Beware Not to Misanalyze

Beware that you are not the attorney or party who misanalyzes the strength of your case.  You might be aggressive and conclude that victory is at hand because you are determined to win rather than actually being right.

  1. You might conclude this because of all the information that you now know assures your victory but there is needed discovery to understand the problem from the opponent’s perspective. What is the other side saying?
  2. You might read a crucial contract provision, deed restriction, or e-mail from your perspective. Read it slower to see any ambiguities or other possibilities.
  3. You might give greater weight to the evidence that goes your way than to opposite evidence that doesn’t.  Be careful of weight given to evidence.
  4. You have looked at this case so long, you cannot see it from the perspective of either the judge or jury because they only see a fraction of what you see. How would eyes that see this for the first time see it?
  5. You might think that you have a statute or case that concludes the matter.  There may be another statute from a different perspective.  Many times cases are not completely “on point.”

Even if your case is very strong, it still might be worth settling:

  1. You want money and a judgment for money is not the same as money.
  2. You might really want something other than what the judge can give you and a settlement will get what a judge can’t give you—e.g. peace or a creative solution.
  3. The cost in time and money needed to win the lawsuit might exceed the value of the victory to you.

Just because you think you will win doesn’t mean that you should always pursue trial.


Preparation for Mediation

When preparing for mediation, be sure to itemize your items of damage.  Even assuming that the law is on your side, you still need to prove damages.  Come prepared to discuss the items of damage, how they are calculated and any needed proof of causation.  In an accounting, the numbers should be prepared in advance so that the parties can discuss them intelligently during the mediation.  The brief should itemize these damages. Sometimes, parties are not prepared and the mediation will rarely be successful until the numbers are disclosed with backup information.  The defense is usually adroit at seeing the weakness in the damage calculation.  If you want your mediation to be successful, come prepared for a discussion of damage items, their calculation and the causation for them.