when we did, no resolution could be found. Instead, with both of our clients present, my opposing counsel told us he would win the case. “So you’re guaranteeing a victory?” I asked, incredulous. “100%,” he said. At that moment, I knew this case would go to trial.
It is one thing to show confidence in litigation. Confidence does undoubtedly support a stronger negotiating posture. But to guarantee an outcome for your client is not only bad strategy; it is irresponsible. There simply are no guarantees in litigation – even when you’re right. Indeed, being right does not guarantee an outcome at all. In most cases, both sides think they’re right. This is why most disputes end up in litigation in the first place. But whether the plaintiff or the defendant thinks they’re right or both do is irrelevant. What matters is what the judge or jury thinks. Sometimes they get it right and sometimes they get it wrong, and often they find a solution that lies somewhere in the middle. In our case, the jury got it right. They ruled in our favor on every substantive count. My opposing counsel, it turns out, was 100% wrong.
We lawyers are often called counselors for a reason. We give counsel. If you want to give your client good counsel, do not guarantee an outcome. Good counsel is honest counsel. We identify risks, we evaluate them, we quantify them when we can, and we strive to mitigate them where possible. Most importantly, we communicate those risks to our clients; this helps our clients make informed decisions. It is not our job to tell our clients what they want to hear. Our job is to be honest with them, even when they are wrong. But even when they are right, we must remember there are no guarantees in litigation.