I came across this article from the New York Times posted on a bulletin board in Hartford Superior Court. It’s worth reading. Again and again:

“Most clients think they are completely right,” Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently, he continued. “Part of it is judgment and part of it is diplomacy.”  New York Times 08/07/2008

]]> http://aconnecticutlawblog.com/2010/09/settle-settle-settle/feed/ 1 http://aconnecticutlawblog.com/2010/05/mediation-the-need-to-be-heard-2/ http://aconnecticutlawblog.com/2010/05/mediation-the-need-to-be-heard-2/#comments Mon, 10 May 2010 13:26:15 +0000 Ryan McKeen http://aconnecticutlawblog.com/?p=1873 Continue reading →]]> by Ryan McKeen

Learning from the little things.

I’ve been doing a lot of reflecting on litigation and with good reason. Other than a real estate closing, forming a company, or doing an estate plan – it’s most of what I do.

A few weeks back, I was involved in a small dispute between a landlord and tenant. As is often, but not always the case, I was representing a landlord. This just happened to be a security deposit dispute. The plaintiff was pro se.

I tried my darnedest to negotiate a settlement in the case with the plaintiff.

Using my best reasoning skills, I spent a half hour trying to negotiate a fair proposal and avoid a hearing.

The plaintiff heard what I was saying in the hallway that day but it may as well have fallen on deaf ears.

Why?

In the plaintiff’s own words: “I paid my filing fee, I want the judge to hear this.” The plaintiff asserted her right to the fundamental right to be heard.

So we went into court and tried the case.

In practice, I see the need to be heard as one of the fundamental needs/wants/hopes of all parties. When a person feels wronged and he wants to tell someone about it. Ideally, he wants someone to validate his claim, but he’ll often settle for being heard.

From what I’ve observed, to most clients, it doesn’t matter who hears the case. It doesn’t matter the title of the person sitting at the head of the table. The person could be a judge, magistrate, JTR, housing specialist, family relations officer, an ATR or a private trained mediator.

Most of the time the only thing that matters is that the person listens and is neutral. That’s one of the reasons why I think mediations tend to resolve cases.

Back to my pro se plaintiff.

We got a ruling from the magistrate in the case and it turns out that my offer was slightly ($23) more generous than what the magistrate ordered in the plaintiff’s favor.

I haven’t spoken with the plaintiff since we left court that day but I’m willing to bet the plaintiff would tell me that the $23 that it cost her to have the hearing was money well spent.

I’ve written before that this blog is a product of things that I bump into. I constantly read law journals, the CT Law Tribune, various ABA magazines, and of course law blogs. Legal education doesn’t end with law school – it just gets less expensive.

Right now Abe Lincoln is hot. Abe is more ubiquitous than “injured-get” lawyer commercials. We’ve got Barack O’Lincoln in the White House and holiday honoring old Abe this month.

Honest Abe

This month the ABA Journal focuses on Lincoln and the practice of law. It’s a darned good issue.

I was reading an article yesterday and this quote jumped off the page at me:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. -Abraham Lincoln, Esq.

The goal of the lawyer must be to solve his clients problems. Sometimes there is no choice but to fight until the last pleading and any litigator must be prepared to do just that. However, a litigator should always have his eye on a solution.

You don’t have to read Above The Law (though if you’re an attorney you probably should) to know that the private bar in this country is not immune from this depression.

It’s worth remembering that for the lawyer who acts peacemaker “there will still be business enough.”

Learning from the little things.

I’ve been doing a lot of reflecting on litigation and with good reason. Other than a real estate closing, forming a company, or doing an estate plan – it’s most of what I do.

A few weeks back, I was involved in a small dispute between a landlord and tenant. As is often, but not always the case, I was representing a landlord. This just happened to be a security deposit dispute. The plaintiff was pro se.

I tried my darnedest to negotiate a settlement in the case with the plaintiff.

Using my best reasoning skills, I spent a half hour trying to negotiate a fair proposal and avoid a hearing.

The plaintiff heard what I was saying in the hallway that day but it may as well have fallen on deaf ears.

Why?

In the plaintiff’s own words: “I paid my filing fee, I want the judge to hear this.” The plaintiff asserted her right to the fundamental right to be heard.

So we went into court and tried the case.

In practice, I see the need to be heard as one of the fundamental needs/wants/hopes of all parties. When a person feels wronged and he wants to tell someone about it. Ideally, he wants someone to validate his claim, but he’ll often settle for being heard.

From what I’ve observed, to most clients, it doesn’t matter who hears the case. It doesn’t matter the title of the person sitting at the head of the table. The person could be a judge, magistrate, JTR, housing specialist, family relations officer, an ATR or a private trained mediator.

Most of the time the only thing that matters is that the person listens and is neutral. That’s one of the reasons why I think mediations tend to resolve cases.

Back to my pro se plaintiff.

We got a ruling from the magistrate in the case and it turns out that my offer was slightly ($23) more generous than what the magistrate ordered in the plaintiff’s favor.

I haven’t spoken with the plaintiff since we left court that day but I’m willing to bet the plaintiff would tell me that the $23 that it cost her to have the hearing was money well spent.