Mobile Bar Association President Pete Mackey’s June Comments

“Winning isn’t everything; it’s the only thing.” – UCLA coach RED SANDERS

VINCE LOMBARDI did not coin the phrase, but he said it with a gusto we could all buy into. We all want to win. Conventional wisdom teaches that a lawyer winning is being on the high side of the trial, the negotiation, whatever. Winning is number one. But is there only one definition for “winning”? And if there is more than one, who decides what it is?

As I write this column, I feel like I am sitting in the back seat of a roller coaster. I started out early this morning at the BATTLE OF THE BAY – the canoe race fundraiser for the VOLUNTEER

Mobile Bar Association President Pete Mackey

Mobile Bar Association President Pete Mackey

LAWYERS PROGRAM. Though I was the weakest oar on my four person relay team (old age exacts its price), it was fun, invigorating and for a great cause.

My next stop was a wake for a friend and neighbor taken from this world well before her time. Our whole street has been in mourning since she died last weekend, as have all who were in her circle of influence. When I got home, I spoke by phone with a client whose case was set for trial Monday until we settled it Thursday afternoon. More on that in a minute.

Later today, we will head downtown for the wedding of another neighbor. the departed, the betrothed, and I live only seven houses apart. Circle. Of. Life. This day, as well as the week leading up to it, has conjured up a flood of conflicting emotions. Back to my client.

When my co-counsel and I sat down to discuss our settlement posture and form our battle plan, they suggested a settlement figure.* I thought they were being conservative and started looking at the case as one to try. The facts, in my view, were solidly on our side. The case had been ably defended by a longtime friend and adversary, but there was only so much he had to work with. I recognize that claiming to predict with accuracy what a jury will do is a fool’s game. But … we were feeling much more windshield than bug. We were going to win!

As the days toward trial came and went, and counter-offers followed offers, I became bolder. I was more and more convinced that we needed to let the defendants pay the price by facing a jury. Two days before we settled, the light bulb Finally came on … I had not considered that maybe my way was not the best way. Perhaps the lawyers I was working with were right. They had listened to our client – I had not.

Had I done so, I would have seen where we were through their eyes and those of our client. This would be the fourth trial, and ninth lawsuit (starting in 2007) – including a bankruptcy. I would have had to agree that yes, this litigation had gone on a long time. I probably would have even offered myself that the defendants’ bankruptcy filing, though failed, was a real blow to our client’s momentum. Even with my trial hat on, I realized that had we prevailed at this trial, we were still looking at another bankruptcy or other litigation and, if not, a collection effort four states away.

Our client owned a family business started by his dad and he is the type of person any lawyer wants to represent. Nine years of litigation, however, had taken their toll on him, his opponents and the lawyers. Everyone except me – I had only been involved for two years. I wanted a win! That is what a lawyer is supposed to deliver, right? It is if the case is tried, but not every case should be tried. My last few conversations with our client confirmed that.

Finally, we got an offer within in an inch of our goal. I conveyed it to my client as one more step. His response was cold water in my face. “Settle it however you think is best,” he responded. He was at the hospital. His father had been in a bad accident and they were taking him to surgery. An hour later he let me know that his dad did not make it. He did not even ask about the settlement … it didn’t matter … I finally, really, heard him. Circle. Of. Life.

Letting a jury decide the outcome is not the number one choice of every client. In fact, I would bet that most clients feel that way. Most are simply too risk averse . Some want to know for sure what they are getting. Some simply want closure. It is our job to respect their choice and to counsel them such that they can make an informed decision. Counseling is hard. It requires checking one’s ego at the door. It means understanding that the right answer is what the informed client really wants, not the lawyer. Winning is relative. If a year down the road a client comes back to you to handle something else, you have two winners.

* Our client reviewed this column gave me permission to publish it.

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