I began to notice it about ten years ago. That’s when I first began to see judges, mediators
and lawyers predicting very quickly how cases they knew very little about would turn out.
Sometimes they were right and sometimes they were wrong. But, being wrong occasionally,
never seemed to deter them from using their legal crystal ball.
My first experience with this was when one of my favorite judges would take the lawyers
into his chambers. After reading the pleadings only, the judge would tell everyone what result he
felt was inevitable. He would then coax, nudge, push and pull the attorneys to settle the case the
way he saw it turning out. I got sweet revenge one day when the judge predicted a defense
verdict in a jury case and the jury returned a verdict in favor of my client. Sometimes crystal
balls get foggy. On the other hand, I’m the first to admit that the judge was more often right than
wrong when he predicted outcomes.
I then remember participating in a neutral evaluation. This was in the federal court
system. Neutral evaluation is a form of alternative dispute resolution where a very experienced
attorney listens to summaries of the case and then explains how they think the case will turn out
if it is tried to a verdict. I found the experience very useful. In fact, I count neutral evaluation as
my favorite form of alternative dispute resolution. When it is done right, after the neutral
evaluator speaks, a mediation often breaks out and the case settles.
I recently had a mediation before a retired judge. One of this mediator’s methods is to get
the parties to predict the outcome of their own cases. The wisdom here is to get the parties to be
realistic in evaluating their own cases. In that fashion, they will be realistic in trying to settle
their cases. I have come to enjoy this type of full-court press. The way I see it – if I can’t justify
what I want for an outcome to a mediator, how am I ever going to do it with a judge or a jury?
When I first observed this type of fortune telling, I honestly didn’t like it. I would call
these people quick-draw artists. I equated this practice with laziness – people who wanted to say
they knew the outcome without putting in the time necessary to really know how it might turn
out. But now – my attitude has changed. I’ve joined “Generation X” in search of instant
gratification. I want to know what I want to know now!
I’ve now made it part of my practice to predict early on how a case can and will be won.
I create litigation themes very early on. I come up with a theory of the case and then use that
theory in my early litigation efforts – such as engaging in discovery practice. Call it the rule of
primacy or call it whatever. I’m making an early judgment about how to win my case figuring I
can always alter my beliefs later if I end up going down a different path than I had originally
Now that I’m telling fortunes just like judges and mediators, I am able to begin preparing
my opening statement and closing argument in a jury case on the first day I meet my client. My
results seem no different than the judge who opened my eyes to this method many years ago.
Sometimes I’m right and sometimes I’m wrong. On the whole, however, I feel I’m doing all