Dominance: of Canines and Counsel

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Bandit, a 2-year-old boxer that we got from the rescue shelter, recently needed some exercise. To make a long story short, we took our dog to the dog park — something that I didn't know existed before I got Bandit — and let him run around.

There were a number of dogs there. One of them was an Airedale terrier. I think the Airedale wanted to assert his dominance (sort of reminds me of some lawyers that I've practiced against) over Bandit. Generally speaking, from everything that I've heard, boxers don't start fights, but they also don't back down.

Reminds me a little bit of me when I was in practice. I didn't want to start a fight, but there was no way that any of my clients was going to get raped in court. I would fight and do whatever I needed to do to protect my client.

That's what Bandit did in the dog park. The net result was the Airedale and the boxer locked teeth. Consequently, the owner of the Airedale and I sought to separate them. It was a difficult challenge, and in the process both dogs suffered some wounds, as did the owners. I did something I knew I should not have done: I put my hand in the middle of the two dogs.

There's a heck of a metaphor in this dog situation. Are you a dominant lawyer? If so, are you seeking dominance for the benefit of your client, or because that's the only way you know how to practice? Are you seeking a reasonable and rational approach to protect your client under all the prescripts of the statutory codes, or just looking to be the top dog?

When I was practicing, I remember being frustrated with a number of adversaries who refused to take the time to review and really understand their case so that we could have meaningful settlement discussions in advance of the hard preparation for trial. When I came across somebody like that, I simply had to say to my client, "Look, this is going to cost you more money, but I have to prepare for trial, and there is no way that I can bring the other lawyer to the table to talk about a settlement that would be fair to, and accepted by, both sides."

Oftentimes, I would go to the courthouse steps and there would be a settlement — negotiated exactly in accordance with my understanding of the code and what each party was entitled to. The problem was that the client suffered by having to pay significant additional costs that would not have had to be paid had there been a settlement earlier.

So back to the dogs and my metaphor. Were the two dogs separated? Yes. Does that mean one dog was dominant over the other? Not really. In the litigation context, do the parties ultimately separate? Yes. Do the parties ultimately go their own way? Yes. But have we, as lawyers, tried to assert dominance along the way?

What do we do to help our clients preserve the limited assets that they have when they come to the table in controversy? What have we done to be part of the solution and not part of the doggone problem?

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