Sometimes at the end of a lawsuit I’ll tell my client, “congratulations, you’ve earned your Masters in litigation!”
Or sometimes, if it’s a long, complicated lawsuit, a Ph.D.
Usually the client is not excited. I don’t understand this. Why aren’t they happy to learn so much about how litigation works?
Oh, yeah. There’s the time, money, and energy they expended to win that knowledge.
But what if you could learn all those lessons, just without the lawsuit part?
That was the inspiration for this blog post. I’m going to tell you the things you need to know about litigation ahead of time. For free.
I narrowed it down to 20.
1. The other side’s case is not “frivolous”
The client almost always thinks the other side’s case is “frivolous,” whatever that means.
“I can’t believe this lawsuit, it’s frivolous!”
“I read the defenses they filed, they’re all frivolous!”
Look, I get it. You think their claims have no merit. And I might think that too.
But that’s not “frivolous.”
Frivolous is the prisoner filing a civil rights lawsuit against the Cook County jail because the cafeteria stopped serving the pepper steak on Thursday night. Frivolous is the soccer mom filing a lawsuit because they forgot the extra pickles on her burger at the drive-thru. Frivolous is filing an “original action” in the U.S. Supreme Court trying to overturn a presidential election.
The case against you? It might not be a good case, but trust me, it’s not frivolous.
Oh, and the famous McDonald’s hot coffee case? Definitely not frivolous. Look it up.
2. The other side will say terrible false things about you, and there’s nothing you can do about it (other than prove they are wrong).
One of the first unpleasant things you’ll experience in a lawsuit, especially if you’re a defendant, is reading a pleading the other side filed with the court saying all kinds of terrible—and false!—things about you.
How can they do this?! Can you sue them for defamation?
Yes, they can and will say horrible untrue things about you in a public record, and no, you cannot sue them for it.
The practical reality is that your opponent in litigation can say anything about you that their lawyer can type up and file with the court. It doesn’t have to be true. If we could all agree on what is true, we wouldn’t need lawsuits.
But why can’t you sue them for saying false things about you?
In Texas, where I practice, there is a strong “judicial privilege” that protects a party from liability for defamation for something the party says in a lawsuit. The exact boundaries of this privilege are up for debate, but most states probably have a similar rule.
This usually strikes clients as unfair, even crazy.
But it’s not. Think about it. If you could sue somebody for defamation based on something they said in a lawsuit, then almost every lawsuit would have a counterclaim for defamation. It would be chaos!
That means the only thing you can really do in response to false allegations against you is to prove them wrong.
Oh if only it were that easy. Trouble is . . .
3. The other side will cheat and play games and get away with it.
Litigation would be hard enough if everyone fought fair. But the other side will not fight fair.
You should assume that the other side will cheat and play games in the lawsuit and get away with it.
Now I don’t necessarily mean cheat in a blatant way (although that, too, can happen). I’m talking little things.
The opposing lawyer will make objections during the deposition that are designed to coach his client, even though he’s not supposed to.
They’ll say “I’m sorry, our CEO is not available for a deposition until October.”
They won’t be able to find any of those emails or text messages your lawyer requested in discovery.
You get the idea.
4. There is usually no quick and easy way to get rid of a lawsuit.
This one is related to the point about “frivolous” lawsuits. If the lawsuit against you is truly frivolous, then there’s a decent chance your lawyer may be able to get the judge to dismiss it quickly.
But that’s rare.
More often, the other side will have a strong claim against you, but it’s hard for you to see that because you’re biased. It’s just human nature.
Or maybe the other side’s case is really weak, but a party with a weak case is still entitled to take discovery. I’m talking about things like requests for production of documents, written discovery requests (like interrogatories and requests for admissions), and depositions.
And the discovery process takes a long time (see no. 11 below).
Once you get through some discovery, your lawyer might be able to file a motion for summary judgment, which asks the court to throw out the other side’s case on legal grounds. But chances are, that motion won’t be granted, even if it has merit.
And that’s because . . .
5. Most judges don’t like to make hard decisions.
When you’re a judge, making tough decisions comes with the territory.
But they still don’t like it. There are probably a lot of reasons for this. Maybe they don’t want to make anybody mad. Maybe they don’t want to take a chance on getting reversed on appeal.
Whatever the reason, judges often look for the easy way out. Sometimes that means just sitting on a motion until the case goes to trial. Other times it means denying a motion for summary judgment that really ought to be granted (a denial of a summary judgment can’t be appealed).
Yes, judges often like to “punt.” So even a weak lawsuit may prove difficult to get rid of.
6. Your case is not that important to the judge.
Another reason the judge may not take your motion as seriously as you want is that the judge doesn’t have time.
For you, the lawsuit is probably a major life event, especially if you’re an individual, or a smaller company. It’s a really big deal to you. But it’s just not that big a deal to the judge.
This is not necessarily a knock on the judge. Keep in mind, the judge has hundreds, maybe even thousands of other pending cases (especially in state court). Even the most conscientious judge won’t be able to give your case all the time and attention you feel it deserves.
And even when you get the judge’s attention, the judge may make the wrong decision. That’s because . . .
7. You cannot count on the judge correctly applying the law.
As a kid I had this image of judges as experts on the law. But that’s just not the reality.
I think there are two main reasons for this.
First, there’s the way judges are selected. In Texas, state court judges are elected. In every state, federal court judges are appointed (for life, generally).
That means judges don’t get to be judges by becoming experts on the law, or even just being good at litigation. For the most part, state court judges get elected because they are good at politics, while federal court judges get appointed because they have political connections.
Now, before I get hate mail from my judge readers, let me hasten to add: we are lucky to have some excellent judges who are quite knowledgeable about the law. In fact, given the flaws in the way we select judges, it’s a wonder we have as many good judges as we do.
But still, considering the way judges get to be judges, you can’t count on them being experts on the law.
The second reason for this is that no one is really an expert on “the law,” generally.
There are just too many different areas of law. No single judge is going to be an expert on all of it. Even the best ones will have many areas of law they know next to nothing about.
The good ones will recognize that, look to the lawyers to educate them on the area of law at issue, and try to apply that area of law fairly.
But again, you shouldn’t count on that.
8. You cannot count on the judge being fair.
Judges are human beings. They are not immune to things like favoritism, politics, sympathy, prejudice, or bias. In some cases, the judge may think the kind of lawsuit you have filed never has any merit, and will look for any excuse to get rid of it.
Luckily, most of the time the judge will not actively try to do everything possible to sink your case. But even when the judge tries hard to be fair, there’s a good chance the decision the judge thinks is fair is not what you think is fair.
9. You cannot count on the jury to get it right.
That’s even more true about juries. By and large, juries know even less, and are even more prone to bias and prejudice, than the average judge.
They won’t get it. They will focus on the wrong things. They will not understand the point your lawyer was making. They will buy the argument opposing counsel made that you know is silly. They will want to get home in time for Dancing With the Stars. In some cases, they just won’t like you.
This isn’t a knock on the ordinary average people who serve on juries. It’s just reality. Human nature.
Above all, the jury will be unpredictable. Submitting your case to the jury is like gambling. Even if you have a good hand, that doesn’t guarantee you’re going to win at the poker table.
10. It will be more expensive than you expect.
And when I say litigation is like gambling, I don’t mean nickel slots. It’s like a high-stakes poker game where the minimum bet is more than your paycheck.
I’m sure you already know litigation is expensive. But it’s probably even worse than you think.
How much will your lawsuit cost? Lawyers hate answering this question. And it’s not so much because we’re afraid of scaring off the client. It’s that there are so many variables, so many factors we cannot control.
I do a lot of non-compete lawsuits, so I can give you a ballpark feel for how much a typical non-compete lawsuit will cost, assuming I’m your lawyer. See my video How Much Does a Typical Non-Compete Lawsuit Cost? Then you can double or triple those numbers if a big law firm is handling your case.
And those numbers are just a rule of thumb. It’s impossible to predict, largely because the vast majority of cases settle, and you don’t know when the case is going to settle.
Lately, when clients ask me to estimate how much a lawsuit will cost, I’ve started to say “it will cost X dollars per month until you settle.”
Ok, so how long will that be?
11. It will take longer than you expect.
The answer is “longer than you expect.” Litigation just takes a long time. If you’re filing a lawsuit, or if a lawsuit has been filed against you, just get used to that.
Again, there are no hard and fast rules, but it’s unlikely your case will go to trial in less than a year. 18-24 months is more likely. It could be even longer than that.
And a trial is not necessarily the end of a lawsuit. Even after a jury verdict, the case is not over. Then you have post-trial motions, which will eventually result in a judgment. And that judgment can get appealed.
How long will it take the court of appeals to make a decision?
That’s always a fun question. Would you believe that there is no deadline for the court of appeals to decide a case? They can take as long as they want.
And they will.
12. It will go slower than you expect.
Not only will the lawsuit take a long time to get resolved, it will move slowly during that time.
It will seem especially slow when you are the client.
For us lawyers, not so much. The thing is, we have other cases going at the same time as yours. Personally, I usually have 15-20 litigation matters pending at any given time. Some lawyers have many more than that.
So, while you’re sitting waiting for something to happen in your lawsuit, I’m probably working on some deadline in another lawsuit. That means the pace doesn’t seem as slow to me.
13. Threats will not get you a good settlement.
I know what you’re thinking. “Listen, Wolfe, I get it, litigation is slow and takes a long time, but my case is different, I’ve got the goods on these guys!”
Yes, clients often think that the threat of making a claim, of “going public,” or “spilling the beans,” will force the other side to settle.
I think a lot of this comes from TV shows and movies. They’ve all seen the one where the company settled because the lawyer had photos of the CEO with his mistress.
Usually, the threat the client wants to make is not so salacious. In my practice, it might be something like “the company will settle because they won’t want people to know how badly they treat their employees!”
The reality is that threatening to do something extrinsic to the merits of the lawsuit almost never applies the kind of pressure to the other side that the client thinks it will. In almost 25 years of practice, I can probably count on one hand the number of times something like this worked.
The boring truth is that getting good evidence to prove my client’s case is usually the thing that helps me get a good settlement.
14. You will ignore your lawyer’s advice about your deposition.
One of the best ways to get evidence to prove your case is by taking a deposition of the other side’s key witnesses, where your lawyer gets to ask them questions under oath.
Of course, the other side is planning to do the same thing to you.
That’s why I tend to spend a lot of time preparing my clients for their depositions. I have a lot of posts about this. Just click on the “Witness Preparation” category if you want to know more.
Most lawyers, even experienced litigators, don’t spend enough time preparing their clients for their depositions. But almost every litigator will give their client some variation on these two pieces of deposition advice:
1. Just answer the question. This is not the time to “tell your story.”
2. Don’t guess or speculate. If you don’t know the answer to a question, just say “I don’t know.”
Both of these points are generally good advice. And you will probably ignore both of them. See Is “Just Answer the Question” Good Deposition Advice?
The problem with these tips? They just cut so hard against the grain of human nature. Whether the client is a plaintiff or defendant, the client will feel like “I have been mistreated.” The client is aggrieved. The client wants to tell his or her side of the story.
And nobody likes to admit they just don’t know the answer to a question.
15. Your case will not go to trial; it will settle.
On the other hand, as many times as I have pleaded with a client “just answer the question” in a deposition, I have to admit there is some merit to putting your cards on the table.
We like to tell our clients the deposition is not the time to tell your story. “Save that for trial,” we say.
The problem with that advice is that the case is not going to go to trial.
I’m over-generalizing, of course. Sometimes the case will go to trial, and you have to be prepared for that.
But the vast majority of cases will settle before going to trial. As a rule of thumb, I’d say maybe 1 case out of 20 goes to trial, and the actual number is probably even less than that.
So when your lawyer talks about the trial, just keep in mind it’s probably never going to happen.
16. You don’t get to say all the bad things the other side has done.
But let’s say your case is one of the few that goes all the way to a trial. Then you’ll have a chance to tell the jury all the bad things the other side did, right?
Don’t count on it. Evidence has to be relevant to the questions that will be submitted to the jury, and chances are, what the judge thinks is relevant is probably narrower than what you think is relevant. Plus, even relevant evidence has to be admissible under the rules of evidence, which are not all intuitive.
Let’s say you’re an employee who was mistreated by your employer. You probably want to talk about all the other employees who were mistreated and agree with you. But that evidence is probably not coming in.
A trial is not Festivus. It’s not a time to “air your grievances.”
17. It’s not a best lawyer contest.
A lawsuit is also not a “best lawyer” contest.
This is one that even us lawyers sometimes struggle to understand. We work so hard to do a good job for our clients. But doing a good job doesn’t necessarily mean winning.
Your lawyer might be way better than the other side’s lawyer. The judge and the jury may like your lawyer better. But that doesn’t mean you’re going to win the lawsuit.
A lawyer can do a lot to increase or decrease your chances of success in a lawsuit, but ultimately it’s the facts that make the biggest difference. And your lawyer can’t really change the facts.
18. The defendant always “just wants the case to go away.”
It’s funny how often I will represent a defendant in a lawsuit and hear the client say “I just want this case to go away.”
Of course you just want it to go away. Nobody wants to get sued. The goal for a defendant is to get rid of the lawsuit as quickly and inexpensively as possible.
But there’s usually no quick and easy way for a defendant to get rid of a lawsuit, as we learned in point no. 4 above.
19. The plaintiff will eventually “just want the case to go away” too.
Unfortunately for the plaintiff, there’s also no quick and easy way to win a lawsuit. It’s usually going to be a long, hard slog.
For this reason, your enthusiasm for suing somebody will probably be at its highest point when your lawyer files the lawsuit.
After that, it will have its ups and downs. It might rise when you get a favorable ruling from the judge, or when your lawyer gets a really good piece of evidence in discovery.
But the overall trend will be downwards.
By the time you get towards the end of the lawsuit you filed, you too will probably “just want it to go away.” And if you’re the plaintiff, you may even feel worse about all the time and expense of the lawsuit, because you chose it.
20. Sometimes filing a lawsuit is still your best option.
Still, sometimes you just have to file a lawsuit. It may be the only way to get what you’re entitled to, despite how long it takes, how much it costs, and how unfair the process can be.
That’s why I have a job.
Zach Wolfe (firstname.lastname@example.org) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (zachwolfelaw.com). Thomson Reuters named him a Texas “Super Lawyer”® for Business Litigation in 2020, 2021, and 2022.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.