In trying to explain the reality of a lawsuit to clients, I often wonder whether I have chosen the right language. Lawyers are often rightly criticized for using more words than necessary or for speaking in a language that is neither informative nor natural.
In developing the idea about what is involved when an injured person makes a claim against the party causing the dispute, lawyers sometimes forget that what is natural to them, a part of their daily activity, is new, and sometimes scary to someone who needs legal counsel and help.
Going to court is serious business. It is a room with rules, controlled by a judge who has the responsibility to make sure that the law is followed and that the lawyers for both sides play by those rules. Although a lawyer recognizes the position of his client will not get presented to the judge and jury without opposition, it is sometimes difficult for the client to realize that the other side will be offering their own interpretation of the facts and the law.
Court is truly a place for “hardball” in terms of both sides presenting their understanding of the facts and the law in order to obtain a favorable ruling from the court or verdict from the jury.
Both sides have their own idea of what the issues are, what is true, and what is provable. With a lot of investigation and legal work, their understanding of the facts leads to decisions on what has to be done to prove their point of view and where the flaws and gaps are in the other side’s position.
We know that the defense will seek to develop the issues they feel can give them a chance to defeat our client’s claim. That knowledge is based on experience, investigation, research, meeting with witnesses, and a lot of hard thought as to what the other side will probably do to try to defeat our client’s “truth”.
The concept of court being “hardball” was our way to alert would be clients to the seriousness of what goes on in the courtroom.
In our discussions about using the concept of “hardball”, we were concerned that it might raise a fear factor in anyone who would really rather not go to court, but would want his or her claim settled, without the anxiety or need to do battle in a courtroom. “Going to court is hardball” recognizes that a client needs someone who is ready, willing and able to take the matter to court. We have learned over the years and through many trials and approaches to trials, that the best way to avoid a trial is to be fully prepared for one.
Once the other side recognizes that there will be a clear, forceful and informed presentation of our client’s story, there is a far better chance that the case can be resolved properly, without the need to do battle.
To avoid battle, the other side has to know that you are quite able and willing to do battle and that, no matter what the resources of the defendant, once we are in the courtroom, the playing field is leveled. Preparation and experience will give the opportunity to win and the defense the reason to decide that this is a battle they might want to avoid.
Hardball starts in the preparation and the trip leading up to the courtroom. If it is done right, there is a greater likelihood that the other side will see the wisdom in dealing fairly with an injured person. That recognition is built upon the knowledge that it is preparation that wins both the settlement and the trial.
“Going to court is hardball” simply recognizes that hardball has to be played from the very beginning of investigation and preparation in order to increase the chance of settlement, if possible, and a win at trial, if necessary.
It is a concept that recognizes that while most people simply want their disputes resolved fairly, if the other side does not agree, they will have to deal with the legal consequences of the level playing field of the courtroom.
“Going to court is hardball” does not mean there will be a battle. It does mean that the other side may want to choose the alternative of resolving the dispute rather than letting a jury do it for them. That is the lesson we have learned over so many years.
It takes a while for the other side to know that you will be prepared and will be more than ready to go to court. We have been here and doing it since 1929.