The Consciousness of the Litigator

Introduction

INTRODUCTION This book examines the moral consciousness of the litigator , the quintessential modern lawyer. The primary skill of the litigator is the fundamental skill of all lawyers, making legal arguments, and the litigator’s work extends to every corner of society. The term litigator identi‹es a type of lawyer. The term is descriptive and shorthand. It suggests certain occupational tendencies, but, at the margins, the work from one litigator to the next varies in particulars and emphases. The main task of the litigator is to provide legal representation to parties in lawsuits ‹led in the courts, but the litigator also provides other legal services. He assists clients in resolving or attempting to resolve disputes outside of the format of lawsuits. He represents parties in arbitration, mediation, and other specialized extrajudicial proceedings. He argues cases before appellate courts on appeal from trial—an activity that occurs within the framework of a lawsuit but that is not a routine part of the litigator’s work. He appears in administrative and legislative hearings. He works to resolve con›icts informally . He also maneuvers through the obstacle course of government and corporate bureaucracies to obtain information for a client. He occasionally drafts and negotiates agreements—work that typically lies in the province of those generally known as business lawyers—and often provides substantive advice in one or another specialized area of law. He ‹nds himself now and then working in some never-never land far removed from ‹ling a motion to dismiss or taking a deposition. Still, the main job of the litigator is representing clients in lawsuits. The litigator’s work lies almost entirely within civil, as opposed to criminal, law. It occasionally involves criminal issues, but criminal defense work is different and likely calls for a specialist in that area. The litigator may represent either side in a lawsuit —the plaintiff or the defendant. The litigator represents any party to civil litigation, including individuals, sole proprietorships, partnerships, corporations, nonpro ‹t organizations, quasi-governmental agencies, and government departments and agencies. The litigator is a generalist with respect to subject matter and types of legal claims. He takes pride in his ability to handle any subject matter that comes through the door in the form of a lawsuit, whether a labor and employment dispute, consumer law matter, antitrust issue, professional malpractice, or intellectual property dispute, to name only a few beyond bread-and-butter contract and tort matters. As a practical matter, not every litigator does work in every subject area, and some end up specializing in a single area. Those lawyers whose work is predominantly or exclusively in specialized kinds of litigation are litigators, but their professional identities likely re›ect those specialties—for example, environmental litigator or intellectual property litigator. The main job encompasses representing parties at trial, and over a career most litigators do “go to trial.” In practice, though, few litigators are true trial lawyers. Most could only say fairly that they have done trial work. For multiple and complex reasons, most civil lawsuits The Consciousness of the Litigator 2
never reach trial, and the bulk of the litigator’s work lies outside of trial, mostly in the pretrial stages of a lawsuit. Pretrial work does involve “going to court” in the form of appearing before judges to argue motions and to manage the progress of cases. The litigator is a specialist in civil procedure. A lawsuit proceeds according to rules. The rules that govern how a lawsuit proceeds, including especially the pretrial stages, are the rules of civil procedure. The federal court system and the state court systems all have their own formal set of rules of civil procedure. Every court has its own practice rules, too, governing every question from deadlines to the width of margins for papers ‹led with the court to the color of the ink required for an attorney’s signature. All cases proceed from the ‹ling of the complaint toward ‹nal judgment. Most cases never reach ‹nal judgment—along the way the judge may dismiss them, for example, or the parties may agree to settle the case. Once a party ‹les a complaint, however, the case must reach some sort of disposition: once a party engages the court, the administrative imperatives of the court require that the case be resolved. The ‹ling of a complaint does not mean that, under the law, a wrong has been committed or harm has been...