In a recently published ACCA booklet concerning litigation preparation, Mark Terman and his partners at Drinker Biddle recommend that civil litigants and their lawyers early on develop an overall attitude and stance regarding each litigation. They suggest there be an objective from the start – “lowest possible cost resolution; set an example; no holds barred, etc.”
When I read those choices I said “really”? I have frequently wondered if a responsible litigator should endorse a “no holds barred” policy regarding commercial conflict resolution. In all but the most egregious cases, I have questioned whether a lawyer should be comfortable effectuating such a policy. However, because the ACCA booklet was written by people I respect, I began to think harder about this issue and the possible consequences of not scorching the earth the client wants burned.
There are, of course, situations where egregious events have occurred, such as embezzlement or fraud. In those cases, a lawyer may not see any merit on the other side. Those are the easy to justify “no holds barred” cases.
From a career perspective, the less black and white cases are more problematic. Commercial disputes tend to have fair arguments on both sides. What is a lawyer to do when a client wants to win such a case at any cost? Assuming less brutal options have been presented and rejected, it makes immediate financial sense to become your client’s nuclear bomb. If you don’t go to extremes for your client’s cause, someone else will.
Causing unjustified harm to the other side in litigation rarely makes long-term career sense. Unless you want to be known as a vicious lawyer, be judicious about how often you fight to the death when a skirmish will do. Being known for having the ability to cause an opposing side great pain is good for your career. Being known for unnecessarily inflicting that pain may be less good.