Gambler, Soothsayer, Counselor, Warrior
What is a lawyer?
In Kenny Rogers' immortal words, you've got to know when to hold 'em and when to fold 'em. Lawyers live the gambler's reality every day - and not just when they roll the dice on a big contingency fee case. It is remarkable how much like gambling the practice of litigation is, as a few recent experiences really brought home to me.
You've got to know when to fold 'em. Being right is no guarantee. The truth will not protect you. Because it isn't just about the truth - but the proof. And with a half-dozen credible witnesses against you, and no one to stand by you, it matters to no one but God whether you are telling the truth. It may be time to find a way to pack it up and move on, to minimize the damage. Don't pray to the Court - the courts of man know no God - just fold 'em before you lose your shirt. The lawyer must know when to walk away from the table, no matter how deep they are in the hole.
But you've also got to know when to look 'em in the eye and re-raise, even when they make a big bet against you. As I recently had cause to say to someone -
You've got a pocket pair, and they're aces, but if you're looking for me to promise you that you're going to win, there's no way I can do it. You haven't even seen the river yet. That doesn't mean you fold. You've got a great hand - play it! You may get cracked, but when you've got a hand to play you can't let them buy the pot with what may very well be a bluff.
Humankind cannot know the future, but a lawyer has to try. And has to do it after only a few words conversation with a perfect stranger. As Dickens said
every human creature is constituted to be that profound secret and mystery to every other. The lawyer must attempt the superhuman feats of the soothsayer.
When a stranger walks into my office - and every client was a stranger once - you have to feel deep within you what this person is all about. They may tell a good tale, they may win an Oscar for their acting, they may look to have a significant case, and sometimes you've got to say
no thanks because you feel it in your gut that something's not right.
Or maybe they walk in with nothing but a suspicion, a speculation, a guess that they've been done wrong. Maybe they set off all kinds of traditional alarm bells that say
stay away from this one. Maybe they have a long and uneven litigation history. You take the client anyway, because you just feel it. (My biggest settlement to date had its origins in an initial interview like this.)
And at trial this process repeats with every single juror: after only the slightest few questions in voir dire, you must choose whether to put your client's livelihood in their hands.
Sometimes a client will start to get emotional, and feel compelled to apologize for it. I say
don't apologize, this is what I'm here for. There is a reason they call a lawyer a counselor at law. And it isn't just to listen to the client. It is necessary to understand the client's psychic state to know how to serve the client's true best interests.
This is particularly true in a field - like employment law - where emotions run so high. Like family law and divorce, losing a job can be one of the great traumas of life. Add into the calculation mental or psychological disabilities in ADA, Rehab Act, or FMLA cases, and it can make for quite a potent mix.
Sometimes the gambler has to take a back seat to the counselor: the right gamble may be to play the hand, but the right decision for the client is to settle.
And sometimes the counselor is needed to help the gambler survive. No matter how wronged the client may feel, the counselor is the one who helps the client find a way to do what is in their best interest, and let go.
What more is there to say? This is what everyone imagines the lawyer to be - at least if you judge by lawyer's TV ads.
And it is often true. When the cards are all down on the table, when you've read the tea leaves, when you've confronted the internal conflict... you go to war. It may mean shouting down repeated and improper speaking objections, it may mean deposing the company president armed with a long and embarrassing list of his
inconsistencies, or filing a motion for well-deserved sanctions, or a devastating cross-motion for summary judgment. A jury trial is like a war from start to finish, with a host of complex tactical difficulties worthy of Sun Tzu, and sometimes the only way to win is to see it to the end and achieve a decisive victory on the field of battle. This is often the most satisfying part of the job.
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