Gregory S. Clayton

Trials: a Failure of Lawyering?

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by Gregory S. Clayton

In a recent mediation, an attorney shared with me the interesting comment that: “Trials are the result of failed lawyering.” While that may overstate the case, it struck me as a pretty wise perspective.

While trials have a sacred place in our constitutional, historical and jurisprudential legacy, for most clients they are expensive and terrifying, with uncertain outcomes. They are a roller coaster with a propensity for ejecting riders from great heights.  

As counsel, we are somewhat inured to the terror of public speaking. We forget what it is like for a client lying sleepless at 3:00 a.m. facing the prospect of being cross-examined in public the next day. If you give most people the choice of: (1) being up in front of a judge and jury for hours answering a lawyer’s questions, or (2) being locked into a dark basement full of snakes, they start asking how big the snakes are.

I have taken a lot of clients through trial. Some have had good outcomes. Not a single one has ever said:  “I hope we can do this again soon.” 

So, how do we help clients resolve serious disputes without the torment, delay, and cost of trial? 

  • We become better listeners, trying to learn what the client values instead of what we, as attorneys, may value. 
  • We become better negotiators, looking for convergent interests, creative solutions, and opportunities for resolution short of the trial process. 
  • We treat mediation seriously, bringing prepared decision makers to the table and working hard to find a path to resolution.

To learn more about Gregory S. Clayton and his Mediation practice click here