by Brian Mahany
We live in a society where most folks wish to avoid confrontation. Lawyers, however, are paid to stand up for their clients when confrontation simply can’t be avoided. Unfortunately, we often hear that many lawyers are not much better than their clients at standing up to bullies.
The average American forms much of their opinion of lawyers from television. Unlike the popular stereotype, however, most lawyers have very little trial experience.
Transactional lawyers are typically hired for their experience and negotiation skills. These lawyers are the best bet for most real estate, corporate, estate planning and tax matters. Sometimes, however, disputes can’t be negotiated and the matter heads to court.
At that point, most businesses and people seek a litigation lawyer, someone who has excellent advocacy skills. Unfortunately, many litigation lawyers are nothing more than keyboard cowards.
This post will likely generate some complaints and quite a lot of denials from the trial bar, but its true.
Before I defend my position, a definition is in order. A keyboard coward is one who hides behind their computer keyboard or telephone. They will rant, rave, demand, threaten and can appear pretty spectacular to the untrained eye. Sometimes those tactics work but often; there is little substance to back them up.
Let’s use an example. Time after time, we see television commercials for personal injury lawyers. Those ads might tout one or two successful trial results but they don’t say that 99% of their cases are settled. Ask an insurance representative or judge, however, and they will tell you which lawyers are quick to settle and which are willing to fight.
Our stock in trade is experience. But our most precious commodity is time. If I have 100 active cases, it is impossible to try everyone or even most of them. My business model becomes one of volume. Process them through cookie cutter style and settle a quickly as possible. Unfortunately, the client (who only has one case) suffers because the lawyer is too busy for a trial or to even properly prepare for a trial.
Ironically, those most ready to fight receive the best settlements. If opposing counsel knows you are likely to settle or ill prepared for trial, the settlement value of your case goes down.
We often see lawyers who do a great job on motions to dismiss and what I call “legal maneuvering.” If those efforts fail, however, they will almost always settle on the courthouse steps.
Businesses and most of our clients wish to avoid trial. We understand that and agree. There are quite a number of uncertainties in any trial. The best way to avoid a trial, however, is to have a lawyer ready, willing and able to go to trial. Think about it, if the other side is knows you are ready to take a case to trial then they are more likely to be reasonable in negotiations.
I am not aware of any studies on the percentage of keyboard cowards in our profession. But as I said, just ask a judge or experienced litigator. Most will agree with my assessment.
The trial lawyers at Mahany & Ertl have experience trying cases. From high profile celebrity trials to every day business disputes, we pride ourselves on being business savvy and courtroom ready.
For more information on what we do, contact attorney Brian Mahany. Our practice is limited to tax and fraud matters. Included in our fraud litigation practice are estate frauds, US Tax Court litigation, white-collar criminal, stockbroker fraud, lender liability, bogus 419-plan litigation, abusive tax shelters and real estate frauds. If you lost your hard earned money, give us a call.
Mahany & Ertl – America’s Tax and Fraud Lawyers. Offices in Milwaukee, Detroit, Portland (ME), Minneapolis and coming soon, San Francisco. Services available in many jurisdictions.