Getting that matter out of the “ugh” pile: Four strategies
All matters are not created equal. Some are a challenge and if we’re lucky, some are a true pleasure. A few, however, make us go “ugh.”
What happens to those matters? Many of them die a natural death, whether as deserving losses or, as in personal injury files, because a plaintiff’s health has recovered. But once in a while a matter is administratively dismissed due to the new Rule 48.14. Avoid this by treating your least favourite matters like a compost heap: give them a churn now and then, let the fresh air and disinfecting sunlight in. Sometimes that motion you thought the opposing party would bring doesn’t happen, or an argument you thought would hurt your client’s case can be successfully challenged. Regular review will help you identify when another report, new evidence, or a different argument can help.
Here are four techniques you can try to get matters out of the “ugh” pile:
1. Challenge your conclusions
Your experience with similar cases may lead you to make certain assumptions. Perhaps the defendant’s starting position, revealed in early negotiations, is unlikely to soften; the client doesn’t warm up to the prospect of settlement; or the court looks unfavourably on some aspect of the evidence.
The only way to find out if you are right is to test your assumptions. Identify an action that will meet the problem head on (perhaps a meeting with the client to discuss next steps, or a new round of negotiations), and follow through. Things will go better or worse than expected, but either way, you will know more and that’s a win.
2. Enlist fresh eyes
If a matter feels stuck, tunnel vision may be the cause. The reality is that another perspective can help. Taking due care with client confidentiality, seek out the advice of a mentor, a colleague, or a member of the support staff. Explain the problems with the matter as you see them. Having your point of view challenged by another person can be an asset when it comes to a stuck matter. New perspectives may open up fresh approaches.
3. Have a listen
A hidden cause of matter frustration can be incomplete information. Why is it a hidden cause? Because holes in our knowledge can be concealed by confirmation bias – the phenomenon of only seeing evidence that confirms our current opinion. One way to overcome confirmation bias is to call a listening meeting.
A listening meeting is any kind of meeting, phone conversation, or (worst case) written exchange that involves a two-way flow of information. Leaving a voicemail for a client is not a listening meeting. Sending an emailed ultimatum to an opposing party is not a listening meeting. The only information that matters, in a listening meeting, is the information that comes from the other party. Listening is surprisingly hard. But the active creation of opportunities to learn what you may not know about the circumstances, hopes, and expectations of litigants can shed new light on a matter.
4. Recover right
After a negative development – for example, the discovery of inconvenient evidence, the receipt of a less-than-convincing expert report, or the offhand rejection of what we thought was a solid settlement offer – we may want to avoid the matter. Our intention may be to set aside the matter and revisit it later but these can end up in the “ugh” pile.
A short break from the matter can be a good idea. For both lawyer and client, taking a step back from a matter can promote a fresh perspective and can prevent the taking of rash steps. But don’t let inertia set in. Set a date in your calendar to revisit the matter in the near future.
Many types of practice software incorporate inactivity alarms. Setting one up to remind you that there has been no work on a matter for a month can be just the reminder you need to bounce back from the setback. When you see the alarm, immediately contact the client or opponent. Do it in an upbeat way and talk about next steps.
Start with one or more of these techniques
Pick the oldest matter from the pile and follow one of these steps. Test an assumption, seek a second opinion, set up an opportunity to listen, or propose a fresh start. Actions create the momentum we need to complete tasks, and the reward is the relief we feel for getting the tough stuff done.
Nora Rock is Corporate Writer and Policy Analyst at LAWPRO.